Mealey's Elder Law

  • July 14, 2020

    California Panel Affirms Fee Award In Sibling Feud Over Mother’s Care And Money

    SAN FRANCISCO — A quartet of siblings who objected to their brother’s petition for reimbursement for attorney fees racked up in the course of a legal battle over the establishment of a conservatorship for their mother failed to show that their brother spent unreasonably and that a probate court erred in granting that petition, a California appellate panel ruled in an unpublished June 25 opinion (Robert Dubro, et al. v. Dennis Dubro, et al., No. A157185, Calif. App., 4th Dist., Div. 2, 2020 Cal. App. Unpub. LEXIS 4005).

  • July 14, 2020

    Florida Panel Quashes Order That Allowed Discovery Into Nursing Home Financials

    MIAMI — A Florida appellate panel on July 1 quashed a trial court’s order compelling discovery into a Miami-area nursing home’s financial records in a dispute over a resident’s death, ruling that the trial court failed to address the nursing home’s objection, failed to hold hearings on the potential relevance of the documents and improperly assumed that the documents were public record (Fair Havens Center LLC, et al. v. Estate of Dumitru Nicula, No. 3D20-205, Fla. App., 3rd Dist., 2020 Fla. App. LEXIS 9403).

  • July 14, 2020

    Management Company, 27 Nursing Facilities To Pay $16.7M For False Billing Scheme

    WASHINGTON, D.C. — The U.S. Department of Justice announced July 13 that a management company and 27 skilled nursing facilities in California have agreed to pay $16.7 million to partially resolve allegations in two lawsuits brought under the qui tam provisions of the False Claims Act (FCA) that accuse them of submitting claims to Medicare for “ultra high” rehabilitation services for patients that were not medically necessary.

  • July 13, 2020

    Florida Rehab Facility To High Court: Loss Of License Violated Due Process

    WASHINGTON, D.C. — A Florida rehabilitation facility where eight residents died in the wake of Hurricane Irma has asked the U.S. Supreme Court in a June 18 petition for writ of certiorari to consider whether the state’s subsequent revocation of facility’s license violated the due process clause (Rehabilitation Center at Hollywood Hills LLC v. State of Florida, Agency for Health Care Administration, No. 19-1400, U.S. Sup.).

  • July 13, 2020

    Wisconsin Panel Affirms Guardianship, Protective Orders For Dementia Patient

    WAUSAU, Wis. — The Third District Wisconsin Court of Appeals on July 7 affirmed orders for personal and estate guardianship, as well as protective placement, for an 87-year-old man who suffers from dementia, ruling that a lower court made no error in determining that his ability to evaluate information on his own health and property was impaired and that he posed a risk to himself (J.W. v. R.B., No. 2019AP197, Wis. App., Dist. 3, 2020 Wisc. App. LEXIS 306).

  • July 13, 2020

    Hospice Provider To Pay $3.2M For Billing Insurers For Unqualified Patients

    FORT MYERS, Fla. — A Florida-based hospice care provider on July 9 entered into an agreement in federal court in Florida in which it agreed to pay $3.2 million to resolve allegations asserted in a suit brought under the qui tam provisions of the False Claims Act (FCA) that accused it of billing insurers for hospice services provided to patients who did not qualify for them and that were medically unnecessary from July 1, 2012, to June 30, 2016 (U.S. ex rel. Margaret Peters v. Hope Hospice and Community Services LLC, et al., No. 16-cv-6- FtM-99MRM, M.D. Fla.).

  • July 09, 2020

    7th Circuit Denies Age Bias Claims Based On Non-Promotion, Hostile Environment

    CHICAGO — A Seventh Circuit U.S. Court of Appeals panel on July 1 affirmed a trial court’s summary judgment ruling for Chicago on Age Discrimination in Employment Act (ADEA) claims by a worker based on non-promotion and a hostile work environment (Romuald Tyburski v. City of Chicago, No. 18-3000, 7th Cir., 2020 U.S. App. LEXIS 20540).

  • July 09, 2020

    3rd Circuit: Simultaneous SSDI And Age, Disability Bias Claims Can’t Coexist

    PHILADELPHIA — A temporary worker who represented in an application for Social Security disability insurance (SSDI) benefits that he was unable to work during a time when he was still working a temporary job can’t at the same time claim age and disability discrimination for not being hired as a permanent employee, a Third Circuit U.S. Court of Appeals panel ruled June 10 in a per curiam opinion (Hans C. Ehnert v. Washington Penn Plastic Co., Inc., et al., No. 18-364, 3rd Cir., 2020 U.S. App. LEXIS 18225).

  • July 06, 2020

    Woman Dismisses Claims Over State’s Response To COVID-19 In Nursing Homes

    PHILADELPHIA — A lead plaintiff in a class action accusing the Pennsylvania Department of Health and its secretary of not taking proper precautions for nursing home staff and residents in response to the COVID-19 pandemic voluntarily dismissed her claims on June 30, just days after the department opposed a motion for a preliminary injunction on the ground that the plaintiffs’ proposed plan is an attempt to usurp its authority and alter its currently effective plan (Jodi Gill, et al. v. Pennsylvania Department of Health, et al., No. 20-cv-2038, E.D. Pa.).

  • July 02, 2020

    Nursing Home Removes COVID-19 Suit, Cites PREP Act, Federal Officer Statute

    LOS ANGELES — A Hollywood nursing home and its owner on July 1 removed a negligence and wrongful death complaint filed by the family of a resident who died of COVID-19 to federal court, arguing that the court has jurisdiction because they were acting under the direction of a federal officer and that the claims are preempted by the Public Readiness and Emergency Preparedness Act (PREP Act) (Emma Martin, et al. v. Serrano Post Acute LLC d/b/a Hollywood Premier Healthcare Center, et al., No. 20-cv-5937, C.D. Calif.).

  • July 02, 2020

    Indiana Panel Affirms Judgment Nixing Will For Undue Influence, Interference

    INDIANAPOLIS — In affirming a lower court’s judgment invalidating a will, the Indiana Court of Appeals on June 16 found no clear error in the lower court’s finding that a man who remarried a few months after his wife’s death and a few months before he died lacked mental capacity and was subject to undue influence when he left nearly all of his assets to his new wife (Mary Eve Kassen Moriarty v. Catherine C. Moriarty, et al., No. 19A-PL-2342, Ind. App.).

  • July 02, 2020

    Class Certification Denied In Nursing Home Negligence, Misrepresentation, Case

    LEXINGTON, Ky. — A federal judge in Kentucky on July 1 denied class certification in a former resident’s suit alleging, among other things, that a nursing home advertised false staffing information and inflated its ratings, finding that the proposed class is not ascertainable and that the plaintiff failed to meet the class requirements of Federal Rule of Civil Procedure 23 (Carrie Johnson, et al. v. BLC Lexington, SNF, LLC, et al., No. 19-064, E.D. Ky., 2020 U.S. Dist. LEXIS 114505).

  • July 01, 2020

    Conviction, Expert Ruling Upheld In Medicare Fraud Case Against Laser Eye Doctor

    ATLANTA — A trial court did not abuse its broad discretion in limiting the testimony of a medical expert for an ophthalmologist who was eventually convicted of health care fraud for conducting unnecessary and unhelpful procedures on hundreds of mostly elderly patients, the 11th Circuit U.S. Court of Appeals ruled June 29 in affirming the doctor’s conviction (United States v. David Ming Pon, No. 17-11455, 11th Cir., 2020 U.S. App. LEXIS 20103).

  • July 01, 2020

    Georgia Hospital Employees Allege COVID-19 Testing Manipulation, Seek TRO

    LAWRENCEVILLE, Ga. — An Athens, Ga., hospital is manipulating COVID-19 tests to obtain “false negative” results to keep space for new admissions and avoid negative publicity and oversight, four current and former employees allege in an amended petition for an emergency temporary restraining order (TRO) and interlocutory injunction filed June 22 in a Georgia state court (Jane Doe 1, et al. v. Landmark Hospital of Athens, LLC, No. 20-A-04131-3, Ga. Super., Gwinnett Co.).

  • June 30, 2020

    Indiana Panel Reverses Dismissal Of Paternity Cause In Grandparent Visitation Case

    INDIANAPOLIS — An Indiana appellate panel on June 26 reversed a trial court’s dismissal of a paternity cause, finding that the paternal grandparents’ request for visitation “is akin to a counterclaim or cross-claim” pursuant to Trial Rule 41(A) and, therefore, should not be dismissed against the defendant’s objection “‘unless the counterclaim or cross-claim can remain pending for independent adjudication by the court’” (Teresa Tapia Sevilla, et al. v. Maria Lopez, No. 19A-JP-2016, Ind. App., 2020 Ind. App. LEXIS 269).

  • June 30, 2020

    Texas Inmates Class Certified In COVID-19 Response Lawsuit

    HOUSTON — A federal judge in Texas on June 27 certified a class of inmates housed in a prison for primarily elderly inmates and those with health issues in a lawsuit accusing the Texas Department of Criminal Justice’s (TDCJ) of insufficiently responding to the novel coronavirus, which causes COVID-19 (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-1115, S.D. Texas, 2020 U.S. Dist. LEXIS 112807).

  • June 29, 2020

    Department Of Justice, Senior Housing Community Settle Disability Discrimination Suit

    ALLENTOWN, Pa. — The owners and operators of a senior housing community will pay a $55,000 civil penalty and establish a settlement fund of at least $250,000 to compensate residents and prospective residents who were harmed by tenant occupancy and eligibility policies and practices that discriminate against people with disabilities, according to a consent order signed June 25 by a federal judge in Pennsylvania (United States v. Heritage Senior Living, LLC, et al., No. 20-2272, E.D. Pa.).

  • June 29, 2020

    High Court Won’t Review Nursing Facility’s Appeal Of Arkansas Arbitration Ruling

    WASHINGTON, D.C. — The U.S. Supreme Court on June 29 denied review of a divided Arkansas Supreme Court ruling finding that only some arbitration agreements signed as part of a skilled nursing facility’s admissions process should be enforced (Robinson Nursing and Rehabilitation Center LLC, et al. v. Andrew Phillips, et al., No. 19-Ar1154, U.S. Sup.).

  • June 26, 2020

    Split W.Va. High Court Undoes Nursing Home Arbitration Unconscionability Ruling

    CHARLESTON, W.Va. — A West Virginia trial court erred in determining that a nursing home could not apply an arbitration agreement to wrongful death claims, a majority of the West Virginia Supreme Court of Appeals ruled in a June 16 memorandum that included a partial dissent holding that a “loser pays” provision in the agreement was unconscionable and a dissent that held that to apply the agreement would breach the state’s constitution (Stonerise Healthcare, LLC., et al. v. Susan K. Oates., No. 19-0215, W.Va. Sup., 2020 W.Va. LEXIS 388),

  • June 26, 2020

    Nursing Facility Cannot Arbitrate Wrongful Death Suit, New Mexico Panel Affirms

    ALBUQUERQUE, N.M. — The New Mexico Court of Appeals on June 11 affirmed a lower court ruling that a nursing facility cannot apply an arbitration agreement to a wrongful death suit filed by the family of a former resident because the facility rushed the signing of the contract and offered no meaningful choice as to whether to accept its terms (Lee Hunt, et al. v. The Rio at Rust Centre, LLC, et al., No. A-1-CA-37406 and A-1-CA-37902, N.M. App., 2020 N.M. App. LEXIS 29).