Mealey's Elder Law

  • March 02, 2021

    Judge Seeks Briefing On COVID Nursing Home Cases Remanded After PREP Act Removal

    FORT WORTH, Texas — Nursing home defendants that removed a negligence complaint filed by the son of a resident who died after contracting COVID-19 at the facility to a federal court in Texas claiming preemption by the Public Readiness and Emergency Preparedness (PREP) Act and federal officer jurisdiction were ordered Feb. 25 to submit supplemental briefing by March 8 addressing recent district court cases remanding similar suits that had been removed on the same bases.

  • March 01, 2021

    New York Panel: Daughter Could Not Bind Father To Nursing Home Arbitration Pact

    NEW YORK — A New York appellate panel on Feb. 25 found that a daughter lacked power of attorney or the authority to bind her father to an arbitration agreement she signed while admitting him to a nursing facility, reversing a trial court’s ruling granting the facility defendants’ motion to compel arbitration of the medical malpractice and wrongful death action.

  • March 01, 2021

    Pension Plan Retirees Denied Rehearing In Due Process Violation Suit

    CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Feb. 25 denied a petition for rehearing en banc filed by retirees who argued that despite the court’s issuance of an amended opinion on Dec. 28 to acknowledge the ruling of Nachman Corp. v. PBGC, a rehearing was still warranted because the Sixth Circuit failed to follow Nachman’s holdings in determining that there was no due process violation in the termination of a salaried pension plan.

  • March 01, 2021

    High Court To Review Whether Windfall Provision Applies To Dual-Service Technicians

    WASHINGTON, D.C. — The U.S. Supreme Court on March 1 agreed to review whether the windfall elimination provision (WEP) applied to reduce the Social Security retirement benefits of a former dual-service technician.

  • March 01, 2021

    Employee Asks U.S. Supreme Court To Take Up Age Bias Evidence Question

    WASHINGTON, D.C. — The U.S. Supreme Court must weigh in on evidentiary issues in an age bias dispute because the 11th Circuit U.S. Court of Appeals’ ruling for Federal Express Co. (FedEx) in a former manager’s age bias and retaliation case after applying its “convincing mosaic” standard of proof creates a circuit split as the Seventh Circuit rejected that standard and other special heightened standards of proof, the former manager argues in his Feb. 8 petition for a writ of certiorari.

  • February 26, 2021

    Estate Petitions Court To Distribute Nursing Home Wrongful Death Settlement

    LANCASTER, Pa. — The attorney for the estate of a deceased nursing home resident on Feb. 18 petitioned a Pennsylvania court to distribute a $200,000 settlement in a nursing home wrongful death and survival case.

  • February 25, 2021

    Federal Magistrate Judge Upholds Order To Repay $75,000 In Medical Costs To Medicare

    FORT LAUDERDALE, Fla. — A Florida federal magistrate judge sided with the federal government on Feb. 12, upholding in a report and recommendation a Medicare Appeals Council’s ruling that a Medicare beneficiary who settled his medical malpractice claim against a hospital for $1 million was obligated to repay Medicare more than $75,000 in medical expenses.

  • February 25, 2021

    Mississippi Court Of Appeals Reverses Summary Judgment In Contested Wills Case

    JACKSON, Miss. — Affidavits attesting to the validity of purported holographic and typed wills created a genuine issue of material fact regarding the validity of those wills, even if the affidavits’ signatory may have been married to a beneficiary of those wills at the time of the wills’ signing and was a subscribing witness to the wills, the Mississippi Court of Appeals held Feb. 9 in reversing summary judgment in favor of the objector to the wills.

  • February 25, 2021

    Iowa High Court:  Validity Of Will Executed By Living Testator Cannot Be Challenged

    DES MOINES, Iowa — The Iowa Supreme Court on Feb. 19 found that the state Probate Code does not permit prospective heirs to contest the validity of a will of a testator who is still living, affirming a lower court’s decision not to adjudicate the validity of two wills executed by a man while he was in a voluntary conservatorship.

  • February 24, 2021

    Judge Trims False Claims Act Allegations Against Nursing Home Owners

    PHILADELPHIA — A federal judge in Pennsylvania on Feb. 5 granted in part a motion to dismiss filed by Kindred Healthcare Inc. and a number of its subsidiaries, finding that a relator in a False Claims Act (FCA) lawsuit failed to sufficiently allege that they misrepresented their compliance with staffing requirements to receive larger reimbursements from Medicare and Medicaid and that they inappropriately used government funding received from the insurers.

  • February 24, 2021

    3rd Circuit Affirms Summary Judgment, Verdict For Nursing Home Defendants

    PHILADELPHIA — A federal judge in Pennsylvania did not err in granting summary judgment to two physicians who contracted with a nursing home to care for its residents, in refusing to issue two jury instructions proposed by the estate of a former resident who asserted civil rights violations or in limiting the testimony of the estate’s expert witness, a Third Circuit U.S. Court of Appeals panel ruled Feb. 22 in a nonprecedential opinion.

  • February 24, 2021

    11th Circuit Affirms Judgment In ERISA Life Insurance Interpleader Case

    ATLANTA — A federal district court’s finding that a principal had the mental capacity to enter into a power of attorney was not “clearly erroneous,” and the court properly applied Georgia state law in determining the beneficiary of a life insurance policy in an interpleader action, the 11th Circuit U.S. Court of Appeals affirmed Feb. 12.

  • February 23, 2021

    California Panel Reverses $31M Age Bias, Harassment Award, Orders New Trial

    LOS ANGELES — A California appellate panel on Feb. 18 reversed a more than $31 million judgment for an employee on her claims of age-based harassment and discrimination due to prejudicial error by the trial court when it excluded some of the employer’s evidence during the liability phase.

  • February 19, 2021

    LTCI Policies’ Rate-Increase Caps Are Invalid, New Hampshire High Court Rules

    CONCORD, N.H. — The New Hampshire Supreme Court on Feb. 17 held that amended regulations that retroactively limited rate increases for long-term care insurance (LTCI) policies exceeded the New Hampshire Insurance commissioner's mandate “because they are not reasonable rules that either promote premium adequacy or protect policyholders in the event of substantial rate increases” and, therefore, are invalid, reversing and remanding a lower court’s ruling on a life insurer’s ultra vires claim against the New Hampshire Department of Insurance.

  • February 16, 2021

    Judge Denies Dismissal Of Suit Over Scheme Between Pharmacy, Nursing Homes

    ATLANTA— A federal judge in Georgia on Feb. 10 denied dismissal of a False Claims Act (FCA) lawsuit filed by a former account manager against a local pharmacy services supplier over an alleged kickback scheme between the company and nursing homes, finding that the relator’s amended complaint sufficiently alleged that the provider offered remuneration to assisted living communities (ALCs) that made the defendant company a preferred pharmacy and that the relationship between the parties resulted in the submission of fraudulent claims to insurers.

  • February 11, 2021

    Minnesota Appeals Court Reverses Harassment Order Obtained By Woman’s Guardian

    ST. PAUL, Minn. — A trial court abused its discretion in granting a harassment restraining order (HRO) against a man on behalf of a woman in a care facility without considering the Minnesota bill of rights for individuals under guardianship, a Minnesota appeals court concluded Jan. 25, in reversing and remanding the order.  It also held that there was insufficient evidence to support the HRO obtained by the woman’s daughter.

  • February 11, 2021

    Federal Judge: PREP Act Preempts, Immunizes Facility From COVID Death Claims

    SANTA ANA, Calif. — Finding that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims stemming from a senior living facility resident’s COVID-19-related death and immunizes the facility from liability, a federal judge in California on Feb. 10 denied the family’s motion to remand and granted the facility’s motion to dismiss.

  • February 11, 2021

    Appellants Tell 3rd Circuit COVID Rehab Facility Death Cases Belong In Federal Court

    PHILADELPHIA — A federal judge in New Jersey erred in finding that the operators of two rehabilitation facilities where at least 50 patients have died from COVID-19 were not acting at the direction of a federal agency or operator and in concluding that the Public Readiness and Emergency Preparedness (PREP) Act did not completely preempt state law claims against them, the operators tell the Third Circuit U.S. Court of Appeals in a Feb. 8 brief urging the court to reverse the lower court’s order remanding two putative negligence and wrongful death class actions to state court.

  • February 11, 2021

    Illinois Appeals Court Orders New Trial Over Heirship, Marriage’s Validity

    ELGIN, Ill.— An Illinois appeals court panel on Feb. 1 ordered a new trial in an action to determine whether a woman’s marriage to a now-deceased man who was subject to a guardianship at the time of the event was valid, thus making her his heir, finding that the trial court judge erred when ruling that the woman could not testify under the Dead Man’s Act.

  • February 11, 2021

    Kentucky High Court Applies Stepparent Exception To Suit Over Grandparent Visitation

    FRANKFORT, Ky. — Because Kentucky’s grandparent visitation statute does not address issues raised in an action brought by a paternal grandfather to continue visiting his granddaughter, who had been adopted by her maternal grandmother, the Kentucky Supreme Court applied a statutory stepparent exception to the case.  The state high court on Jan. 21 reversed and remanded to the family court to determine whether visitation was in the child’s best interest.

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