Mealey's Elder Law

  • October 14, 2020

    5th Circuit Stays Injunction In Inmates’ COVID-19 Response Suit

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Oct. 13 granted the Texas Department of Criminal Justice’s (TDCJ) emergency motion to stay a permanent injunction that had been scheduled to take effect Oct. 14 following a district court’s findings in a class complaint that insufficient actions were taken to protect inmates housed in a Texas prison primarily for elderly individuals and those with health issues from the novel coronavirus (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-20525, 5th Cir., 2020 U.S. App. LEXIS 32325).

  • October 12, 2020

    VA Pharmacist Seeks Remand Of Retaliatory Hostile Environment Claim

    ATLANTA — The 11th Circuit U.S. Court of Appeals should hold that a Title VII of the Civil Rights Act of 1964 violation may be established where a personnel action is tainted by retaliation even without a but-for showing and should remand a retaliatory hostile work environment claim for reconsideration in light of an intervening decision in Monaghan v. Worldpay US, Inc., a Veterans Affairs pharmacist argues in her Oct. 8 supplemental opening brief following the court’s grant of rehearing (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).

  • October 12, 2020

    OSHA Announces Nearly $1M In Coronavirus Violations

    WASHINGTON, D.C. — The U.S. Department of Labor’s Occupational Safety and Health Administration announced Oct. 9 that it has cited 62 establishments due to violations related to the novel coronavirus since the start of the pandemic and has proposed penalties totaling $913,133.

  • October 12, 2020

    Age, Sex Discrimination Claims Over Facebook Advertisements Dismissed

    SAN FRANCISCO — A putative class complaint alleging age and gender discrimination by Facebook Inc. in the purported exclusion of financial services advertisements from female and older users of the social network was dismissed Oct. 2, with a California federal magistrate judge finding that the lead plaintiff failed to plead the necessary injury-in-fact to establish standing under Article III of the U.S. Constitution (Neuhtah Opiotennione v. Facebook Inc., No. 19-7185, N.D. Calif., 2020 U.S. Dist. LEXIS 184367).

  • October 12, 2020

    EEOC Seeks Comments On Changes To Conciliation Process

    WASHINGTON, D.C. — The Equal Employment Opportunity Commission on Oct. 9 published a notice of proposed rule-making (NPRM) to outline steps taken during the conciliation process in light of the U.S. Supreme Court’s ruling in Mach Mining, LLC v. EEOC and asks the public to comment on the proposal within the next 30 days.

  • October 09, 2020

    Split 7th Circuit Upholds Social Security Reduction For Dual Citizens Class

    CHICAGO — Work performed in Canada on which no Social Security taxes are paid is not “employment” as defined in Section 410(a)(C) of the Social Security Act, and the totalization agreement between the United States and Canada doesn’t affect the application of the Windfall Elimination Provision (WEP) to Social Security benefits being collected by a class of dual citizens who are also receiving benefits under equivalent Canadian plans, a split Seventh Circuit U.S. Court of Appeals panel ruled Oct. 5 (Lorraine Beeler, et al. v. Andrew M. Saul, et al., No. 19-2099, 7th Cir., 2020 U.S. App. LEXIS 31614).

  • October 08, 2020

    Panel Reverses Dismissal Of Discovery Complaint Over Potential Negligence Claims

    BOSTON — An assisted living facility resident was entitled to pursue a complaint for discovery to explore the viability of potential negligence claims over a fall that she experienced, a Massachusetts appellate panel ruled Oct. 5, reversing a lower court’s dismissal and deeming the matter not moot under the statute of limitations or in light of the resident’s subsequent death (Kenneth F. Atchue v. Benchmark Senior Living LLC, et al., No. 19-P-125, Mass App., 2020 Mass. App. LEXIS 153).

  • October 05, 2020

    U.S. Supreme Court Won't Hear Vested Lifetime Benefits Appeal

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 denied a petition for a writ of certiorari filed by employers challenging a Seventh Circuit U.S. Court of Appeals' order to continue providing health insurance benefits for retirees and their families (Signode Industrial Group LLC, et al. v. Harold Stone, et al., No. 19-1334, U.S. Sup., 2020 U.S. LEXIS 4074).

  • October 05, 2020

    U.S. High Court Won't Review Revocation Of Florida Rehabilitation Center's License

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 declined to review whether a Florida agency's decision to revoke the license of a rehabilitation center where eight residents died in the wake of Hurricane Irma violated due process (Rehabilitation Center at Hollywood Hills LLC v. Florida Agency for Health Care Administration, No. 19-1400, U.S. Sup.).

  • October 02, 2020

    D.C. Federal Judge Dismisses Dispute Over Windfall Application

    WASHINGTON, D.C. — In a Sept. 29 holding, a District of Columbia federal judge granted the Social Security Administration dismissal of allegations that it unlawfully applied the Windfall Elimination Provision (WEP) to the Social Security benefits of a group of dual citizens (William Turnbull, et al. v. Nancy Berryhill, No. 16-1750, D. D.C., 2020 U.S. Dist. LEXIS 178775).

  • October 01, 2020

    Facility Operators Tell 7th Circuit FNHRA Doesn't Confer Private Right Of Action

    CHICAGO — A federal judge in Indiana did not err in finding that the Federal Nursing Home Reform Act (FNHRA) does not confer a private right of action and, therefore, does not support a nursing home resident's claim for violation of his civil rights, the facility, its owner and the company that manages and operates it tell the Seventh Circuit U.S. Court of Appeals in a Sept. 29 appellee brief (Gorgi Talevski v. Health and Hospital Corporation of Marion County, et al., No. 20-1664, 7th Cir.).

  • October 01, 2020

    Tennessee Appeals Court Affirms That Nursing Home Can't Force Arbitration

    JACKSON, Tenn. — Finding no evidence that the daughter of a nursing home resident had "actual or apparent authority" to sign an arbitration agreement, a Tennessee appeals court on Sept. 17 affirmed a lower court's decision to deny the facility's motion to compel arbitration in a wrongful death suit (Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV, Tenn. App., 2020 Tenn. App. LEXIS 418).

  • September 30, 2020

    11th Circuit Grants Rehearing In Age Bias Suit Remanded By U.S. Supreme Court

    ATLANTA — The 11th Circuit U.S. Court of Appeals on Sept. 28 agreed to reconsider the but-for causation standard's application to Title VII of the Civil Rights Act of 1964 federal-sector retaliation claims when it granted a panel rehearing sought by a Veterans Affairs pharmacist in her lawsuit remanded by the U.S. Supreme Court after the appellate panel ruled April 24 to reverse summary judgment for the secretary of Veterans Affairs on the pharmacist's age bias claim but left in place a summary judgment ruling on her retaliation claim (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).

  • September 29, 2020

    In Reversal, Kentucky Grandparent Visitation Statute Deemed Unconstitutional

    FRANKFORD, Ky. — A unanimous Kentucky Supreme Court on Sept. 24 reinstated a trial court's determination that a provision of the Kentucky Revised Statutes relating to grandparent visitation is unconstitutional because it "runs afoul of a parent's fundamental constitutional right to the care and custody of his or her child" (Justin Pinto v. Van Robison, et al., No. 2019-SC-0615-DE, Ky. Sup., 2020 Ky. LEXIS 301).

  • September 28, 2020

    Massachusetts Grand Jury Indicts 2 For Neglect In Soldiers' Home COVID Outbreak

    BOSTON — The superintendent and former medical director of the Soldiers' Home in Holyoke were indicted Sept. 25 by a Massachusetts grand jury on criminal neglect charges for their roles in the COVID-19 outbreak that contributed to the death of at least 76 residents at the facility, the state attorney general announced.

  • September 25, 2020

    Medicare May Recover From Montana Asbestos Settlements, Judge Says

    BILLINGS, Mont. — Medicare may seek reimbursement under the secondary payer act from Montana residents' asbestos settlements because though the plaintiffs portray their settlements as involving only wrongful death, it appears they sought and released medical damages under survival claims, a federal judge in Montana said Sept. 23 (John Hagerty, et al. v. Alex Azar, et al., No. 19-123, D. Mont., 2020 U.S. Dist. LEXIS 174976).

  • September 25, 2020

    California Panel Affirms Woman Interfered In Stepmother's Inheritance

    SACRAMENTO, Calif. — A trial court did not err in finding that a woman intentionally interfered with her stepmother's expected inheritance when she prevented her father from establishing a new living trust to provide for his wife when he became ill, a California appellate panel ruled Sept. 22 (Louise A. Gomez v. Tammy J. Smith, No. C089338, Calif. App., 3rd Dist., 2020 Cal. App. LEXIS 888).

  • September 25, 2020

    Interlocutory Appeal Denied Because Nursing Home Operator Is Not A Government Unit

    SAN ANTONIO — A Texas appellate panel on Sept. 23 denied a interlocutory appeal by the company managing a nursing home after its plea to the jurisdiction was denied in a negligence lawsuit filed by the family of a resident who died after a fall, finding that it lacked jurisdiction because the limited liability company can't be a governmental unit (Gonzales Nursing Operations, LLC v. Alta Mae Smith, et al., No. 04-20-00102-CV, Texas App., 4th Dist., 2020 Tex. App. LEXIS 7671).

  • September 24, 2020

    2nd Circuit:  Medicare Beneficiary Can Aggregate Claims To Meet Amount In Controversy

    NEW YORK — The text of the Medicare Act, "as reinforced by its regulatory and legislative history," allows a beneficiary to aggregate claims for similar or related services to meet the $1,500 amount-in-controversy requirement for judicial review, the Second Circuit U.S. Court of Appeals held Sept. 23, remanding to the district court the beneficiary's suit seeking review of the Medicare Appeals Council's denial of his claims for costs associated with a device he uses to manage his blood glucose (Jonathan A. Bloom v. Alex Azar, No. 18-2390, 2020 U.S. App. LEXIS 30356).

  • September 23, 2020

    New Hampshire High Court Outlines Standards For Guardian, Probate Court On DNR Issue

    CONCORD, N.H. — Addressing questions raised by a probate court grappling with a guardian's request to lift limitations on her authority regarding an elderly ward's health care, the New Hampshire Supreme Court on Sept. 18 held that per state statute, a court cannot limit a guardian's authority to withhold life-sustaining treatment unless it finds that the limitation is in the ward's best interest and that the standard governing the guardian's decision on the issue is the "best interests" standard (In re Guardianship of D.E., No. 2020-368, N.H. Sup., 2020 N.H. LEXIS 153).

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