Mealey's Elder Law

  • June 24, 2022

    Cert Petition Filed Over Invalidation Of Nursing Home Arbitration Agreement

    WASHINGTON, D.C. — Due to a “Multi-Faceted Split” in federal and state courts regarding the standards for applying provisions of the Federal Arbitration Act (FAA) when the forum for arbitration is unavailable, U.S. Supreme Court review is warranted, a West Virginia nursing home asserts in its June 13 petition for a writ of certiorari.

  • June 24, 2022

    In 2nd Appeal, 11th Circuit Affirms, Says Medicare Beneficiary Lacks Standing

    ATLANTA — The 11th Circuit U.S. Court of Appeals on June 21 affirmed a district court’s ruling dismissing a Medicare beneficiary’s case for lack of standing in his suit seeking judicial review by the secretary of Health and Human Services (HHS) of an administrative law judge’s denial of coverage for a cancer therapy, finding that the Medicare beneficiary lacked standing under Article III of the U.S. Constitution for failure to provide facts showing injury to himself.

  • June 21, 2022

    Split High Court Reverses 6th Circuit, Finds No MSPA Violation In Dialysis Rates Case

    WASHINGTON, D.C. — Reversing and remanding a Sixth Circuit U.S. Court of Appeals decision, a split U.S. Supreme Court on June 21 ruled that “a group health plan that provides limited benefits for outpatient dialysis — but does so uniformly for all plan participants” does not violate the Medicare Secondary Payer Act (MSPA), with a partial dissent by two justices based on outpatient dialysis being “an almost perfect proxy for end stage renal disease.”

  • June 21, 2022

    Relator Appeals Dismissal Of False Claims Complaint Against No-Fault Insurers

    ATLANTA — The widow of an injured man on May 31 filed a corrected brief with the 11th Circuit U.S. Court of Appeals, seeking reversal of a judgment that dismissed the couple’s False Claims Act (FCA) suit against insurers alleging that they caused the man’s health care providers to present false claims to the Centers for Medicare and Medicaid Services (CMS) and that by hiding purported responsibility as primary payers, the insurers forced the couple to reimburse CMS for post-settlement medical care.

  • June 17, 2022

    7th Circuit Says COVID Death Suit Remand Proper, Advisory Opinions Not Binding

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on June 15 affirmed a district court’s remand of a suit filed against a nursing home by the estate administrator of a former resident who died there from COVID-19, finding that the “suit was properly remanded” because the “principal disputes requiring adjudication in this suit are likely to be issues such as whether the nursing home allowed members of the staff to work while ill” and “have nothing to do with any federal statute.”

  • June 17, 2022

    Michigan Panel: New Claims Are ‘Re-Hash’ Of Facts In Undue Influence Trust Suit

    DETROIT — A Michigan appellate court on June 9 affirmed a trial court’s order denying two siblings’ motion to file a second amended petition and dismissing their first petition in a suit alleging that their brother exercised undue influence over their mother’s distribution of property and money from two subtrusts, finding that the second amended petition’s proposed undue influence claim was barred by the trial court’s ruling dismissing that claim in the first amended petition.

  • June 17, 2022

    N.Y. Justice Only Dismisses 1 Claim In COVID Death Suit Against Care Home

    HUDSON, N.Y. — A New York state justice on June 8 denied a nursing home’s motion to dismiss all claims, only dismissing a negligence per se claim in a suit by the executor of a decedent’s estate following the decedent’s COVID-19-related death at the facility, finding that the nursing home was not immune from COVID-19-related liability pursuant to federal or state laws.

  • June 16, 2022

    2nd Circuit Won’t Rehear Case Over Pension Plan Reinterpretation Of ‘Retires’

    NEW YORK — The Second Circuit U.S. Court of Appeals on June 2 denied a petition by participants in a defined-benefit multiemployer pension plan for panel rehearing or rehearing en banc of a dispute over reinterpretation of “retires.”

  • June 14, 2022

    New Jersey Panel Affirms, Says Challenges To Aid In Dying Act ‘Are Meritless’

    TRENTON, N.J. — A New Jersey appellate court on June 10 affirmed a trial court order dismissing a suit filed by a terminally ill New Jersey resident, a physician and a pharmacist seeking to invalidate and enjoin the New Jersey Medical Aid in Dying for the Terminally Ill Act, finding that the “plaintiffs lack standing and their constitutional and other challenges are meritless.”

  • June 13, 2022

    Georgia Jury Awards $4.25M Against Nursing Home, Doctors In Wrongful Death Suit

    HINESVILLE, Ga. — A Georgia state court judge on May 26 entered a $1.7 million judgment against two physicians three days after a Georgia jury issued a unanimous $4.25 million verdict against a nursing home and the two physicians who treated a former nursing home resident who died after becoming septic.

  • June 10, 2022

    Residents Appeal Dismissal Of RICO Suit Against Care Homes To 11th Circuit

    TAMPA, Fla. — A putative class of nursing home residents on June 8 appealed to the 11th Circuit U.S. Court of Appeals a district court’s May 9 order adopting a magistrate judge’s report and dismissing a suit alleging that skilled nursing facilities improperly obtained their licenses and were sold without valid licenses, agreeing with the magistrate judge that the plaintiffs lacked standing and did not allege an “injury-in-fact.”

  • June 09, 2022

    Louisiana Panel: Care Home Didn’t Show Malpractice As Basis For Negligence Claim

    LAKE CHARLES, La. — A divided Louisiana appellate court on May 11 reversed and remanded a trial court judgment sustaining a nursing home’s exception on prematurity grounds, finding that the nursing home did not show that the negligence alleged by the children of a deceased former nursing home resident who died after sustaining burns while smoking in bed “sounded in medical malpractice” under the Louisiana Medical Malpractice Act (MMA).

  • June 09, 2022

    Federal Judge Says RN Staff Requirements Of LTC Policy Not Met By Nursing Home

    COVINGTON, Ky. — A Kentucky federal judge on May 27 denied a motion for summary judgment filed by a resident of a nursing home’s personal care unit but granted summary judgment to a long-term care (LTC) insurer and dismissed a suit filed by the resident against the insurer alleging improper denial of her LTC benefits, finding that the nursing home’s personal care unit failed to meet the definition of a LTC facility under the policy because it does not provide 24-hour nursing care by a registered nurse.

  • June 09, 2022

    California Judge Says Care Home Can’t Refuse To Accept Resident Back From Hospital

    SACRAMENTO, Calif. — A California state court judge on April 12 granted summary judgment to the California Long-Term Care Ombudsman Association (CLTCOA) against a nursing home in a suit filed by a now-deceased former resident and CLTCOA alleging that the home illegally “dumped” her into a hospital and refused to readmit her upon discharge, finding that “CLTCOA has established with undisputed material facts its associational standing to allege its declaratory relief cause of action.”

  • June 09, 2022

    Class Complaint Accuses New York Veterans’ Home Of Negligence For COVID Deaths

    CENTRAL ISLIP, N.Y. — A Long Island veterans home was negligent in failing to protect its residents against the spread of COVID-19, proposed administrators and executors of the estates of deceased former residents allege in a class complaint filed May 20 in New York federal court.

  • June 08, 2022

    Preliminary Injunction Motion Withdrawn In Fraudulent Transfer Suit Against Insurer

    WILMINGTON, Del. — Citing changes in the defendants’ plans, the plaintiffs in a putative class suit alleging fraudulent transfers from an insurance subsidiary that more than 1 million policyholders depend on for long-term care (LTC) insurance disability benefits informed the Delaware Chancery Court in a June 3 letter that they are withdrawing their motion for a preliminary injunction.

  • June 07, 2022

    6th Circuit Upholds Age Bias Ruling For Employer Due To No Showing Of Pretext

    CINCINNATI — A former Volvo supervisor who alleged that he was fired due to his age failed to show that the reason given for his termination — yelling profanities at a subordinate — was pretext for age discrimination, a Sixth Circuit U.S. Court of Appeals panel ruled June 3.

  • June 06, 2022

    Nebraska High Court Vacates Dismissal Of Grandparent Visitation Petition

    LINCOLN, Neb. — The Nebraska Supreme Court on May 27 vacated and remanded a district court’s dismissal of a maternal grandmother’s petition for grandparent visitation, finding that “[t]he district court erred in concluding that it lacked subject matter jurisdiction” because that conclusion is not supported by Nebraska statutes.

  • June 06, 2022

    11th Circuit Vacates Dismissal Of Accountant’s Age Bias Complaint

    ATLANTA — A trial court erred when it relied on an email exchange provided by the employer to dismiss an accountant’s age bias complaint for failure to file a timely charge with the Equal Employment Opportunity Commission without ever giving the accountant a chance to respond, an 11th Circuit U.S. Court of Appeals panel ruled in an unpublished per curiam opinion on June 3, vacating the order of dismissal.

  • June 06, 2022

    Allstate Argues Waiver In Opposing Review Of Life Insurance Termination Ruling

    WASHINGTON, D.C. — Arguing that petitioners “present issues they waived below or seek this Court’s review of a factbound summary judgment determination on which two lower courts have agreed,” respondent Allstate Insurance Co. on June 1 urged the U.S. Supreme Court not to review a decision in which retirees’ Employee Retirement Income Security Act challenge to termination of a life insurance benefit was denied.