Mealey's Elder Law

  • July 23, 2021

    Supreme Court Asks Provider To Weigh In On Medicare-Dialysis Case

    WASHINGTON, D.C. — The U.S. Supreme Court on July 21 requested that a medical provider respond to a joint petition after the company previously indicated that it would not do so.

  • July 23, 2021

    Wis. High Court Asked To Dismiss Wrongful Death Claim Against Residential Facility

    MADISON, Wis. — The “distinction between nursing home and CBRF [community-based residential facility] is without a difference as it pertains to Chapter 655” of the Wisconsin Statutes, a corporation that operates both types of facilities and a hospital on the same campus tells the Wisconsin Supreme Court in a July 14 brief urging reversal of an appellate court decision overturning the dismissal of a wrongful death claim against the CBRF because it is not a health care provider.

  • July 22, 2021

    6th Circuit Affirms ACA Age Discrimination, Expert Opinion Rulings

    CINCINNATI — The Patient Protection and Affordable Care Act (ACA) incorporates standards from the discrimination statutes from which it borrows, including administrative exhaustion requirements, a court properly admitted experts on the question of the medical appropriateness of an elderly woman’s transfer, and without experts of his own, a son lacks the necessary evidence for his remaining claims, a Sixth Circuit U.S. Court of Appeals panel said July 20 in affirming dismissal and summary judgment rulings.

  • July 21, 2021

    2nd Circuit Grants Temporary Stay Of Injunction In Medicare Hospital Stay Appeal Case

    NEW YORK — The Second Circuit U.S. Court of Appeals on July 16 granted a temporary stay of a district court’s permanent injunction requiring the Department of Health and Human Services (HHS) to create appeals procedures for Medicare beneficiaries who are admitted to the hospital as inpatients and then reclassified as outpatients pending a decision on the agency’s motion for a stay by a panel; the issue was referred to the panel that considered a 2015 appeal in the long-running case.

  • July 21, 2021

    1st Circuit Declines Request To Adopt Expanded Single Filing Rule In Age Bias Suit

    BOSTON — A First Circuit U.S. Court of Appeals panel on July 9 declined an employee’s request in an age bias lawsuit that it adopt a version of the “single file” rule that would permit a nonexhausting plaintiff to piggyback on a timely filed administrative filing that did not provide notice of wider spread discrimination, writing that the case before it and the circumstances presented did “not lend themselves to a thoughtful application of a reasonable variant of the rule.”

  • July 19, 2021

    Ohio Panel Affirms:  Grandparent Visitation Awarded Under ‘Special Weight’ Standard

    TOLEDO, Ohio — An Ohio appellate court on June 30 affirmed a trial court’s grant of limited grandparent visitation, finding that the lower court properly applied the statutes governing grandparent visitation and that one of those statutes was not unconstitutionally applied to the case because the court gave “special weight” to the mother’s wishes and found that visitation would be in the children’s best interests.

  • July 19, 2021

    Nebraska Supreme Court Rejects Claims That Will Was Incomplete, Unduly Influenced

    LINCOLN, Neb. — A son who claimed that his deceased father’s will was invalid failed to show that the residuary clause conflicted with other provisions in the will or that the subject or “object of the devise is so indefinite or uncertain as to be invalid,” the Nebraska Supreme Court ruled July 2, affirming a trial court’s determination that the will was valid and entitled to probate.

  • July 19, 2021

    Louisiana Supreme Court Rules Attestation Clause Is Valid On Rehearing

    NEW ORLEANS — An attestation clause in a notarial will that did not expressly state that the testator declared that he signed the testament “at the end of the testament and on each other separate page” was valid because it was in substantial compliance with the Louisiana statute, a majority of the Louisiana Supreme Court held June 30 on rehearing, reinstating the reversal of the trial court’s nullification of the will.

  • July 16, 2021

    Utah Supreme Court Recognizes Tort Of Intentional Interference With Inheritance

    SALT LAKE CITY — The Utah Supreme Court on July 1 recognized the tort of intentional interference with inheritance but held that such a claim “is available only to the extent the Utah Uniform Probate Code . . . does not provide a remedy for the specific claims,” reversing one of three rulings in an estate dispute and remanding for the lower court to analyze the specific allegations in the claim and determine which could have been resolved as part of the probate action.

  • July 16, 2021

    6th Circuit Affirms Nominal Damages Award In Municipal Pension Dispute

    CINCINNATI — Although a municipal retirement system violated a retiree’s due process rights by failing to provide him with a hearing related to the reduction of his pension benefits, it was the retiree’s failure to meet the requirements of his severance agreement, not the system’s actions, that led to the reduction, the Sixth Circuit U.S. Court of Appeals ruled July 6, affirming a lower court’s award of $1 in nominal damages to the retiree.

  • July 14, 2021

    Mississippi Supreme Court Renders Summary Judgment In Medical Negligence Suit

    JACKSON, Miss. — A nursing home met its burden for summary judgment against a widow suing after the death of her husband who failed to present a sworn report to show a prima facie case of medical negligence, the Mississippi Supreme Court ruled July 1, reversing a trial court’s ruling.

  • July 12, 2021

    Ohio Court: Arbitration Consent Allegedly Forged; Evidentiary Hearing Required

    CLEVELAND — A trial court’s denial of stay in a nursing home wrongful death case was reversed and remanded to the lower court to conduct an evidentiary hearing on evidence of whether a decedent’s signature on a voluntary arbitration agreement was forged, an Ohio appellate court ruled July 1.

  • July 12, 2021

    Georgia Appeals Court Reverses Arbitration Order In Wrongful Death Suit

    ATLANTA — A man appointed as guardian/conservator to his father lacked authority to sign an arbitration agreement with the residential community where his father resided at the time of his death, a Georgia Court of Appeals panel affirmed June 25, reversing a trial court’s order compelling arbitration in the man’s wrongful death lawsuit.

  • July 09, 2021

    Fact Issues Preclude Immunity, Ohio Panel Says, Reversing Nursing Home Suit Ruling

    TOLEDO, Ohio — Summary judgment based on political subdivision immunity should not have been granted in favor of a county-run nursing home, an Ohio appellate court ruled June 30, finding fact issues concerning whether staff “exercised its discretion in a reckless manner and whether such recklessness resulted in [the resident’s] injury and death” and reversing and remanding the trial court’s judgment that had dismissed all claims in the negligence and wrongful death suit.

  • July 08, 2021

    5th Circuit Upholds Bias Ruling For Employer, Denies Sanctions Motion

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on June 9 in a per curiam opinion upheld a trial court’s ruling for a Texas city accused of race and age bias by an employee fired after she was found to have a sanctions order against her for allegedly lying under oath in a probate case but denied the city’s motion for sanctions against the former employee’s attorney due to no showing of malice.

  • July 02, 2021

    Officials, Group Argue Against High Court Review Of Law Impacting Union Activity

    WASHINGTON, D.C. — Washington state officials and Campaign to Prevent Fraud and Protect Seniors filed separate briefs on July 1 in the U.S. Supreme Court opposing a petition for a writ of certiorari challenging the constitutionality of a state law meant to protect the elderly from financial crimes that contains a provision that prevents unions interested in representing public-sector employees from being able to communicate with those who serve the elderly.

  • July 02, 2021

    In First Impression Case, Montana High Court Rules Trust Not A Countable Asset

    HELENA, Mont. — There are no circumstances under which payment from an irrevocable trust’s corpus could be made for benefit of the settlor, the Montana Supreme Court ruled June 29, reversing and remanding a lower court’s ruling that affirmed an administrative law judge’s denial of Medicaid benefits based on the determination that the trust was a countable resource.

  • July 02, 2021

    New York Panel Vacates $2.5 Million Pain And Suffering Award Against Nursing Home

    NEW YORK — Finding that a trial court erred in omitting “any discussion of ‘consciousness’ from its jury charge or the verdict sheet,” a New York appellate panel on June 15 vacated a jury’s $2.5 million pain and suffering award to the widow of a nursing home resident who suffered a brain injury and died after the facility failed to monitor his blood sugar and timely transfer him to a hospital.  However, the panel affirmed the lower court’s directed verdict on liability and causation.

  • July 01, 2021

    Colorado Shuttle Service Settles EEOC Age Bias Suit For $15,000

    DENVER — A Telluride, Colo., shuttle service company will pay $15,000 to end a lawsuit by the Equal Employment Opportunity Commission alleging that it violated the Age Discrimination in Employment Act (ADEA) when it told a 79-year-old applicant that he would not be hired because he was too old to be covered as a driver under the company’s commercial auto insurance policy, the EEOC announced June 30.

  • June 28, 2021

    Provider Won’t Oppose Joint Petition In Medicare-Dialysis Case

    SAN FRANCISCO — A provider of end-stage renal disease treatments on June 24 waived its right to respond to a joint petition asking the U.S. Supreme Court for review of a ruling reinstating its claims and holding that uniform reimbursement for dialysis treatments runs afoul of the Medicare Secondary Payor Act (MSPA) under a disparate impact analysis.