Mealey's Elder Law

  • October 16, 2019

    Kentucky Panel:  Long-Term Care Bill Of Rights Claim Survives Resident’s Death

    FRANKFORT, Ky. — A Kentucky appellate panel on Oct. 11 for a second time ruled that a claim under the state’s long-term care bill of rights statute survives a resident’s death, finding that the trial court was not compelled to dismiss the claim pursuant to Overstreet v. Kindred Nursing Centers Limited Partnership, which was decided during the pendency of the first appeal (Holly Wilson v. Spring View Health & Rehab Ctr., No. 2017-CA-001333-MR, Ky. App., 2019 Ky. App. Unpub. LEXIS 729).

  • October 15, 2019

    U.S. Supreme Court Will Not Consider Case Involving Vesting Of Retiree Benefits

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 15 denied review of an Eighth Circuit U.S. Court of Appeals ruling reversing and remanding a lower federal court’s amended opinion that granted a motion for preliminary injunction filed by a class of retirees seeking to stop the termination of their health care benefits, finding that the benefits were not vested as a matter of law (Augustine Pacheco, et al. v. Honeywell International Inc., No. 19-341, U.S. Sup.).

  • October 14, 2019

    Expert’s Opinions Pared In Suit Over Elderly Woman’s Treatment By Association

    LAS VEGAS — Only one of an expert witness’s eight opinions on the level of care provided to an octogenarian survived a motion to strike Oct. 11 when a Nevada federal judge ruled that most of the opinions about the conduct of a senior living community amounted to inadmissible legal conclusions (Thomas Hillery, et al. v. Sun City Anthem Community Association, Inc., No. 2:17-cv-02639, D. Nev., 2019 U.S. Dist. LEXIS 177313).

  • October 14, 2019

    Georgia Appeals Panel Upholds $1.5M Wrongful Death Verdict Against Nursing Home

    ATLANTA — A Georgia appeals court panel on Oct. 10 affirmed a judge’s ruling ordering a nursing home to pay 20 percent of a $7.6 million wrongful death verdict, finding that the trial court judge did not err when denying the plaintiffs’ motion for a directed verdict on apportionment and the facility’s motion challenging the plaintiffs’ request to strike a juror (Lowndes County Health Services LLC v. Gregory Copeland, et al., Nos. A19A1552, A19A1553, Ga. App., 5th Div., 2019 Ga. App. LEXIS 554).

  • October 11, 2019

    Judge Dismisses Nursing Home Residents’ Medicaid Action Against Illinois Officials

    CHICAGO — A federal judge in Illinois on Oct. 8 dismissed for failure to state a claim a putative class action brought by nursing home residents who allege that Illinois health officials have violated the Medicaid Act and other laws by failing to deduct the medical expenses they incurred before they became eligible for Medicaid when calculating their income to determine how much they must pay for their nursing home care (Mary Nasello, et al. v. Theresa A. Eagleson, et al., No. 18-7597, N.D. Ill., 2019 U.S. Dist. LEXIS 174318).

  • October 11, 2019

    Nebraska Supreme Court Reverses Finding That Payment Counted Against Trust Share

    FREMONT, Neb. — A Nebraska trial court erred when it determined that a mother’s $200,000 transfer of funds to one of her children was an ademption of that daughter’s share of her mother’s trust because the trust, not the children, was the devisee under the will, the Nebraska Supreme Court ruled Oct. 4 (In re Estate of Sheila Foxley Radford, No. S-18-863, Neb. Sup., 2019 Neb. LEXIS 145).

  • October 11, 2019

    New York Federal Judge Trims Unaddressed Claims From Wheelchair Bias Suit

    NEW YORK — A nonprofit fair housing organization’s failure to respond to arguments surrounding one of its claims in a lawsuit accusing New York officials and adult care facilities (ACFs) of discriminating against residents in wheelchairs resulted in the dismissal of those claims under the Fair Housing Act (FHA), but the remaining disability bias claims are sufficient to survive dismissal motions, a federal judge in New York ruled Sept. 30 (Fair Housing Justice Center, Inc., et al. v. Andrew M. Cuomo, et al., No. 18-3196, S.D. N.Y., 2019 U.S. Dist. LEXIS 170119).

  • October 10, 2019

    Mississippi High Court: Step-Grandfather Does Not Meet ‘Grandparent’ Criteria

    JACKSON, Miss. — A majority of the Mississippi Supreme Court on Oct. 3 reversed an award of grandparent visitation to a step-grandfather because he did not meet the statutory criteria of a “grandparent” under Mississippi Code Annotated Section 93-16-3 (Rev. 2018) (April Quen Garner v. Judi L. Garner, et al., No. 2018-CA-00962-SCT, Miss. Sup., 2019 Miss. LEXIS 357).

  • October 08, 2019

    U.S. Supreme Court Won’t Hear Either Appeal In Family’s Probate Dispute

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 7 denied two petitions for certiorari filed by family members of an estate who claim that the North Dakota Supreme Court deprived them of their property without due process (Rodney Hogen, et al. v. Steven C. Hogen, No. 19-193, and Marby Hogen, et al. v. Steven C. Hogen, No. 18-1440, U.S. Sup.).

  • October 07, 2019

    Illinois Appellate Panel: Estate Had 2 Years After Death To Sue Nursing Home

    CHICAGO — An Illinois appellate panel on Sept. 26 reinstated an estate’s survival action against the nursing home where the deceased was injured, leading to his death, finding that the case the trial court relied on misinterpreted the legislature’s intent when it created statutes addressing the statute of limitations for disabled people and incorrectly found that the estate had only one year and not two to file its lawsuit (Itadil Zayed, et al. v. Clark Manor Convalescent Center, Inc., et al., No. 1-18-1552, Ill. App., 1st Dist., 2019 Ill. App. LEXIS 788).

  • October 07, 2019

    Massachusetts High Court Hears Arguments On Wrongful Death Questions

    BOSTON — The Massachusetts Supreme Court heard oral arguments on Oct. 4 in the matter of two questions certified to it from the First Circuit U.S. Court of Appeals concerning whether a beneficiary’s wrongful death claim is derivative or independent of a decedent’s wrongful death cause of action and whether the beneficiary’s claim is subject to arbitration under an alternative dispute resolution (ADR) form the beneficiary signed when her mother was admitted into a nursing home (GGNSC Chestnut Hill LLC, et al. v. Jackalyn M. Schrader, No. SJC-12714, Mass. Sup.).

  • October 07, 2019

    Employee To High Court: No Reason To Review Age Discrimination Case

    WASHINGTON, D.C. — Cushman & Wakefield Inc. (C&W) has provided the U.S. Supreme Court with “no compelling reasons” to review the First Circuit U.S. Court of Appeals’ affirmance of a $1,275,000 jury verdict for a former employee in an age discrimination case, the former employee, Yury Rinsky, argues in a Sept. 26 brief in opposition (Cushman & Wakefield, Inc. v. Yury Rinsky, No. 19-306, U.S. Sup.).

  • October 07, 2019

    Medicare Recipients: Denied Appeal Rights Of Designation Violates Due Process Clause

    HARTFORD, Conn. — A class of Medicare recipients in a Sept. 19 post-trial brief tell a Connecticut federal court that they have been deprived of a protected property interest by state action without due process of law and that the failure of the secretary of Health and Human Services to allow them to appeal to Medicare the issue of the classification of their hospital services under Medicare rules violates the Fifth Amendment’s due process clause (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn.).

  • October 04, 2019

    6th Circuit: Man Doesn’t Owe Attorney Fees To Ex After Losing ERISA Battle

    CINCINNATI — An Ohio man who fought an Employee Retirement Income Security Act lawsuit brought by his ex-wife’s guardian after he refused to sign off on the division of certain retirement funds was not shown to have acted unreasonably or in bad faith, a Sixth Circuit U.S. Court of Appeals panel ruled Sept. 26, affirming a trial court’s denial of attorney fees requested by the guardian (Zachary B. Simonoff v. Mehdi Saghafi, et al., No. 19-3001, 6th Cir., 2019 U.S. App. LEXIS 29046).

  • October 02, 2019

    Retirees Seek High Court Review Of 8th Circuit’s Honeywell Vesting Decision

    WASHINGTON, D.C. — The U.S. Supreme Court should review the Eighth Circuit U.S. Court of Appeals’ decision in a dispute over the vesting of retirees’ health benefits because the Eighth Circuit’s decision conflicts with decisions issued by the high court in addition to decisions issued by other circuits, the retirees maintain in a Sept. 12 petition for writ of certiorari (Augustine Pacheco, et al. v. Honeywell International Inc., No. 19-341, U.S. Sup.).

  • October 02, 2019

    Kentucky Panel Reverses, Finds Grandparent Visitation Statute Constitutional

    FRANKFORT, Ky. — Finding that a lower court erred in applying case law to determine that two sections of the Kentucky Revised Statutes governing grandparent visitation are unconstitutional, a state appellate panel on Sept. 27 vacated a judgment dismissing a couple’s motion for grandparent visitation and remanded for further proceedings (Van Robison, et al. v. Justin Pinto, et al., No. 2019-CA-000435-ME, Ky. App., 2019 Ky. App. LEXIS 169).

  • October 01, 2019

    Ohio Panel Affirms Ruling For Nursing Home In Drowning Negligence Case

    TOLEDO, Ohio — An Ohio appellate panel on Sept. 27 affirmed a grant of summary judgment in favor of a nursing home in a negligence case brought by the estate of a resident who drowned in a pond on the facility’s grounds while traveling in his motorized scooter, finding that the resident had the cognitive ability to recognize the open and obvious risk (Rebecca A. Robertson v. St. Clare Commons, No. WD-18-086, Ohio App., 6th Dist.,  2019 Ohio App. LEXIS 4002).

  • September 30, 2019

    California Appellate Panel Upholds Class Denial In Retirement Benefits Dispute

    SAN JOSE, Calif. — A California city’s employee who claims that she was misclassified as a “temporary” employee for years, resulting in less preferential retirement benefits, failed to show that her case should proceed as a class action because individual issues predominate, a California appellate panel ruled Sept. 26 (Lisa Blevins v. San Jose, No. H044068, Calif. App., 6th Dist., 2019 Cal. App. Unpub. LEXIS 6489).

  • September 30, 2019

    Panel Upholds Dismissal Of Contract, Pension Claims By Older Workers

    SPRINGFIELD, Ill. — In a Sept. 17 unpublished decision, the Fourth District Illinois Appellate Court found no error in a trial court’s rejection of allegations by a group of retired municipal employees that the town of Mattoon, Ill., violated a state pension protection law when it required them to pay a higher health insurance premium than active employees (Alan Gilmore v. Mattoon, No. 4-18-0777, Ill. App., 4th Dist., 2019 Ill. App. Unpub. LEXIS 1746).

  • September 27, 2019

    Nursing Facilities’ Suit Challenging New Investigative Rules For Complaints Dismissed

    NEW YORK — A federal judge in New York on Sept. 24 dismissed for lack of subject matter jurisdiction a complaint filed by 31 skilled nursing facilities seeking pre-enforcement review of a final rule promulgated by the Centers for Medicare and Medicaid Services (CMS) that permits investigative surveys of nursing facilities initiated in response to complaints to be conducted without the participation of a registered nurse (Avon Nursing and Rehabilitation, et al. v. Alex M. Azar II, No. 18-CV-2390, S.D. N.Y., 2019 U.S. Dist. LEXIS 163420).