Mealey's Elder Law

  • April 03, 2020

    Washington Nursing Home Faces CMS Fine In Wake Of COVID-19 Outbreak

    SEATTLE — A Washington nursing home at the epicenter of the nation’s first wave of deaths from COVID-19 faces more than $600,000 in fines and the possible termination of its Medicare provider agreement as a result of its handling of the outbreak, according to a letter it received April 1 from the Centers for Medicare & Medicaid Services (CMS).

  • April 03, 2020

    6th Circuit Reinstates Public School Administrator’s Federal Age, Sex Bias Claims

    CINCINNATI — A former public school administrator may proceed with his claims for age and gender bias under federal law after showing that there is a genuine issue of material fact as to pretext for all of the school district’s reasons a younger female candidate was chosen for a newly created position (Gregory Stokes v. Detroit Public Schools, No. 19-1773, 6th Cir., 2020 U.S. App. LEXIS 10451).

  • April 03, 2020

    Retired Worker: Railroad Retirement Board Decisions Are ‘Judicially Reviewable’

    WASHINGTON, D.C. — The Railroad Retirement Board’s final decisions “are judicially reviewable,” including those denying reopening of prior benefits determinations, a retired carpenter argues to the U.S. Supreme Court in his March 31 opening brief, asking for reversal of a lower appellate court’s judgment and remand for further proceedings concerning his disability benefits (Manfredo M. Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup.).

  • April 02, 2020

    Colorado Shuttle Service Sued By EEOC For Age Discrimination

    DENVER — A Telluride, Colo., shuttle service company 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 Equal Employment Opportunity Commission alleges in a March 31 complaint filed in the U.S. District Court for the District of Colorado (Equal Employment Opportunity Commission v. San Miguel Mountain Ventures, LLC, No. 20-881, D. Colo.).

  • March 26, 2020

    Modified Class Permitted To Appeal Denial Of Medicare Coverage For Hospital Stays

    HARTFORD, Conn. — The portion of a class of Medicare beneficiaries placed on observation status after being admitted the hospital as inpatients and now suing the federal government for depriving them of their property interest in Part A coverage have shown that the U.S. secretary of Health and Human Services (HHS) violated the due process clause of the Fifth Amendment to the U.S. Constitution, a federal judge in Connecticut ruled March 24, ordering that those members should be permitted to appeal the denial of their coverage (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn., 2020 U.S. Dist. LEXIS 50636).

  • March 26, 2020

    Florida Appeals Panel Quashes Discovery Of Nursing Home Patient Records

    TALLAHASSEE, Fla. — Granting in part a nursing home’s petition for certiorari of two discovery orders in a wrongful death lawsuit, a Florida appeals panel on March 24 found that an order requiring the production of certain patient records violated privacy protections of Florida laws and the state’s constitution, also holding that the requested information was not likely to lead to admissible evidence (Saints 120 LLC v. Michaele M. Moore, No. 1D19-973, Fla. App. 1st Dist., 2020 Fla. App. LEXIS 3811).

  • March 26, 2020

    Arkansas Panel Denies Arbitration Of Wrongful Death Suit Due To Signed Checklist

    LITTLE ROCK, Ark. — A trial court did not err when it considered a checklist submitted by a nursing home in support of its motion to compel arbitration in a wrongful death suit on which the legal guardian of the decedent indicated that she did not wish to waive a jury trial together with the arbitration agreement and ruled in favor of the guardian, an Arkansas appellate panel ruled March 18 (Camden-Progressive Eldercare Services, Inc. v. Gloria Cooper, et al., No. CV-19-357, Ark. App., 2020 Ark. App. LEXIS 206).

  • March 25, 2020

    Justice Orders Arbitration In Wrongful Death Against Nursing Home, Employees

    NEW YORK — A New York state court justice on March 9 ruled that wrongful death and punitive damages claims against a nursing home and its employees should be arbitrated because the arbitration provision in an admission agreement was enforceable and because claims sounding in negligence are subject to the provision (Bernadette Mitchell, et al. v. Dewitt Rehabilitation and Nursing Center Inc, et al., No. 805208/2019, N.Y. Sup., New York Co., 2020 N.Y. Misc. LEXIS 1175).

  • March 25, 2020

    Judgment Affirmed For Nursing Home Operators On Elder Abuse Claim

    SAN FRANCISCO — After finding no error with a trial court’s exclusion of an opinion on causation, a California appeals panel upheld summary judgment to two nursing home operators on elder abuse and wrongful death claims (Diane Lowery v. Kindred Healthcare Operating, Inc., et al., No. A153421, Calif. App., 1st Dist., Div. 4, 2020 Cal. App. Unpub. LEXIS 1845).

  • March 24, 2020

    Hawaii Panel Finds Special Administrator Necessary In Administration Of Estate

    HONOLULU — A special administrator should be appointed to administer a potential claim against the personal representative of a decedent’s estate who may have negligently advised the decedent in planning her estate because the personal representative’s self-interest creates a conflict with his fiduciary duties to the estate, a Hawaii appellate panel ruled March 20, reversing and remanding (Estate of Joanna Lau Sullivan, No. CAAP-17-0000826, Hawaii App., 2020 Haw. App. LEXIS 108).

  • March 24, 2020

    Judge Upholds County Nursing Home’s Win In Grandson’s Failure-To-Train Suit

    PHILADELPHIA — A federal judge in Pennsylvania on March 20 rejected all grounds of an estate administrator for judgment as a matter of law or a new trial in his long-running feud with a county-run nursing home, including the administrator’s claim that his expert’s testimony on staff training was improperly excluded from trial (Carl Louis Robinson v. Fair Acres Geriatric Center, et al., No. 2:15-cv-06749, E.D. Pa., 2020 U.S. Dist. LEXIS 48305).

  • March 24, 2020

    9th Circuit Revives Suit Saying Hospital Unnecessarily Admitted Elderly Patients

    PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel on March 23 reversed a ruling dismissing a woman’s False Claims Act (FCA) suit accusing a hospital of admitting elderly patients from skilled nursing facilities for medically unnecessary in-patient care to submit false bills to Medicare, finding that she was not required to plead that the doctor’s opinions to admit the patients were “objectively false” (United States ex rel. Jane Winter v. Gardens Regional Hospital and Medical Center Inc., et al., No. 18-55020, 9th Cir., 2020 U.S. App. LEXIS 8986).

  • March 23, 2020

    Executor Petitions To Settle Wrongful Death, Survival Claims Against Rehab Hospital

    LANCASTER, Pa. — The executor of the estate of an elderly man who allegedly died from injuries that occurred during stays at a rehabilitation hospital and a nursing home in Pennsylvania on March 17 filed a petition in state court seeking approval to settle his wrongful death and survival claims against the rehabilitation hospital for $45,000; he previously settled his claims against the nursing home defendants for $175,000 (Andrew Collins v. Manor Care of Lancaster, PA, LLC, et al., No. CI-2012-15908, Pa. Comm. Pls., Lancaster Co.).

  • March 19, 2020

    Some Defendants Dismissed, Others Stay In Connecticut Senior Living Negligence Case

    NEW HAVEN, Conn. — A federal judge in Connecticut on March 16 dismissed a defendant company and one of its shareholders from a negligence case against a senior living facility but allowed a resident’s claims against the facility’s owner and management company to proceed, along with an unfair trade practices claim against the facility’s executive director (Dorina Schachter, et al. v. Sunrise Senior Living Management, Inc., et al., No. 18-cv-953, D. Conn., 2020 U.S. Dist. LEXIS 44964).

  • March 18, 2020

    Judge Refuses To Vacate Man’s Fraud Sentence Over Restitution Amount

    ST. LOUIS — A federal judge in Missouri on March 2 denied a man’s motion to vacate a 51-month prison sentence and order requiring him to pay $2.2 million in restitution after he pleaded guilty to one count of health care fraud for organizing a scheme that involved the submission of bills to Medicare for medically unnecessary ankle-foot orthotics for elderly patients, holding that his counsel did not act ineffectively when negotiating the restitution amount (Donald Brian Havey v. United States, No. 17-CV-00852 JAR, E.D. Mo., 2020 U.S. Dist. LEXIS 35304).

  • March 17, 2020

    CMS Directs Nursing Homes To Restrict Visitation, End Communal Activities

    BALTIMORE — The Centers for Medicare & Medicaid Services (CMS) on March 13 issued updated guidance directing nursing homes to significantly restrict visitors and nonessential personnel and cancel all group activities and communal dining in an effort to protect residents from the novel coronavirus.

  • March 16, 2020

    Federal Judge Allows UCL Claim To Proceed, Dismisses Elder Abuse Claim Based On Fraud

    LOS ANGELES — A federal judge in California on March 11 held that at this juncture, a plaintiff can seek damages for breach of contract and remedies under California’s unfair competition law (UCL) as alternative theories of recovery in his lawsuit against his life insurer but dismissed without prejudice an elder abuse claim based on fraud and a bad faith claim to the extent that the plaintiff seeks to recover in tort (Viesturs Petersons v. Transamerica Life Insurance Company, et al., No. 20-00661, C.D. Calif., 2020 U.S. Dist. LEXIS 43304).

  • March 13, 2020

    Class Action:  Life Insurer Refuses To Comply With California Insurance Code

    SACRAMENTO, Calif. — A beneficiary of a life insurance policy filed a class action complaint on March 10 in a California federal court, alleging claims for declaratory relief, breach of contract, unfair competition and financial elder abuse against a life insurer for its purported refusal to comply with the mandatory provisions of California Insurance Code and common law that regulates the lapse and termination of life insurance policies (Sheryl Clark, et al. v. Transamerica Life Insurance Company, No. 20-00539, E.D. Calif.)

  • March 13, 2020

    Officials:  Second Class Certification Motion In Medicaid Waiver Suit Untimely

    TALLAHASSEE, Fla. — Florida officials named as defendants in a class action lawsuit brought by five disabled individuals who claim the they are eligible for home and community-based services under the state’s limited-enrollment Medicaid waiver program but are currently waitlisted and thus at risk of being institutionalized say in a March 9 brief filed in federal court in Florida that the plaintiffs’ second motion for class certification should be denied because it is untimely and because they have changed the class definition without filing an amended complaint (Benjamin Alexander, et al. v. Mary Mahew, et al., No. 18-569, N.D. Fla.).

  • March 12, 2020

    Missouri AG Seeks TRO Against Televangelist For Marketing Coronavirus Treatment

    GALENA, Mo. — Missouri Attorney General Eric Schmitt on March 10 filed suit in state court, seeking a temporary restraining order (TRO) to stop televangelist Jim Bakker and his production company from misrepresenting to elderly consumers that “Silver Solution” and related products are effective treatments for the novel coronavirus (Missouri v. Jim Bakker, et al., No. N.A., Mo. Cir., Stone Co.).