Mealey's Elder Law

  • July 11, 2022

    5th Circuit Affirms Remand Of Nursing Home COVID Death Suit To State Court

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on July 7 affirmed the remand to state court of a wrongful death suit filed against a nursing home by the family of a woman who died there from COVID-19, finding that there are no claims for willful misconduct under the Public Readiness and Emergency Preparedness (PREP) Act and no longer “any federal claims, but only negligence claims under Louisiana law.”

  • July 08, 2022

    Pa. Panel Affirms Finding That Care Home’s Arbitration Agreement Is Unconscionable

    PITTSBURGH — A Pennsylvania appellate court on July 5 affirmed a trial court’s order overruling a nursing home’s preliminary objection to compel arbitration in a negligence and wrongful death suit filed against it by the daughter of a former nursing home resident who died there, finding that the trial court correctly determined “that the Arbitration Agreement was unconscionable as a matter of law” due to its unfavorable terms without giving the decedent “any meaningful choice to accept or reject” it.

  • July 06, 2022

    Georgia High Court: Undue Influence Claim Not Barred By In Terrorem Trust Clause

    ATLANTA — The Georgia Supreme Court on June 30 reversed and remanded a Court of Appeals decision determining that an in terrorem clause barred a son’s undue influence claim and resulted in his forfeiture of assets as a trust beneficiary of his father’s trust, finding that because the son’s “undue-influence claim was successful, the void in terrorem clause did not result in his forfeiture of benefits from the trust.”

  • July 06, 2022

    Rehearing Sought After Split 7th Circuit Orders Trial In Age Bias Suit

    CHICAGO — An employer accused of failing to stop repeated verbal and physical harassment of an employee due to his age petitioned for a rehearing on June 30, approximately two weeks after a divided Seventh Circuit U.S. Court of Appeals panel vacated summary judgment for the employer and remanded the case for a trial.

  • July 01, 2022

    Maine High Court Affirms Grandmother’s Visitation Dismissal For Lack of Standing

    PORTLAND, Maine — The Maine Supreme Judicial Court on June 14 affirmed a lower court’s order dismissing a grandmother’s petition for visitation for lack of standing, finding that the lower court’s use of the preponderance of the evidence standard was correct “and the record did not compel the court to make factual findings in the grandmother’s favor.”

  • July 01, 2022

    Cert Petition Filed Seeking Review Of Medicare Fraud Standards In Hospice Care

    WASHINGTON, D.C. — With splits among U.S. Circuit Courts of Appeals regarding Medicare fraud standards in hospice certifications, U.S. Supreme Court review is warranted, a man contends in his June 22 petition for writ of certiorari, after his federal conviction in a health care fraud scheme was upheld by the Fifth Circuit U.S. Court of Appeals.

  • July 01, 2022

    Alabama High Court: Grandson Entitled To Father’s Share Of Grandfather’s Estate

    MONTGOMERY, Ala. — The Alabama Supreme Court on June 24 reversed and remanded a probate court’s determination that a decedent’s daughter was sole beneficiary of her father’s estate rather than her nephew inheriting his deceased father’s share, finding that the will’s language of “share and share alike” did not support the conclusion that if the decedent’s child predeceased him, the surviving child would inherit the whole estate.

  • June 30, 2022

    Noting Prior De Novo Review, 9th Circuit Denies Policy Holders Rehearing Request

    SEATTLE — The Ninth Circuit U.S. Court of Appeals on June 28 denied insureds’ request for rehearing en banc and amended its May 10 memorandum opinion to note the de novo review affirming summary judgment of the insureds’ claims in an insurer’s suit against them seeking a declaration that the insurer correctly denied their claims for long-term care coverage.

  • June 30, 2022

    6th Circuit Affirms Dismissal Of Fraudulent Inheritance Suit For Lack Of Standing

    CINCINNATI — The Sixth Circuit U.S. Court of Appeals on June 16 affirmed a district court order dismissing a fraud suit filed by a woman against her purported biological relatives alleging that she should have inherited her father’s estate, finding that her biological aunt’s failure to tell her that the decedent was her father when he died does not constitute an injury to establish standing under Article III of the U.S. Constitution.

  • June 29, 2022

    Federal Judge Denies Judgment Motion In Senior Homes ADA Design Violation Suit

    ALLENTOWN, Pa. — A Pennsylvania federal judge on June 22 denied an architectural firm’s motion for judgment on the pleadings in a suit brought by the U.S. government against the owners of senior homes and the architects who designed them alleging failure to meet the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) requirements, finding that because the government “brings a single pattern or practice claim under each statute, the federal limitations period for suits to collect civil penalties poses no obstacle.”

  • June 27, 2022

    Government Sues Care Homes Under False Claims Act, Alleging ‘Substandard’ Care

    PHILADELPHIA — The U.S. government on June 17 filed a first amended complaint in Pennsylvania federal court against three nursing homes in Pennsylvania and Ohio, asserting claims under the False Claims Act (FCA) and common-law claims of payment by mistake and unjust enrichment related to alleged “grossly substandard nursing home services to Medicare and Medicaid beneficiaries” at the homes, seeking treble damages under the FCA for Medicare and Medicaid fraud claims.

  • June 27, 2022

    Estate Reps Seek To Avoid Punitive Damages Cap In $2.5M Award Against Care Home

    LAWRENCEVILLE, Ga. — After a Georgia state court jury on June 1 issued a $2.5 million verdict against an assisted living home, including $1 million in punitive damages, in favor of surviving children of a deceased former resident who died after sustaining fire ant stings, the children moved the next day for entry of judgment without applying Georgia’s $250,000 cap on punitive damages, asserting that the cap is inapplicable to violations of the Remedies for Residents of Personal Care Homes Act.

  • 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.”

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