Mealey's Elder Law

  • November 12, 2020

    6th Circuit Reverses Fine For Nursing Facility’s Failure To Consider Staff Increase

    CINCINNATI — A split Sixth Circuit U.S. Court of Appeals panel on Oct. 27 ruled that a penalty imposed by the Centers for Medicare & Medicaid Services (CMS) against a nursing facility for failure to consider increasing staff after patient falls increased was arbitrary and capricious because the facility was given no fair notice that it must make such considerations (Golden Living Center – Mountain View v. Secretary of Health and Human Services, et al., No. 19-3755, 6th Cir., 2020 U.S. App. LEXIS 33997).

  • November 12, 2020

    Illinois Panel Affirms Denial Of Father’s Petition To End Grandparent Visitation

    OTTAWA, Ill. — A divided Illinois panel on Nov. 6 affirmed a lower court’s dismissal of a father’s petition to terminate visitation between his minor daughter and her grandmother, finding that the grandmother met her burden of demonstrating that termination of visitation would cause the child undue harm and that the trial court adequately weighed the presumption in favor of a fit parent’s decisions regarding grandparent visitation (Przemyslaw W. v. Nicole Antionette A., et al., No. 3-19-0734, Ill. App. 3rd Dist., 2020 Ill. App. Unpub. LEXIS 1879).

  • November 11, 2020

    New York Justices 70 And Over Sue Over Termination Of Their Services

    RIVERHEAD, N.Y. — Four New York justices, all 70 or older, and one attorney filed a complaint in a New York court on Nov. 5, alleging that the termination of their services, allegedly due to budgetary constraints, constitutes age discrimination and violation of the state constitution (Hon. Ellen Gesmer, et al. v. The Administrative Board of the New York State Unified Court System, et al., No. 616980/2020, N.Y. Sup., Suffolk Co.).

  • November 11, 2020

    Federal Judge Denies Health Care Proxies TRO To Enjoin End Of Life-Sustaining Care

    SYRACUSE, N.Y. — A federal judge in New York on Nov. 5 denied health care proxies’ motion for a temporary restraining order (TRO) to enjoin a hospital from removing a brain-dead woman from a ventilator and requiring it to provide the woman with additional life-sustaining care, finding that the plaintiffs have not shown a serious question on the merits on any of their claims (Carol Thomas, et al. v. Mohawk Valley Health System, et al., No. 20-1347, N.D. N.Y., 2020 U.S. Dist. LEXIS 206934).

  • November 11, 2020

    8th Circuit Finds Long-Time Worker Failed To Show Age Bias

    ST. PAUL, Minn. — An employee of more than 40 years who was fired after allegedly making several mistakes failed to show that she was discriminated against due to her age or in retaliation for alleging age bias, an Eighth Circuit U.S. Court of Appeals panel ruled Oct. 23 (Julie McKey v. U.S. Bank National Association, No. 19-2638, 8th Cir., 2020 U.S. App. LEXIS 33398).

  • November 05, 2020

    Decedent’s Wife, Not Trustee Of Decedent’s Estate, Is Entitled To 401(k) Proceeds

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on Nov. 2 affirmed a district court’s ruling that a decedent’s wife and not the trustee of the decedent’s estate is entitled to the proceeds of the decedent’s 401(k) plan because the marriage was never declared void while the decedent was alive as required under applicable Virginia law (Lyon Shipyard 401[k] Plan et al., v. Minwer H. Subeh et al., No. 19-2013, 4th Cir., 2020 U.S. App. LEXIS 34544).

  • November 04, 2020

    Federal Judge Finds PREP Act Inapplicable, Remands Nursing Home COVID Case

    TAMPA, Fla. — A personal representative’s claims that a man’s death from COVID-19 was the result of nursing home negligence do not fall under the Public Readiness and Emergency Preparedness (PREP) Act, a federal judge in Florida found Oct. 29, remanding her suit to state court (Jessica A. Gunter v. CCRC OPCO-Freedom Square, LLC, et al., No. 20-1546, M.D. Fla., 2020 U.S. Dist. LEXIS 201622).

  • November 03, 2020

    Advertising Discrimination Class Claims Against Facebook Voluntarily Dismissed

    SAN FRANCISCO — A month after a California federal judge dismissed her lawsuit alleging age and sex discrimination in Facebook Inc.’s dissemination of financial services advertisements, a Washington, D.C., woman on Nov. 2 voluntarily dismissed her suit, opting against amending her putative class complaint against the social network (Neuhtah Opiotennione v. Facebook Inc., No. 19-7185, N.D. Calif.,).

  • November 03, 2020

    High Court Refuses To Review Whether Spouse Waived Rights To Pension Plan

    WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 2 denied a petition for writ of certiorari, refusing to review whether a surviving spouse waived her rights to her spouse’s pension plan, governed by the Employee Retirement Income Security Act, pursuant to an antenuptial agreement signed by the husband and wife before their marriage (Zhiheng Sheng v. Daniel Michael Snyder, No. 20-188, U.S. Sup., 2020 U.S. LEXIS 5236).

  • November 02, 2020

    Telephonic Arguments Heard By U.S. High Court In Railroad Benefits Review Case

    WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 2, on Justice Amy Coney Barrett’s first day hearing oral arguments, heard from attorneys representing a former railroad worker who was injured on the job and the U.S. Railroad Retirement Board on whether the denial of a worker’s request to reopen a benefits request under the Railroad Unemployment Insurance Act (RUIA) and the Railroad Retirement Act (RRA) is subject to judicial review (Manfredo M. Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup.).

  • November 02, 2020

    HHS:  Court Erred In Allowing Appeal Of Denied Medicare Coverage For Hospital Stays

    NEW YORK — A federal judge in Connecticut incorrectly granted relief to Medicare beneficiaries placed on observation status after being admitted to the hospital as inpatients because they lack standing, improperly allowed the case to proceed as a class action and erred in concluding that the changed status constitutes a governmental deprivation of property, the secretary of Health and Human Services (HHS) tells the Second Circuit U.S. Court of Appeals in an Oct. 27 appellant brief (Lee Barrows, et al. v. Alex Azar, No. 20-1642, 2nd Cir.).

  • October 27, 2020

    Class Certification Denied; Parties, Claim Struck In Assisted Living Contract Case

    RALEIGH, N.C. — A federal judge in North Carolina on Oct. 21 denied class certification to residents of an assisted living facility who claim that the services the facility provides do not meet their needs, finding that individualized issues regarding injury predominate over common issues (William H. Bartels, et al. v. Saber Healthcare Group LLC, et al., No. 16-283, E.D. N.C., 2020 U.S. Dist. LEXIS 195281).

  • October 27, 2020

    VA Secretary:  Title VII Retaliation Claim Causation Standard Is Binding

    ATLANTA — Based on the U.S. Supreme Court’s limited consideration of a Veterans Affairs pharmacist’s claims, the 11th Circuit U.S. Court of Appeals is bound by Trask v. Secretary, Department of Veterans Affairs and must apply the but-for causation standard to federal-sector Title VII of the Civil Rights Act of 1964 retaliation cases, the VA secretary argues in an Oct. 22 supplemental brief filed in the appellate court, adding that even if the court is not bound by that ruling, the outcome would not change (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).

  • October 26, 2020

    9th Circuit Finds Wrong Standard Used, Reinstates Worker’s Age Bias Claim

    PASADENA, Calif. — A salesperson may proceed with his age bias claim against his former employer after offering sufficient evidence to create a credibility question concerning his performance problems that were cited as the reason for termination, a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 20 (Ronald Pineda v. Abbott Laboratories Inc., et al., No. 19-55019, 9th Cir., 2020 U.S. App. LEXIS 33044).

  • October 23, 2020

    Ohio Panel Affirms That Decedent Had Mental Capacity To Designate IRA Beneficiary

    CINCINNATI — A trial court correctly applied the test for testamentary capacity to determine whether a woman with dementia had the mental capacity to designate a beneficiary for her individual retirement account, an Ohio appellate panel ruled Oct. 21, affirming the lower court’s grant of judgment in favor of her son (Kimberly Webb v. The Betty S. Anderson Children Trust, et al., No. C-190600, Ohio App., 1st Dist., 2020 Ohio App. LEXIS 3810).

  • October 22, 2020

    Panel: Hurricane-Based Claims Against Florida Nursing Home Must Be Arbitrated

    WEST PALM BEACH, Fla. — A resident’s tort claims against a Florida nursing home related to injuries she sustained when the facility lost power to its air conditioning units during Hurricane Irma must be arbitrated, a state appellate panel affirmed Oct. 21, finding that the woman’s claims “relate to” the facility’s agreement to provide her with care and nursing services (Christine Cooper v. Rehabilitation Center at Hollywood Hills LLC, et al., No. 4D20-163, Fla. App., 4th Dist., 2020 Fla. App. LEXIS 14945).

  • October 15, 2020

    Family’s Claim That Man Not Competent To Enter Marriage Dismissed; Will Affirmed

    HELENA, Mont. — The Montana Supreme Court on Sept. 22 ruled that a woman did not exceed her authority as power of attorney for her late husband and that he was mentally competent when he entered into the marriage the day before he died, upholding a lower court’s decision to confirm and admit to probate the decedent’s will and to appoint the wife as representative of the estate (In Re:  Daniel Cook, No. 19-0525, Mont. Sup., 2020 Mont. LEXIS 2345).

  • October 15, 2020

    Rehearing Denied In Pension Reduction Case As Employer Files For Bankruptcy

    SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel on Oct. 13 denied a marine painting and sandblasting company’s petition for rehearing after a split panel ruled that its reduction of pension payments without bargaining violated the National Labor Relations Act (NLRA) and, on the same day, that the company filed notice of a pending Chapter 11 case (Delta Sandblasting Company, Inc. v. National Labor Relations Board, No. 18-73097, 9th Cir., 2020 U.S. App. LEXIS 32272).

  • October 15, 2020

    Oklahoma High Court Rules Against Estranged Wife In Burial Dispute

    OKLAHOMA CITY — In an Oct. 13 ruling, the Oklahoma Supreme Court upheld the denial by a trial court of an estranged wife’s request for a temporary restraining order (TRO) barring her children from assuming control of her late husband’s burial (Dayna Foresee v. Jeremy Foresee, et al., No. 118599, Okla. Sup., 2020 Okla. LEXIS 93).

  • October 14, 2020

    Remand Of COVID-19 Death Suit Against Nursing Home, Doctor Appealed

    LOS ANGELES — A nursing home, its owner and a doctor on Oct. 9 filed notices alerting a California federal court that they are appealing to the Ninth Circuit U.S. Court of Appeals the court’s order remanding a COVID-19 wrongful death and negligence suit against them to state court (Emma Martin, et al. v. Serrano Post Acute LLC, et al., No. 20-5937, C.D. Calif.).

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