Mealey's Elder Law
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June 04, 2021
Joint Petition Seeks High Court Review Of Medicare-Dialysis Coverage Case
SAN FRANCISCO — The U.S. Supreme Court should accept review of a ruling reinstating a medical provider’s claims and reject its holding that uniform reimbursement for dialysis treatments runs afoul of the Medicare Secondary Payor Act (MSPA) under a disparate impact analysis, an insurer and related entities tell the court in a May 21 joint petition.
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June 04, 2021
1st Circuit Revives Age Bias, Wrongful Termination Suit By Puerto Rico Office Head
BOSTON — The First Circuit U.S. Court of Appeals on May 28 vacated and remanded a summary judgment ruling for a heating and air conditioning system company in an age discrimination and wrongful termination suit filed by the head of the company’s Puerto Rico office, holding that the executive submitted adequate direct evidence of age bias. In remanding for further proceedings, it also reversed the exclusion of two financial documents from the summary judgment record.
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June 04, 2021
Panel: LLC Membership Transfer Not Enforceable Under Maryland Statute
ANNAPOLIS, Md. — A provision in a Maryland limited liability company operating agreement that purports to transfer a member’s economic interest at death is not enforceable because it was not executed with the formalities required in Maryland for the execution of a will, the Maryland Court of Special Appeals ruled May 26, holding that the membership interest is an asset of the decedent’s estate and reversing and remanding a lower court’s judgment.
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June 04, 2021
Rehab Facility Appellants Say BP Supports 3rd Circuit Review Of COVID Remand Order
PHILADELPHIA — The operators of two rehabilitation facilities that have asked the Third Circuit U.S. Court of Appeals to reverse a lower court’s order remanding two putative COVID-19-related negligence and wrongful death suits against them to New Jersey state court tell the appellate court in a May 21 letter that the U.S. Supreme Court’s May 17 decision in BP P. L.C., et al. v. Mayor and City Council of Baltimore supports their argument that the court “has jurisdiction to consider all of appellants’ grounds for removal that were raised in addition to the federal officer removal statute.”
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June 03, 2021
Assisted Living Facility Appeals Remand Order In COVID-19 Death Suit To 11th Circuit
MIAMI — Citing a recent U.S. Supreme Court decision on grounds for removal in BP PLC., et al. v. Mayor and City Council of Baltimore, an assisted living facility and its operator on May 24 filed a notice of appeal in the 11th Circuit U.S. Court of Appeals, challenging a Florida federal judge’s order remanding a COVID-19 wrongful death action to state court.
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June 03, 2021
Michigan Appeals Court: Retired Firefighter Unable To Challenge Pension Ruling
LANSING, Mich. — The Michigan Court of Appeals on May 20 affirmed a lower court ruling that a retired Flint, Mich., firefighter was unable to challenge a retirement services company’s refusal to recalculate his pension after an emergency manager took control of the city’s finances in 2012.
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June 03, 2021
Dismissal Granted In Suit Alleging Facility’s COVID-19 Response Violated ADA, RA
BROOKLYN, N.Y. — Residents of an assisted living facility who allege that its response to the COVID-19 pandemic violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) did not sufficiently plead that they have been discriminated against because of their disabilities and failed “to articulate a nexus between the disabilities and the reasonable accommodations requested,” a New Jersey federal judge ruled May 12, granting the facility’s motion to dismiss the putative class suit.
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June 01, 2021
Judge Stays Suit Pending Professional Liability Insurer’s Appeal Of Defense Duty
WILMINGTON, Del. — A federal judge in North Carolina on May 26 ordered as final and appealable his ruling that a professional liability insurer has a duty to defend against an underlying class action alleging that a senior living facility and its owners breached their contractual duties to provide adequate staffing and personal care, staying the separate claims for indemnity, breach of contract, unfair claims practices/trade practices and breach of the covenant of good faith pending consideration of the insurer’s appeal to the Fourth Circuit U.S. Court of Appeals.
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May 28, 2021
COVID-19 Nursing Home Death Action Properly Remanded, Family Tells 9th Circuit
SAN FRANCISCO — The family of a man who died in a long-term care facility during the COVID-19 pandemic argues to the Ninth Circuit U.S. Court of Appeals in a May 26 brief that a federal California judge correctly remanded its wrongful death action to state court because the facility’s failure to take action to control the spread of the virus was not at the specific direction of the federal government.
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May 27, 2021
Businessman Asks To Set Aside More Than $2M Judgment For Elder Fraud, UCL Claims
SACRAMENTO, Calif. — A businessman moved in a California federal court on May 24 to set aside a default judgment against him for more than $2 million in damages and attorney fees for allegedly defrauding an elderly couple and violating California’s unfair competition law (UCL), arguing that he never received a summons that was served at the street address of a co-working space in Florida.
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May 26, 2021
DOJ: Skilled Nursing Facilities Operator To Pay $11.2M To Settle Billing Suits
WASHINGTON, D.C. — The U.S. Department of Justice (DOJ) announced May 21 that SavaSeniorCare LLC and its affiliates have agreed to pay at least $11.2 million to resolve allegations in four False Claims Act lawsuits that their skilled nursing facilities (SNFs) billed Medicare for rehabilitation services that were not medically necessary and that they submitted bills for services that were allegedly grossly substandard.
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May 25, 2021
Retired Dual-Status Technician Asks High Court To Reverse Social Security Reduction
WASHINGTON, D.C. — A retired National Guard dual-status military technician asks the U.S. Supreme Court in his May 20 petitioner’s brief to reverse a federal appeals court ruling that his Social Security retirement benefits should be reduced by his civil service pension because a uniformed-services exception does not apply in a case where an individual was a member of a uniformed service while working in noncovered employment.
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May 21, 2021
‘Some’ Means 1 Witness Is OK To Verify Found Will, State Appeals Court Rules 5-4
JACKSON, Miss. — Authenticating the signatures of the testator and one subscribing witness is sufficient evidence to admit a holographic will to probate if no subscribing witnesses can be produced, the Mississippi Court of Appeals said in a 5-4 decision on May 18, reversing a chancery court’s dismissal of the case and remanding for further probate proceedings.
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May 21, 2021
Wife’s Power-Of-Attorney Doesn’t Let Rehab Facility Force Arbitration, Panel Says
TUCSON, Ariz. — A health care power-of-attorney provision authorized an agent to take “limited action” rather than to exercise “wholesale authority to take any legal action in relation to [the grantor’s] healthcare,” an Arizona appellate court ruled May 18 in a wrongful death case, affirming the trial court’s denial of a motion to compel arbitration for reasons including that the contested arbitration agreement was not required for admission to the rehabilitation facility that sought to enforce it.
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May 20, 2021
Panel Affirms Finding Of Bad Faith, Disinheritance Under Trust No-Contest Clause
SEATTLE — A trial court did not err in ordering a beneficiary disinherited from a trust under its no-contest clause because substantial evidence supported its conclusion that he petitioned to remove the trustee in bad faith and without probable cause, a Washington appellate court ruled May 17, finding no abuse of discretion and affirming the trial court’s judgment in denying the beneficiary’s motions to vacate and reconsider its orders.
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May 19, 2021
North Carolina Nursing Home Hit With Understaffing Class Complaint
GREENSBORO, N.C. — A North Carolina nursing home operated under a business plan that involved “severe systematic understaffing” that predated the coronavirus pandemic and led to one of the largest outbreaks once the pandemic hit, residents and members of residents’ families allege in a class complaint and a motion for class certification filed May 17 in a federal court in North Carolina.
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May 18, 2021
Panel: Court Rightly Nixed Woman’s Removal From Assisted Living Amid Pandemic
ANNAPOLIS, Md. — A lower court did not abuse its discretion by denying a daughter’s emergency motion to move her mother out of an assisted living facility during the COVID-19 pandemic because it determined that it was in the mother’s best interest to stay at the facility, the Maryland Court of Special Appeals ruled May 13 in an unreported opinion.
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May 17, 2021
Alaska High Court Rules Woman Must Answer Certain Questions At Mental Exam
ANCHORAGE, Alaska — In a man’s bid to gain guardianship of his grandmother, the Alaska Supreme Court on May 7 concluded that the woman can be compelled to answer questions during a mental examination that are designed to determine her capacity to make personal medical decisions. It reversed and remanded a trial court’s order for further proceedings.
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May 17, 2021
U.S. High Court Won’t Review Age Bias Row Raising Discovery, GDPR Issues
WASHINGTON, D.C. — The U.S. Supreme Court on May 17 denied a petition for a writ of certiorari filed by a U.S.-based company arguing that an underlying Ohio state court discovery ruling against it would cause it to violate the stringent personal privacy protections of the European Union’s General Data Protection Regulation (GDPR) and asking the high court to offer guidance as to how discovery in U.S. courts should interact with foreign privacy laws.
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May 17, 2021
Pharmacy For Long-Term Care Facilities To Pay $2.75M Over Opioid Prescriptions
ATLANTA — A federal judge in Georgia on May 5 dismissed a False Claims Act (FCA) lawsuit accusing a pharmacy services provider for long-term care facilities of violating the Controlled Substances Act (CSA) by providing opioids for patients without valid prescription after the provider agreed to pay $2.75 million to resolve the lawsuit.