Mealey's Elder Law

  • January 27, 2021

    Kentucky High Court Overrules Johnson’s Prohibition On Guardian Dissolving Marriage

    FRANKFORT, Ky. — Finding that “expanded guardian duties, coupled with a more complex elder law environment make” Johnson v. Johnson “inapplicable to the current legal environment,” the Kentucky Supreme Court on Jan. 21 unanimously overruled the case “to the extent it prohibits a guardian from initiating a dissolution action on behalf of a ward.”

  • January 26, 2021

    Minnesota High Court Affirms Rejection Of Transfer Penalty On Medicaid Recipient

    ST. PAUL, Minn. — A human services agency incorrectly imposed a transfer penalty on a disabled Medicaid recipient who transferred proceeds from the sale of a house into a pooled special needs trust because the recipient complied with statutory requirements by showing that he intended to receive valuable goods and services from the trust, the Minnesota Supreme Court concluded Jan. 20, affirming two lower court decisions.

  • January 25, 2021

    U.S. High Court Dismisses Argued Arbitration Case As Improvidently Granted

    WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 25 issued a one page per curiam opinion dismissing as improvidently granted a writ of certiorari in an already argued case concerning arbitrability disputes in a case between two distributors of dental equipment.

  • January 22, 2021

    Panel:  Massachusetts Rape Law Not Vague, Distinguishes Appropriate Medical Care

    BOSTON — Massachusetts’ rape statute is not unconstitutionally vague because it adequately distinguishes between conduct that constitutes rape and conduct that constitutes appropriate medical practice, a state appellate panel ruled Jan. 19 in affirming the conviction of a certified nurse’s assistant (CNA) for the rape of a nursing home resident with dementia and the denial of the CNA’s motion for a new trial.

  • January 22, 2021

    Footnote Didn’t Preserve Ripeness Argument, Judge Says In Dialysis Rule Challenge

    WASHINGTON, D.C. — A dialysis group challenging elimination of Medicare Advantage time-and-distance standards waived the issue of ripeness by responding only in a footnote to a different motion with the contention that its standing and ripeness arguments were the same, a federal judge in the District of Columbia said Jan. 19 in dismissing a case.

  • January 21, 2021

    California Panel Affirms Nursing Home Arbitration Agreement Not Enforceable

    SACRAMENTO, Calif. — An arbitration provision included in a nursing home residence agreement is not enforceable because it was signed by the person who held financial power of attorney (POA) for the resident and not the person who held the resident’s health care POA, a California appellate panel found Jan. 19, affirming a lower court’s denial of the nursing home’s motion to compel arbitration.

  • January 15, 2021

    Oregon Federal Judge Remands Suit Over COVID-19 Death In Nursing Home

    PORTLAND, Ore. — An Oregon federal judge on Dec. 27 agreed to remand a wrongful death suit brought by the daughter of a man who died after contracting COVID-19 in a nursing home, holding that her state law claims were not completely preempted by the federal Public Readiness and Emergency Preparedness (PREP) Act.  The judge also denied as moot the defendants’ motion to dismiss.

  • January 15, 2021

    Pension Plan Retirees Say Rehearing Still Warranted In Due Process Violation Suit

    CINCINNATI — Following the Sixth Circuit U.S. Court of Appeals’ issuance of an amended opinion on Dec. 28 to acknowledge the ruling of Nachman Corp. v. PBGC, retirees filed a supplemental memorandum on Jan. 12, arguing that rehearing en banc is 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.

  • January 13, 2021

    Massachusetts High Court: Health Care Program Not Entitled To $104,000 From Estate

    BOSTON — A state health insurance program was not entitled to reimbursement of more than $104,000 from a recipient’s estate because it filed a claim after the statutory three-year “ultimate time limit” expired, the Massachusetts Supreme Judicial Court concluded Dec. 28.

  • January 12, 2021

    On Remand, Pennsylvania Panel Again Grants New Trial In Nursing Home Negligence Case

    HARRISBURG, Pa. — On remand from the Pennsylvania Supreme Court, which in July ruled that a trial court may use its sua sponte authority to grant a new trial “only where ‘exceedingly clear error’ results in ‘manifest injustice’ of a constitutional or structural nature,” an intermediate appeals panel on Jan. 5 again affirmed the grant of a new trial in a nursing home negligence case, finding that a nurse’s testimony and a related jury instruction were improper, “misled the jury and contributed to its rendering an unfair compensatory damages verdict.”

  • January 11, 2021

    Health Plan Participants Failed To Show Any Irreparable Harm, Federal Judge Says

    ROCHESTER, N.Y. — A New York federal judge on Jan. 6 denied a motion for preliminary injunction in a dispute over premium payments for retirees’ medical and dental care after determining that the plan participants failed to demonstrate irreparable harm as a result of the company’s decision to require retirees to pay premium payments.

  • January 11, 2021

    Rehearing Sought After 5th Circuit Reinstates Age Bias Claim

    NEW ORLEANS — A health care services company filed a petition for rehearing en banc on Jan. 6, two weeks after a Fifth Circuit U.S. Court of Appeals panel held that the company’s hiring of an older replacement doesn’t negate an age bias claim by a fired social worker.

  • January 08, 2021

    Kentucky High Court: No Sovereign Immunity For In-Home Health Care Provider

    FRANKFORT, Ky. — The Kentucky Supreme Court on Dec. 17 disagreed with the decisions of a trial court judge and court of appeals panel that an area development district (ADD) accused of negligence when providing in-home care to a 93-year-old woman was entitled to summary judgment based on sovereign immunity, finding instead that the district could not face liability because it did not owe a duty of care to the woman that was equivalent to that of a medical professional.

  • January 05, 2021

    ‘End-Of-Life Doulas’ Win Injunction In California 1st Amendment Case

    SACRAMENTO, Calif. — A federal judge in California on Dec. 29 preliminarily enjoined the California Cemetery and Funeral Bureau from preventing a nonprofit organization and its volunteers from offering counseling and other services to families and loved ones of those who are dying, finding that the plaintiffs have proven that they are likely to succeed on the merits of their First Amendment claim.

  • January 05, 2021

    'Uniform Services’ Exception Does Not Apply To Army Retiree, 3rd Circuit Affirms

    PHILADELPHIA — In a precedential Dec. 22 ruling, the Third Circuit U.S. Court of Appeals weighed in on a circuit court split and affirmed a Social Security Administration (SSA) ruling that an Army National Guard dual-status technician’s retirement benefits should be reduced under the Windfall Elimination Provision (WEP) because he did not qualify for the provision’s “uniform services exception.”

  • January 05, 2021

    Kentucky High Court Says Nurse Consultant Notes Protected From Disclosure

    FRANKFORT, Ky. — The Kentucky Supreme Court on Dec. 17 overturned an appeals court’s denial of a petition filed by a skilled nursing facility that sought to block disclosure of nurse consultant reports prepared for its quality assurance performance improvement (QAPI) committee for use in a lawsuit accusing it of negligence, finding that the records are protected by the Federal Quality Assurance Privilege (FQAP), a subsection of the Federal Nursing Home Reform Act (FNHRA), because the documents are reviewed by the committee and used to render decisions and comply with the statute.

  • December 31, 2020

    Wyoming High Court Nixes Ruling Compelling Arbitration Of Wrongful Death Claim

    CHEYENNE, Wyo. — The son of a woman who allegedly died from injuries sustained while living at a skilled nursing facility had no express actual authority under her durable power of attorney for health care (DPOAHC) to sign an arbitration agreement, the Wyoming Supreme Court held Dec. 18, reversing and remanding to a trial court.

  • December 31, 2020

    Husband’s Nondisclosure Of Assets Did Not Void Trust, Says Pennsylvania High Court

    HARRISBURG, Pa. — A wife was unable to prove that her husband’s failure to disclose two Florida properties he owned — including one that housed his affair partner — constituted a material misrepresentation that fraudulently induced her to settle a family trust, a divided Pennsylvania Supreme Court concluded Dec. 22, affirming an appeals court ruling.

  • December 30, 2020

    Clinic Tells High Court Texas Advance Directives Act Provision Is Constitutional

    WASHINGTON, D.C. — A medical center that refused to provide further treatment to a terminally ill patient following a committee meeting on the ethics and medical value of continued care told the U.S. Supreme Court in a Dec. 23 reply brief that the nation’s high court needs to determine that a safe harbor provision in the state’s Advance Directives Act is constitutional and that it was not taking a state action by denying additional care to the patient (Cook Children’s Medical Center v. T.L., a minor, et al., No. 20-651, U.S. Sup.).

  • December 23, 2020

    Nursing Home Settles Indemnification Case Against Kitchen Contractor

    DETROIT — After learning that the parties had reached a settlement, a federal judge in Michigan on Dec. 22 dismissed with prejudice a breach of contract and indemnification lawsuit brought by a nursing home against a kitchen contractor following the 2012 death of a resident who ingested detergent.  The settlement came a week after the judge denied the parties’ competing summary judgment motions, finding that triable issues exist (Watermark Senior Living Retirement Communities Inc. v. Morrison Management Specialists Inc., No. 17-11886, E.D. Mich., 2020 U.S. Dist. LEXIS 234223).

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