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Mealey's Elder Law

  • August 15, 2019

    Panel:  Life-Estate Interests Not Available To Elderly Woman For Medical Benefit Eligibility

    MINNEAPOLIS — The Minnesota Court of Appeals on Aug. 12 affirmed a lower court’s ruling that the value of non-homestead life-estate interests held by an elderly woman’s community spouse is not considered available to the woman for purposes of her application for eligibility to medical-assistance long-term care (MA-LTC) benefits (In re the matter of Esther Schmalz and the Commissioner of Minnesota Department of Human Services, Renville County Human Services, No. A18-2156, Minn. App., 2019 Minn. App. LEXIS 274).

  • August 14, 2019

    Judge Denies U.S. Health Secretary’s Motions To Exclude Evidence In Medicare Dispute

    HARTFORD, Conn. — In a July 29 order, a federal judge in Connecticut denied the majority of motions filed by the secretary of Health and Human Services in limine to exclude certain evidence and testimony in a dispute with a class of Medicare recipients over claims that the class suffered financial injuries as a result of being designated for observation status rather than inpatient status (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn.).

  • August 14, 2019

    4th Circuit Vacates Forum-Selection Clause Ruling In Nursing Care Class Suit

    RICHMOND, Va. — A district court erred when it failed to follow an appellate panel’s instructions to treat the enforceability of a forum-selection clause at issue in a class suit accusing a nursing home of mistreatment as an affirmative defense to removal, a Fourth Circuit U.S. Court of Appeals panel ruled Aug. 12 in an unpublished opinion (Joseph J. Pfohl, et al. v. Saber Healthcare Group, LLC, et al., No. 18-2335, 4th Cir., 2019 U.S. App. LEXIS 23952).

  • August 8, 2019

    Nursing Home Advocacy Group Asks Panel To Clarify Directions For Lower Court

    SAN FRANCISCO — A nonprofit entity advocating for the rights of nursing home patients on Aug. 5 petitioned a California appeals panel for a rehearing to clarify that the case is to be remanded for entry of a modified judgment, directing the issuance of a writ of mandate, requiring nursing homes using California Health and Safety Code Section 1418.8 to adopt and adhere to, and the state Department of Public Health to enforce, additional procedures specified and to enter any further orders necessary and consistent with the panel’s ruling (California Advocates for Nursing Home Reform, et al. v. Karen Smith, et al., No. A147987, Calif. App., 1st Dist., Div. 4).

  • August 8, 2019

    2nd Circuit: Honeywell Must Continue Providing Retiree Medical Benefits

    NEW YORK — A Second Circuit U.S. Court of Appeals panel on Aug. 7 affirmed a trial court’s order finding that Honeywell plant workers who retired before an effects bargaining agreement (EBA) expired are entitled to vested lifetime medical benefits pursuant to unambiguous language in the collective bargaining agreement (CBA) and affirmed an order preliminarily enjoining termination of benefits for those who retired after the EBA expiration, finding that there were “sufficiently serious questions going to the merits” and that the retirees would be irreparably harmed with the injunction (David Kelly, et al. v. Honeywell International, Inc., Nos. 17-675, 17-2075, 2nd Cir., 2019 U.S. App. LEXIS 23561).

  • August 7, 2019

    Kansas High Court Tolls Statute Of Limitations For Will Found Out-Of-Time

    TOPEKA, Kan. — A will maintained by a Kansas district court but not found until after the statute of limitations expired for petitioning a will for probate should be admitted to probate, the Kansas Supreme Court ruled Aug. 2, cautioning that its holding is limited to the present case and is not a modification of In re Estate of Strader (In the Matter of the Estate of Ray v. Oroke, No. 116,333, Kan. Sup., 2019 Kan. LEXIS 200).

  • August 7, 2019

    Panel: Deceased Had No Transactional Capacity To Change IRA Beneficiary

    SEATTLE — Substantial evidence supports that a man had no transactional capacity six days before his death to change his individual retirement account beneficiary to his wife, whom he was divorcing, a Washington appeals panel held Aug. 5, finding that the change was null and void (In the matter of the estate of Curtis E. Carlson, Deceased, David Wands, D.D.S. v. Dona Seely, D.D.S., No. 77881-1-I, Wash. App., Div. 1, 2019 Wash. App. LEXIS 2033).

  • August 6, 2019

    6th Circuit:  Estate Does Not Have To Arbitrate Claims Against Nursing Home

    CINCINNATI — Finding that arbitration rests on consent and that there was no consent to arbitration by a deceased nursing home resident, the Sixth Circuit U.S. Court of Appeals on Aug. 2 affirmed that the deceased’s estate does not have to arbitrate negligence and wrongful death claims against a nursing home and its various entities (GGNSC Louisville Hillcreek LLC, et al. v. Estate of Robert C. Bramer, et al., No. 18-6059, 6th Cir., 2019 U.S. App. LEXIS 23160).

  • August 2, 2019

    New York Panel Affirms Validity Of State’s Nursing Home Quality Pool

    ALBANY, N.Y. — A New York appellate panel on Aug. 1 found that a regulation governing a state program that reduces Medicaid funds provided to nursing homes in the state and redistributes them to facilities that meet certain quality criteria is valid, rejecting a challenge by nursing homes that participate in the state Medicaid program (In re Dry Harbor Nursing Home, et al. v. Howard Zucker, as Commissioner of Health, et al., No. 527328, N.Y. Sup., App. Div., 3rd Dept., 2019 N.Y. App. Div. LEXIS 6049).

  • August 2, 2019

    North Dakota High Court: Error Over Ruling On Real Property Ownership

    BISMARCK, N.D. — A husband may claim an elective share of an intestate estate under North Dakota Century Code Section 30.1-05-01, the North Dakota Supreme Court ruled July 18; however, a lower court erred in determining ownership of real property between the husband and an unrelated child of the decedent (In the matter of the estate of Kandi Ann Hall; Tyson Hall v. Brianna McLaen, et al., No. 20190009, N.D. Sup., 2019 N.D. LEXIS 200).

  • August 2, 2019

    8th Circuit:  Accountant Failed To Show Age, Gender Caused Promotion Denials

    ST. PAUL, Minn. — An accountant who was promoted several times by her employer before being demoted and then laid off as part of reorganizations failed to show unsuccessful applications for higher posts and her eventual rehire in a lower ranking position were caused by age or gender bias, an Eighth Circuit U.S. Court of Appeals panel ruled July 30 (Nancy Heisler v. Nationwide Mutual Insurance Company, No. 18-1588, 8th Cir., 2019 U.S. App. LEXIS 22573).

  • August 2, 2019

    Panel:  No Error In Confirming Arbitration Award In Family Dispute Over Property

    HOUSTON — A trial court did not err in compelling arbitration between a wife and step-son, who held a durable power of attorney for the husband, based on an arbitration clause in a premarital agreement, a Texas appeals panel affirmed July 30, also upholding the trial court’s confirmation of an arbitration award in favor of the step-son (Mahasin A. Hawdi v. Atheel Mutammara, agent and attorney-in-fact for William B. Mutammara, No. 01-18-00024-CV, Texas App., 1st Dist., 2019 Tex. App. LEXIS 6486).

  • August 1, 2019

    Nursing Home Residents Can Contest Statute Violation Over Discharge Appeal, Panel Says

    SAN FRANCISCO — Three nursing home residents may challenge the state of California’s violation of a statutory requirement for hearing appeals on transfers and discharges of residents, the Ninth Circuit U.S. Court of Appeals held July 18, finding that a lower court erred in dismissing their lawsuit on the basis that the Federal Nursing Home Reform Amendments (FNHRA), which imposed requirements for nursing homes to be reimbursed under the Medicare and Medicaid Acts, do not provide a statutory right enforceable under U.S. Code Section 1983 (Bruce Anderson, et al. v. Mark Ghaly, No. 16-16193, 9th Cir., 2019 U.S. App. LEXIS 21265).

  • August 1, 2019

    U.S. Health Secretary, Class Of Medicare Beneficiaries Provide Joint Brief Before Trial

    HARTFORD, Conn. — In a joint trial brief, the secretary of Health and Human Services and a class of Medicare beneficiaries on July 12 listed their expert witnesses and told a Connecticut federal judge that they expect the trial to last 10 to 13 days in their dispute over claims that the class suffered financial injuries as a result of being designated for observation status rather than inpatient status (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn.).

  • July 30, 2019

    Kentucky Appeals Panel Finds POA Granted Authority To Enter Arbitration Agreement

    STANTON, Ky. — A woman’s executed power of attorney (POA) gave the individual she appointed as attorney-in-fact the authority to enter into an arbitration agreement with the nursing home where the woman would reside until her death, the Kentucky Court of Appeals ruled July 26, finding that all claims related to her care except one for wrongful death are subject to arbitration (Kindred Nursing Centers  Limited Partnership, et al. v. Terrell Powell, et al., No. 2013-CA-000885-MR, Ky. App., 2019 Ky. App. Unpub. LEXIS 536).

  • July 29, 2019

    9th Circuit Affirms No Arbitration Of Suit Over Senior Living Staffing Levels

    SAN FRANCISCO — Aegis Senior Communities LLC, a company operating senior living communities that has been accused of defrauding residents by misrepresenting staffing levels, waived its right to arbitration of a class complaint after withdrawing its motion, engaging in discovery and attempting to dismiss the claims on their merits, a Ninth Circuit U.S. Court of Appeals panel ruled July 24, affirming a trial court’s decision (June Newirth, et al. v. Aegis Senior Communities, LLC, No. 17-17227, 9th Cir., 2019 U.S. App. LEXIS 22060).

  • July 26, 2019

    Kentucky Panel: Senior Care Center Not Entitled To Arbitration In Negligence Case

    FRANKFORT, Ky. — A Kentucky appellate court on July 12 affirmed a lower court’s denial of a senior care center’s motion to compel for arbitration and to dismiss or stay a complaint involving the care of a former resident, saying an attorney-in-fact did not have the authority to enter into an arbitration agreement (Golden Gate Nat’l Senior Care, LLC, et al. v. David Dolan, No. 2017-CA-001357-MR, Ky. App., 2019 Ky. App. LEXIS 119).

  • July 25, 2019

    Nursing Homes Must Adopt Procedures For Decisions Without Person With Legal Authority

    SAN FRANCISCO — Noting merit to a lower court’s conclusion that California Health and Safety Code Section 1418.8, which allows nursing facilities to make decisions for incapacitated nursing residents without someone with legal authority, is constitutionally deficient, a state appeals panel on July 22 agreed with the director of the state Department of Public Health that “the proper course is to construe the statute to uphold its constitutionality rather than enjoin its enforcement and use” and, thus, reversed and remanded for entry of a modified judgment requiring nursing homes utilizing Section 1418.8 to adopt additional procedures necessary to preserve that statute’s constitutionality (California Advocates for Nursing Home Reform, et al. v. Karen Smith, et al., No. A147987, Calif. App., 1st Dist., Div. 4, 2019 Cal. App. LEXIS 658).

  • July 25, 2019

    8th Circuit:  Son Not Required To Arbitrate Wrongful Death Claim

    ST. LOUIS — Citing undisputed evidence that a son was neither legal guardian nor attorney-in-fact for his late father at the time of his admission to a residential rehabilitation center, the Eighth Circuit U.S. Court of Appeals on July 23 reversed an Arkansas federal judge’s ruling compelling arbitration in an ensuing wrongful death action (Northport Health Services, et al. v. Mark Posey, No. 18-2459, 8th Cir., 2019 U.S. App. LEXIS 21941).

  • July 24, 2019

    Facility Found Liable For Full Amount Of Damages For Medical Negligence Claim

    TALLAHASSEE, Fla. — A Florida appeals panel on July 15 held that an allegation of medical negligence subject to the statutory requirements of Florida Statutes Chapter 766 cannot form the basis of a claim under Florida Statutes Section 415.1111 and that a long-term acute-care facility is liable for the full amount of damages to a patient on the medical negligence claim (Specialty Hospital-Gainesville Inc. v. Charles Barth, No. 1D18-511, Fla. App., 1st Dist., 2019 Fla. App. LEXIS 11166).