Mealey's Elder Law

  • September 17, 2020

    Trial Court Didn't Address Validity Of Arbitration Agreement, Arkansas Panel Says

    LITTLE ROCK, Ark. — An Arkansas appellate panel on Sept. 16 reversed a ruling denying a motion to compel arbitration of a nursing home negligence case, finding that the trial court erred in denying the motion without expressly ruling on "the threshold issues of whether there was a valid agreement to arbitrate and, if so, whether the dispute fell within the scope of that agreement" (JS Arkansas Five Healthcare, LLC, et al. v. Amy Gilbreath, No. CV-18-995, Ark. App., Div. 2, 2020 Ark. App. LEXIS 449).

  • September 17, 2020

    Tennessee Panel Orders Nursing Home To Pay Costs Of Arbitration In Liability Action

    JACKSON, Tenn. — Although agreeing with a trial court that a fee-splitting provision in an arbitration agreement between a nursing home and a former resident is unconscionable, a Tennessee Court of Appeals panel on Sept. 15 reversed the lower court's decision to deny the facility's motion to compel arbitration and ordered the trial court on remand to compel arbitration at the facility's expense (Tkach Stokes v. Allenbrooke Nursing and Rehabilitation Center LLC, No. W2019-01983-COA-R3-CV, Tenn. App., 2020 Tenn. App. LEXIS 411).

  • September 17, 2020

    Georgia High Court Hears Arguments On Jury Selection In Nursing Home Death Case

    ATLANTA — The Georgia Supreme Court heard oral arguments on Sept. 15 in an appeal by a Georgia nursing home challenging an appellate panel's affirmance of alleged race-based decisions related to the makeup of the jury and the resulting wrongful death verdict against it (Lowndes County Health Services, LLC v. Gregory Copeland, et al., Nos. S20C0425/S20G0425, Ga. Sup.).

  • September 15, 2020

    Class Certified, Individual Relief Granted In Same-Sex Survivor Benefits Suit

    SEATTLE — A federal judge in Washington on Sept. 11 adopted a magistrate judge's report and recommendation granting a claim for individual relief by a woman seeking Social Security survivor benefits based on the work history of her partner who died before same-sex marriage was legalized and certifying a class of similarly situated individuals and ordered the parties to show cause regarding the appropriate relief for the class (Helen Josephine Thornton, et al. v. Commissioner of Social Security, No. 18-1409, W.D. Wash., 2020 U.S. Dist. LEXIS 166805).

  • September 13, 2020

    Woman Says PREP Act Does Not Preempt Suit Over Mother's COVID-19 Death

    COLUMBIA, S.C. — A woman claiming that a short-term rehabilitation center and its CEO were negligent for failing to implement safety protocols instituted in the wake of the novel coronavirus pandemic and that those failures contributed to her mother's April 13 death from COVID-19 says in a reply brief filed Sept. 2 in federal court in South Carolina that her lawsuit should be remanded to state court because her claims are not completely preempted by the Public Readiness and Emergency Preparedness (PREP) Act (Tress Wright v. Encompass Health Rehabilitation Hospital of Columbia Inc., et al., No. 20- 2636, D. S.C.).

  • September 13, 2020

    Split 6th Circuit Affirms: Time Limit, Not Dollar Limit, Applies To Benefit

    CINCINNATI — The Sixth Circuit U.S. Court of Appeals in an Aug. 27 split decision affirmed a lower court's dismissal of a lawsuit that argued that an insurer should apply a long-term care insurance policy's maximum dollar limit, and not a six-year limit, to an "alternative" benefit that resulted from an earlier class action settlement (Kathleen O'Keefe v. Continental Casualty Co., No. 20-3014, 6th Cir., 2020 U.S. App. LEXIS 27561).

  • September 13, 2020

    North Dakota High Court: Partial Invalidity Applicable Remedy In Probate Case

    BISMARCK, N.D. — The North Dakota Supreme Court in an Aug. 31 divided opinion found that the equitable doctrine of partial invalidity is an applicable remedy under state law, affirming a lower court's decision invalidating portions of a will relating to the distribution of shares in a ranch that it found were the product of undue influence and treating the perpetrators of the undue influence as if they had not survived the decedent (In re Estate of Leo Grenz [Kelly Grenz v. Donavin Grenz, et al.], No. 20190363, N.D. Sup., 2020 N.D. LEXIS 190).

  • September 11, 2020

    CMS Requires COVID-19 Testing For All Long-Term Facility Staff, Residents

    BALTIMORE — The Centers for Medicare & Medicaid Services (CMS) on Aug. 25 issued an interim final rule requiring long-term care facilities to test all staff, residents and volunteers for COVID-19 based on the degree of spread in the community.

  • September 11, 2020

    Judge: No Federal Jurisdiction Shown In COVID-19 Death Suit Against Nursing Home

    LOS ANGELES — The removal of a COVID-19 wrongful death and negligence suit by the defendant nursing home, its owner and a doctor pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) fails as no claims were brought under that act, a federal judge in California ruled Sept. 10, adding that removal was also not justified by federal officer jurisdiction and that there was no showing of an "imbedded question of federal law" (Emma Martin, et al. v. Serrano Post Acute LLC, et al., No. 20-5937, C.D. Calif.).

  • September 11, 2020

    Estate Of Resident Who Died Of COVID-19 Files Class Suit Against N.J. Facilities

    NEWTON, N.J. — The estate of a resident of a New Jersey long-term care facility on Sept. 8 filed a class action complaint in state court against the facility, its sister facility and their owners and operators, claiming that they violated state and federal nursing home laws and the state Consumer Fraud Act and failed to protect residents from the novel coronavirus, which has cost at least 94 residents their lives (Estate of Albert C. Roberts v. Andover Subacute Rehabilitation Center I, et al., No. SSX-L-358-20, N.J. Super., Sussex Co.).

  • September 11, 2020

    Dual Status Technician Denied Retirement Benefits Exception In Light Of Babcock

    LOUISVILLE, Ky. — A federal magistrate judge in Kentucky on Sept. 9 ruled that a recent Sixth Circuit U.S. Court of Appeals decision upholding the application of the "Windfall Elimination Provision" (WEP) to dual status technicians is binding and affirmed the Social Security commissioner's reduction of benefits for a retired technician who had unsuccessfully argued that he was eligible for WEP's uniformed services exception (Mark Ferris v. Commissioner of Social Security, No. 18-769, W.D. Ky., 2020 U.S. Dist. LEXIS 164041).

  • September 08, 2020

    Arbitration Is 'Exclusive Remedy' For Claims Against Indiana Nursing Home

    INDIANAPOLIS — An Indiana appeals court on Sept. 2 ruled that a trial court erred when it denied an estate's motion to compel arbitration in a medical malpractice case against a nursing home, finding that the language of the arbitration agreement "provided the exclusive remedy for resolution" of the claims and negated any protections the health care provider had under the Indiana Medical Malpractice Act (Estate of Sandra King v. Aperion Care and Steve Robertson, Insurance Commissioner for the Indiana Department of Insurance, No. 19A-MI-3037, Ind. App., 2020 Ind. App. LEXIS 377).

  • September 08, 2020

    Nursing Home Residents' Suit Over Denials Of Long-Term Care Benefits Dismissed

    CHICAGO — A federal judge in Illinois on Sept. 3 dismissed without prejudice a lawsuit initially filed by 13 nursing home residents who claim that the director of the Illinois Department of Healthcare and Family Services (HFS) and the secretary of the Illinois Department of Human Services (DHS) violated their rights to due process and the Federal Medicaid Act by routinely denying applications for long-term care in an effort to avoid paying nursing homes for the services, holding that the plaintiffs lacked standing because they did allege an injury-in-fact (Charles Donovan, et al. v. Theresa Eagleson, et al., No. 19-6020, N.D. Ill., 2020 U.S. Dist. LEXIS 161381).

  • September 08, 2020

    Texas First Responders Petition U.S. Supreme Court Over Pension Withdrawal Law

    WASHINGTON, D.C. — A group of retired Texas police and firefighters on Aug. 17 filed a petition for a writ of certiorari in the U.S. Supreme Court, asking whether a federal appellate court erred in ruling that a state law prohibiting the first responders from withdrawing their pension funds as a lump sum did not violate the takings clause of the Fifth Amendment to the U.S. Constitution (LaDonna Degan, et al. v. The Board of the Dallas Police and Fire Pension System, No. 20-203, U.S. Sup., 2020 U.S. S. CT. BRIEFS LEXIS 2496).

  • September 03, 2020

    Putative Class: Insurer Violated Long-Term Insurance Policy By Increasing Premiums

    CHICAGO — An insured on Aug. 31 filed a class action complaint against an insurer in a federal court in Illinois, alleging that the insurer breached its long-term care insurance policies by increasing premiums without increasing the premiums for all of its other insureds who were in the same premium class, further contending that the insurer's "brochure, outline of coverage, and policy further create an enforceable expectation that future increases in premiums and purchases of additional coverage would not take place if the automatic benefit increase option for inflation protection is purchased" (David Sieving, et al. v. Continental Casualty Company, No. 20-05127, N.D. Ill.).

  • September 03, 2020

    Class Complaint Alleging Understaffing In Nursing Homes Remanded To Arkansas Court

    LITTLE ROCK, Ark. — A class complaint alleging that 14 nursing homes were insufficiently staffed does not meet the minimum diversity requirements of the Class Action Fairness Act (CAFA) and involves no federal causes of action, a federal judge in Arkansas found Aug. 28, granting the plaintiffs' motion to remand the suit to state court (Katherine Jones Mitchell, et al. v. Reliance Healthcare Inc., et al., No. 19-370, E.D. Ark., 2020 U.S. Dist. LEXIS 156478).

  • September 01, 2020

    Distributor, Amici Tell U.S. High Court Arbitrators Must Decide Arbitrability

    WASHINGTON, D.C. — Three amicus curiae briefs filed Aug. 28 in the U.S. Supreme Court support a dental equipment distributor's arguments in its Aug. 21 petitioner brief that certain carveouts in arbitration agreements don't negate delegation agreements (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).

  • September 01, 2020

    Summary Judgment For Employer In Age Bias Suit For Employee Of 41 Years Reversed

    CINCINNATI — A Sixth Circuit U.S. Court of Appeals panel on Aug. 26 reversed a trial court's summary judgment ruling for an employer accused of firing an employee after more than four decades due to his age, finding that the employer provided evidence only that it might have fired the employee in the absence of discriminatory animus and failed to show as a matter of law that it would have (Kenneth James Lowe v. Walbro LLC, No. 19-2386, 6th Cir., 2020 U.S. App. LEXIS 27221).

  • August 27, 2020

    Citing Fact Issues, Nebraska Appeals Panel Undoes Judgment For Nursing Facility

    PAPPILION, Neb. — The Nebraska Court of Appeals on Aug. 18 said fact issues over the standard of care and causation of injury in a medical malpractice suit filed by a former resident of a nursing facility should have prevented a trial court from granting summary judgment to the nursing facility (Betty Lou Lauer v. Golden Living Center – Hartington, No. A-19-181, Neb. App., 28 Neb. App. 729).

  • August 27, 2020

    Michigan Panel: 'Handbooks' Were Not Contracts For Fixed Retirement Benefits

    DETROIT — A Michigan appellate panel on Aug. 13 reversed a trial court's denial of summary disposition and ruled that a group of non-union retirees from a Flint-area hospital could not rely on employee handbooks in arguing that their former employer breached a contract when it altered their retirement health plans (Dean Frick v. Hurley Medical Center, No. 346747, Mary Bland, et al., v. Board Of Hospital Managers Of Hurley Medical Center, No. 347533, Mich. App., 2020 Mich. App. LEXIS 5267).