Mealey's Elder Law
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May 13, 2022
9th Circuit Says LTC Policy Holders Failed To Show Facility Met Policy Terms
SEATTLE — The Ninth Circuit U.S. Court of Appeals on May 10 affirmed summary judgment for a long-term care insurer in a suit against its insureds seeking a declaration that it correctly denied the insureds’ claims, finding that “the district court correctly interpreted the statutes and the insurance policy” when adopting a magistrate’s report and recommendation stating that the insureds failed to show that their assisted living facility met the policy requirements of being a state-licensed nursing home.
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May 13, 2022
Judge Won’t Modify ERISA Section In Dismissal Of Federal WA Cares Suit
SEATTLE — Denying reconsideration of his order dismissing a putative class challenge to Washington’s new public state-sponsored long-term care insurance program known as WA Cares, a Washington federal judge on May 11 said the plaintiffs’ argument that the part of his ruling pertaining to the Employee Retirement Income Security Act was unnecessary because of his holding as to the Tax Injunction Act (TIA) was “exactly backwards.”
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May 12, 2022
Judge Refuses To Dismiss Disability Advocate’s North Carolina Voting Law Dispute
RALEIGH, N.C. — A North Carolina federal judge on May 4 denied the North Carolina State Board of Elections’ (NCSBE) motion to dismiss a suit filed against it by a disability rights organization asserting that North Carolina absentee ballot provisions violate the federal Voting Rights Act and the U.S. Constitution’s supremacy clause by not permitting disabled absentee voters “to rely on the assistant of their choosing,” finding that the organization “has stated a plausible claim for relief” by showing that the cited North Carolina provisions appear to conflict with Section 208 of the Voting Rights Act.
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May 12, 2022
Wis. High Court Refuses To Dismiss Negligence Claim Against Residential Facility
MADISON, Wis. — The Wisconsin Supreme Court on May 6 affirmed an appellate court’s reversal of a trial court order dismissing a daughter’s wrongful death and negligence claims against a community-based residential facility (CBRF) after her mother fell there and later died, finding that statutory liability protections for certain health care workers do not apply to CBRFs.
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May 12, 2022
California Panel Upholds Elder Abuse, Negligence Claims In Annuity Surrender Suit
SACRAMENTO, Calif. — A California appellate court on May 10 affirmed a trial court’s judgment for an annuitant filing negligence and financial elder abuse claims against an insurer that issued an annuity, but reversed a punitive damages award against the insurer, remanding for reconsideration of an attorney fee award, finding that the insurer committed financial elder abuse in accepting money to purchase the annuity while charging a surrender penalty but that evidence is lacking to show that the insurer knew its agent’s “propensity” for “misconduct.”
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May 12, 2022
6th Circuit Vacates Ruling For Employer In Age Bias Suit Due To Direct Evidence
CINCINNATI — A job applicant may proceed with her age bias lawsuit after presenting direct evidence to support her claim, a Sixth Circuit U.S. Court of Appeals panel ruled April 20, opining that while the pro se appellant forfeited appellate review of the trial court’s summary judgment ruling with late objections, the trial court “plainly erred in granting summary judgment to” the employer.
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May 11, 2022
Tutoring Service Providers Accused By EEOC Of Auto Rejections Of Older Applicants
BROOKLYN, N.Y. — The Equal Employment Opportunity Commission in a May 5 complaint filed in a federal court in New York alleges that a group of employers providing English tutoring services to students in China programmed its application software to automatically reject applicants over certain ages.
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May 11, 2022
Nursing Home Asks 2nd Circuit To Dismiss COVID Death Appeal As Moot
BROOKLYN, N.Y. — After a stay was lifted, a nursing home on May 9 filed a reply brief with the Second Circuit U.S. Court of Appeals in support of its motion to dismiss its appeal of a wrongful death suit brought by a son whose father contracted COVID-19 at the facility, arguing that the appeal is moot as the underlying state court suit “no longer exists.”
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May 11, 2022
New DUFTA Claims Dismissed In Fraudulent Transfer Suit Against LTC Insurer
WILMINGTON, Del. — Ruling that “a ‘right to payment’ is a necessary predicate to a viable” claim under the Delaware Uniform Fraudulent Transfer Act (DUFTA) and that the plaintiffs did not plead that right in three new counts, a Delaware vice chancellor on May 10 granted partial dismissal in a putative class suit alleging fraudulent transfers from an insurance subsidiary that more than 1 million policyholders depend on for long-term care (LTC) insurance disability benefits.
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May 10, 2022
Florida Panel: Dismissal Proper In Assisted Living Resident’s Negligence Suit
TALLAHASSEE, Fla. — An assisted living facility’s resident in a May 5 docket entry moved for rehearing en banc two weeks after a Florida appellate panel affirmed a trial court judgment dismissing the resident’s negligence slip-and-fall suit against the facility, finding that the trial court correctly applied the Florida Assisted Living Facilities Act (ALFA) and the resident failed to comply with the act’s presuit requirements and two-year statute of limitations.
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May 10, 2022
Plaintiffs Seek Modification Of ERISA Section In Dismissal Of Federal WA Cares Suit
SEATTLE — Arguing in part that the court’s finding as to the Employee Retirement Income Security Act “was not necessary due to its holding regarding the Tax Injunction Act [TIA],” plaintiffs fighting Washington’s new public state-sponsored long-term care insurance program known as WA Cares on May 6 asked a Washington federal judge to modify that part of his order dismissing their putative class challenge without prejudice for lack of jurisdiction.
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May 09, 2022
Texas Panel Says Denial Of Sanctions In Probate Case Not Abuse Of Discretion
DALLAS — A Texas appeals court on April 26 affirmed a trial court judgment granting probate, denying an attorney ad litem’s motion for sanctions and determining that $1,600 was reasonable attorney fees in an heirship determination, finding that the trial court did not abuse its discretion because the attorney ad litem did not meet the burden of showing her right to relief in seeking sanctions and the “lodestar calculation” of the hours spent investigating unknown heirs “could have been $1000” instead of the $1,600 awarded.
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May 09, 2022
AARP: 2nd Circuit Decision Over Reinterpretation Of ‘Retires’ Contradicts Heinz
NEW YORK — In an amicus curiae brief filed May 4, AARP and AARP Foundation (together, AARP) supported the participants in a defined-benefit multiemployer pension plan in urging rehearing and rehearing en banc of a dispute over reinterpretation of “retires,” arguing that the Second Circuit U.S. Court of Appeals panel wrongly held “that tax considerations are a special case permitting Plans to retroactively strip workers of already-accrued pension benefits.”
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May 09, 2022
California Medicare Provider Says Preemption Clause Bars Elder Abuse Claims
SAN FRANCISCO — A Medicare plan provider on April 18 filed a brief with the California Supreme Court asking it to affirm an appellate court’s opinion affirming the trial court’s judgment for the provider in a negligence, elder abuse and wrongful death suit filed by the son of a deceased former Medicare patient, asserting that the claims are preempted by the Medicare Act’s preemption clause.
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May 03, 2022
6th Circuit: Arbitration Agreement Not Binding In Nursing Home Negligence Suit
CINCINNATI— The Sixth Circuit U.S. Court of Appeals on April 28 affirmed a district court’s ruling that a nursing home arbitration agreement signed by a decedent’s wife does not bind the decedent’s estate in a negligence suit against the nursing home, finding that the court cannot compel arbitration because the nursing home failed to show that the decedent’s wife had the authority to sign the agreement on her husband’s behalf.
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May 03, 2022
D.C. Circuit Hears Arguments In COVID Death Suit Appealed Pursuant To PREP Act
WASHINGTON, D.C. — The District of Columbia Circuit U.S. Court of Appeals on April 28 heard oral arguments in a county-owned nursing home’s appeal, under the Public Readiness and Emergency Preparedness (PREP) Act, of a Pennsylvania federal judge’s order denying dismissal of a COVID-19-related wrongful death suit against it.
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May 02, 2022
Class Certification Denied In Medicare Beneficiaries’ Glucose Monitor Coverage Suit
WASHINGTON, D.C. — A District of Columbia federal judge on April 28 denied Medicare beneficiaries’ motion for class certification in a suit related to denial of coverage for claims for continuous glucose monitors (CGMs), finding that the beneficiaries failed to satisfy the numerosity requirement of class certification because many of the putative class members failed to exhaust their administrative remedies or meet the statute of limitations and amount in controversy requirements.
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May 02, 2022
High Court Will Decide If Nursing Home Reform Act Confers Private Right Of Action
WASHINGTON, D.C — The U.S. Supreme Court on May 2 granted a petition for writ of certiorari filed by a rehabilitation facility, its owner and management company seeking review of the Seventh Circuit U.S. Court of Appeals’ ruling that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents.
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April 28, 2022
Tax Injunction Act Deprives Federal Court Of Jurisdiction In Suit Over WA Cares
SEATTLE — Dismissing a putative class challenge to Washington’s new public state-sponsored long-term care insurance program without prejudice for lack of jurisdiction, a Washington federal judge concluded in an April 21 order that the program is not governed or preempted by the Employee Retirement Income Security Act and that, pursuant to the Tax Injunction Act (TIA), any legal challenge to it “must be brought in state court.”
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April 27, 2022
2nd Circuit: Panel To Decide Nursing Home Dismissal Motion Of COVID Death Appeal
BROOKLYN, N.Y. — The Second Circuit U.S. Court of Appeals on April 12 lifted the stay of an appeal pending a son’s reinstatement of a state court wrongful death suit against a nursing home where his father contracted COVID-19 and died after the son filed a new state court suit instead of reinstating, ruling that the nursing home’s April 11 motion to dismiss will be heard by a three-judge panel.