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Mealey's Elder Law

  • May 30, 2023

    New York Court Affirms Injunction Preventing Senior Care Copayments

    NEW YORK — A preliminary injunction preventing collection of a $15 copayment under New York’s Senior Care program will likely prevent harm in the form of delayed or skipped medical care or the inability to pay for other essentials, a New York appellate court said in affirming issuance of the injunction.

  • May 26, 2023

    Delaware Benefits Committee Seeks Reversal Of Stay In Medicare Advantage Dispute

    DOVER, Del. — The Delaware State Employee Benefits Committee (SEBC) argued in a May 25 opening brief in the Delaware Supreme Court that the SEBC’s decision requiring state retirees with Medicare supplemental plans to switch to Medicare Advantage (MA) plans was not governed under the Delaware Administrative Procedures Act (APA) and, therefore, a lower court’s order staying the SEBC’s decision must be reversed (Secretary Claire DeMatteis, et al. v.  RiseDelaware Inc., et al., No. 178, 2023, Del. Sup.). 

  • May 25, 2023

    Judgment Denied In FCA Suit Against Pharmacy Accused Of Overcharging Medicare

    SACRAMENTO, Calif. — A California federal judge denied summary judgment in a whistleblower’s suit against a pharmacy, alleging that it violated the federal False Claims Act (FCA) and the California False Claims Act (CFCA) by overcharging the state of California and federal government for Medi-Cal and Medicare Part D nursing home patients, finding that fact disputes remain as to the actual reason for firing the whistleblower.

  • May 25, 2023

    U.S. Supreme Court: Owner Of Seized Condo Plausibly Alleged Takings Clause Claim

    WASHINGTON, D.C. — A unanimous U.S. Supreme Court on May 25 ruled that an elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt plausibly alleged a claim under taking clause of the Fifth Amendment to the U.S. Constitution.

  • May 23, 2023

    Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent POA Signature

    FRANKFORT, Ky. — A Kentucky appeals court affirmed a lower court order denying a nursing home’s motion to compel arbitration in an executor’s negligence and wrongful death suit filed against it on behalf of a deceased former resident, finding that the home failed to establish the arbitration agreement’s validity because it was signed by the decedent’s spouse in her capacity as his wife rather than power of attorney (POA) and was not a condition for admission.

  • May 22, 2023

    Illinois Appeals Court Remands Reverse Mortgage Dispute To Allow Competency Defense

    CHICAGO — An Illinois appeals court found that a lower court erred in striking the affirmative defense of a son who claims that his mother lacked the mental capacity to agree to a reverse mortgage and vacated the summary judgment award granted to the mortgage company and judgment of foreclosure and sale.

  • May 12, 2023

    Declaratory Relief Claims Tossed In Class Suit Alleging Understaffed Care Homes

    NASHVILLE, Tenn. — A Tennessee federal judge granted nursing home facilities’ motion to dismiss claims for declaratory and injunctive relief in a consolidated putative class action suit against them claiming that understaffing resulted in residents receiving inadequate services, agreeing with the nursing home that because the named plaintiffs are deceased or no longer facility residents, those claims should be dismissed.

  • May 11, 2023

    Rejection Of Day Late Arbitration Demand In Age Bias Dispute Upheld By 11th Circuit

    ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a trial court’s denial of a terminated worker’s petition to vacate an arbitration award in an age bias dispute, finding that the worker failed to show that an arbitrator erred in concluding that the late demand was de minimis and that the Age Discrimination in Employment Act’s (ADEA) “piggybacking doctrine” did not apply to arbitration.

  • May 10, 2023

    Nonagenarian Conservatorship Remains For Man With Over $40M In Assets, Panel Says

    SAN BERNARDINO, Calif. — A California appellate court affirmed a lower court’s dismissal of a spouse’s challenge to the conservatorship for her 97-year-old husband, finding that the lower court correctly ruled that nonappointed counsel are disqualified from representing the spouse without her husband’s consent and that because he is incapacitated, he cannot provide that consent.

  • May 10, 2023

    9th Circuit:  Workers Failed To Show Early Retirement Program Was Adverse Action

    SAN FRANCISCO — Flight attendants who were offered an early retirement option in the wake of the coronavirus pandemic and flight cancellations failed to show in their age bias putative class complaint that the retirement offering by American Airlines Inc. was an adverse employment action, a Ninth Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s dismissal of the case.

  • May 09, 2023

    Iowa High Court Affirms Order Denying Spousal Transfer Of Decedent’s ERISA Plan

    DES MOINES, Iowa — The Iowa Supreme Court affirmed a lower court order denying a surviving spouse’s request to transfer her deceased husband’s 401(k) profit-sharing plan governed by the Employee Retirement Income Security Act, finding that the lower court correctly held that without a divorce or separate maintenance proceeding, it lacked the statutory authority to make the transfer.

  • May 08, 2023

    Split Mass. High Court Reverses Dismissal In Veterans Home COVID-19 Death Case

    BOSTON — A split Massachusetts Supreme Judicial Court reversed a lower a court’s dismissal of criminal charges against a former superintendent and medical director of a veterans home for their roles in commingling COVID-19-symptomatic residents with asymptomatic residents, leading to 76 deaths, finding that the defendants’ failure to comply with infection control practices constituted wanton or reckless behavior.

  • May 08, 2023

    Panel Refuses To Disturb Finding That Professional Services Exclusion Bars Coverage

    PASADENA, Calif. — The Ninth Circuit U.S. Court of Appeals on May 5 refused to disturb its holding that a commercial general liability insurance policy’s professional services exclusion bars coverage for the insured’s liability in an underlying lawsuit alleging negligence, loss of consortium, financial elder abuse and fraud and that the insurer is entitled to the reimbursement of the $2 million it paid to settle the underlying lawsuit.

  • May 05, 2023

    Judge Rules On Executor’s Dismissal Motion In Care Home Suit To Compel Arbitration

    OWENSBORO, Ky. — A Kentucky federal judge found that because a son who alleges that his mother received deficient care in a nursing home was a party to an arbitration agreement, the son can arbitrate his wrongful death claim against the nursing home in his separate state court suit, but the judge dismissed survivor claims brought by the son because he lacked the power to arbitrate on his mother’s behalf.

  • May 04, 2023

    Class Settlement Of Suit Against SAG-AFTRA Health Fund Gets Preliminary OK

    LOS ANGELES — Plaintiffs who sued the SAG-AFTRA Health Fund and related parties in California federal court under the Employee Retirement Income Security Act over benefit cuts and a merger were granted preliminary approval on May 3 of a class settlement involving a $15 million fund, additional payments totaling up to $5.6 million and nonmonetary relief.

  • May 04, 2023

    Panel Rules On Agency Issues In Estate’s Negligence Suit Against Hospital, Doctor

    ELGIN, Ill. — An Illinois appellate court granted in part and reversed in part and remanded an estate administrator’s appeal of a trial court’s summary judgment for a hospital in a negligence and wrongful death suit against the hospital and a treating physician after the administrator’s husband died there, finding that the trial court erred by granting summary judgment regarding the estate administrator’s claims but did not err on claims made under the Illinois Family Expense Act because the administrator had notice of the doctor’s independent contractor status.

  • May 03, 2023

    Government Wins Summary Judgment In Pension Dispute Involving The MPRA

    WASHINGTON, D.C. — Ruling that the physical-takings test does not apply and that the plaintiffs “have not demonstrated that a regulatory taking occurred,” a U.S. Federal Claims Court judge granted summary judgment for the government in a suit seeking compensation for cuts to the plaintiffs’ vested pension benefits that plan trustees made under the Multiemployer Pension Reform Act of 2014 (MPRA).

  • May 02, 2023

    Relator’s Motion To Depose Actuaries Granted In FCA Suit Alleging False CMS Bids

    LOUISVILLE, Ky. — A Kentucky federal magistrate judge granted a relator’s motion to depose  actuaries in a False Claims Act (FCA) suit alleging that Humana Inc. knowingly submitted false bids to the Centers for Medicare and Medicaid Services (CMS), resulting in overpayment to Humana, finding that though the additional depositions “may prejudice Humana by diverting time and resources from trial preparation, the stakes in this litigation are substantial and the potential benefit of the discovery outweighs Humana’s burden.”

  • May 02, 2023

    Michigan Appeals Court Reverses Exclusion Of Expert, Summary Judgment Grant

    DETROIT — A Michigan appeals court held that a “trial court appeared more concerned with conducting a miniature trial” than adequately determining the admissibility of a causation expert retained by a woman who sued a nursing home for medical malpractice and reversed a grant of summary judgment and remanded the case.

  • May 02, 2023

    Order Compelling Arbitration Affirmed In Wrongful Death Suit Against Nursing Home

    TRENTON, N.J. — A New Jersey appellate court affirmed a lower court order compelling arbitration in an executor’s wrongful death suit against a nursing home on behalf of a man who died after a monthlong stay there, finding that despite state law voiding such agreements “as against public policy,” U.S. Supreme Court precedent favoring arbitration requires enforcement of the agreement.