Mealey's Elder Law

  • December 08, 2020

    U.S. Supreme Court Hears Arguments In Dispute Over Arbitrability

    WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 8 held telephonic oral arguments on arbitrability disputes in a case between two distributors of dental equipment, first hearing from the attorney representing petitioner Henry Schein Inc. who argued that the arbitration agreements in question delegated arbitrability to an arbitrator but that the Fifth Circuit U.S. Court of Appeals negated the delegation by deciding the question itself (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).

  • December 08, 2020

    Louisiana Panel Affirms Dismissal Of Widow’s Challenge To Husband’s Will

    GRETNA, La. — A trial court did not err in finding that a widow failed to prove by clear and convincing evidence that her husband’s adult children exercised undue influence over him and that a will executed in his final days was valid, a Louisiana appellate panel ruled Dec. 2, affirming the dismissal of the woman’s petition to nullify the will (Succession of Victor Edward Robinson Bradley, Jr., No. 20-168, La. App., 5th Cir., 2020 La. App. LEXIS 1750).

  • December 08, 2020

    1st Circuit Upholds Ruling For Credit Union In Manager’s Age Bias Suit

    BOSTON — Two initial rulings by a trial court in favor of an employee suing for age discrimination did not impact the court’s ability to later rule for the employer, a First Circuit U.S. Court of Appeals panel ruled Dec. 4 (Wanda E. Daumont-Colón v. Cooperativa de Ahorro y Crédito de Caguas, et al., No. 19-1709, 1st Cir., 2020 U.S. App. LEXIS 37873).

  • December 07, 2020

    10th Circuit:  Bank VP Failed To Show Age, Bias, Complaints Caused Selection For RIF

    DENVER — A bank vice president who was laid off during a reduction-in-force (RIF) following a merger failed to show that her age, race, gender or past statements about certain loans resulted in her selection, a 10th Circuit U.S. Court of Appeals panel ruled Dec. 2, affirming a trial court’s summary judgment ruling (Keiko Kawahara v. Guaranty Bank and Trust, No. 19-1341, 10th Cir., 2020 U.S. App. LEXIS 37651).

  • December 04, 2020

    New Jersey Plaintiffs Can Amend Consumer Fraud Claims Over Medicaid Applications

    TRENTON, N.J. — A federal judge in New Jersey on Nov. 30 granted in part a motion to dismiss filed by a service that helps elderly individuals apply for Medicaid benefits, finding that a choice-of-law provision in the company’s fee agreement allows a woman and the estate of her father to bring claims only on behalf of a proposed class of New Jersey residents and that the plaintiffs’ second amended complaint failed to sufficiently allege violations of the New Jersey Consumer Fraud Act (NJCFA) (Estate of Lester Cotton, et al. v. Senior Planning Services LLC, et al., No. 19-8921, D. N.J., 2020 U.S. Dist. LEXIS 223567).

  • December 03, 2020

    Pennsylvania Magistrate Judge Says Nursing Home Asset Buyer Is Not Its Successor

    HARRISBURG, Pa. — A Pennsylvania federal magistrate judge on Nov. 23 recommended the dismissal of claims against a company that purchased assets belonging to a nursing home accused of discharging a resident and sending him home in a three-hour Uber ride, during which he suffered a stroke and heart attack (Hamill v. Twin Cedars Senior Living Ctr., No. 3:20- 231, M.D. Pa., 2020 U.S. Dist. LEXIS 220355).

  • December 01, 2020

    5th Circuit Orders Texas Officials To Prepare Staff, Offenders COVID-19 Numbers

    NEW ORLEANS — In a Nov. 25 directive, the Fifth Circuit U.S. Court of Appeals ordered Texas officials, who are accused of failing to protect inmates housed in a Texas prison primarily for the elderly and those with health issues from COVID-19, caused by the novel coronavirus, to prepare for Dec. 3 oral arguments the numbers of staff and offenders who have tested positive for COVID-19, who have been hospitalized and who have died (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-20525, 5th Cir.).

  • December 01, 2020

    HHS Secretary Defends Ban Of Nursing Home From Federal Programs After Irma Deaths

    FORT LAUDERDALE, Fla. — The secretary of Health and Human Services on Nov. 24 defended his decision to exclude a Florida nursing home where eight residents died in the days following Hurricane Irma from all federal payer programs until the home is reinstated in Florida’s Medicaid Program, noting that the law allows such a decision, the facility has not been reinstated into the Medicaid program and the facility never sought reinstatement (Rehabilitation Center at Hollywood Hills LLC v. Alex M. Azar, No. 0:20cv61357, S.D. Fla.).

  • December 01, 2020

    Re-Adjudication Of Class’s Claims Ordered In Same-Sex Survivor Benefits Suit

    SEATTLE — The Social Security Administration (SSA) was directed in a Nov. 24 order issued by a federal judge in Washington to re-adjudicate claims by class members who were previously denied Social Security survivor benefits and enjoined from denying benefits without considering whether they would have qualified but for laws prohibiting same-sex marriage (Helen Josephine Thornton, et al. v. Commissioner of Social Security, No. 18-1409, W.D. Wash., 2020 U.S. Dist. LEXIS 220711).

  • December 01, 2020

    Panel Certifies 2 Questions On Retirees’ Health Insurance Premium Increase

    NEW YORK — The Second Circuit U.S. Court of Appeals on Nov. 6 certified two questions to the New York Court of Appeals regarding whether collective bargaining agreements (CBAs) entered into by the state of New York and state employees’ unions created a vested right that prohibited an increase in health insurance premiums for retired employees during the retirees’ lifetimes after determining that the claims alleged against the state raise unresolved issues of state law (Danny Donohue, et al. v. Andrew Cuomo et al., No. 18-3193, 2nd Cir.).

  • November 30, 2020

    Location Where Man Died Has Probate Jurisdiction, Split Oklahoma High Court Says

    OKLAHOMA CITY — A 5-3 Oklahoma Supreme Court on Nov. 24 overturned a trial court’s ruling denying a daughter’s motion to transfer a probate proceeding to the county where her father died, finding that the state’s probate jurisdiction statute highly prioritizes the location where the decedent lived and died (Dorothy Fulks v. Tammy McPherson, No. 118314, Okla. Sup., 2020 Okla. LEXIS 102).

  • November 30, 2020

    6th Circuit: No Age Bias Where Candidate Lacked Job Qualifications

    CINCINNATI — An employer can’t be found to have committed age discrimination where a job applicant lacked the qualifications for a position, a Sixth Circuit U.S. Court of Appeals panel ruled Nov. 12 (Michael Flowers v. WestRock Services, Inc., No. 20-1230, 6th Cir., 2020 U.S. App. LEXIS 35566).

  • November 25, 2020

    California Panel:  Deceased Care Facility Resident’s Claims Must Be Arbitrated

    SAN DIEGO — Because a woman signed an arbitration agreement as an agent of her husband when he entered a residential care facility, his claims for elder abuse and wrongful death must be arbitrated, even though the widow’s individual wrongful death claim is not subject to arbitration, a California appellate court held Nov. 20, partially reversing a trial court’s ruling (James E. Gibbons, et al. v. Silverado Senior Living Management, Inc., No. D076703, Calif. App., 4th Dist., 2020 Cal. App. Unpub. LEXIS 7669).

  • November 24, 2020

    California High Court Denies Review Of Nursing Home Arbitration Case

    SACRAMENTO, Calif. — The California Supreme Court on Nov. 18 denied a petition to review lower court rulings that family members serving as temporary conservators of an older woman’s person lacked the power to bind her to an arbitration agreement included in the paperwork they signed admitting her to a senior living facility (Diane Holley, et al. v. Silverado Senior Living Management, Inc., et al., No. S264488, Calif. Sup., 2020 Cal. LEXIS 8038).

  • November 23, 2020

    Pennsylvania Panel Upholds Denial Of Nursing Home’s Request To Compel Arbitration

    HARRISBURG, Pa. — A Pennsylvania Superior Court panel on Nov. 18 affirmed a ruling denying a nursing home’s request to compel arbitration of an estate’s allegations of negligence, finding that the facility failed to prove that the estate had the authority to execute a voluntary arbitration agreement that was included in admissions paperwork that was signed when the man was discharged (Hattie D. Lovett v. HCR ManorCare Inc., et al., No. 564 EDA 2020, 2020 Pa. Super. LEXIS 3585).

  • November 23, 2020

    Home Health Agency, Executives To Pay $5.8M To Resolve Medicare Billing Suits

    WASHINGTON, D.C. — The U.S. Department of Justice announced Nov. 20 that a home health care agency and two of its executives agreed to pay $5.8 million to resolve allegations brought by former employees under the qui tam provisions of the False Claims Act (FCA), in two lawsuits in federal court in Florida accusing the defendants of engaging in a scheme to fraudulently bill Medicare for unnecessary medical treatments to elderly patients to avoid the government insurer’s low utilization payment adjustment (LUPA).

  • November 19, 2020

    California Panel Affirms Denial Of Arbitration In Nursing Home Negligence Case

    LOS ANGELES — A trial court correctly applied the rule in Roldan v. Callahan & Blaine in ordering a nursing home to pay the full costs of arbitrating a negligence and elder abuse action against it or have its petition to compel arbitration denied, a California appellate panel held Nov. 16, agreeing with the lower court that the plaintiff could not afford to pay the costs of the arbitration under a fee-splitting provision in the agreement (Simon Butler v. KSM Healthcare, Inc., No. B302991, Calif. App., 2nd Dist., Div. 3, 2020 Cal. App. Unpub. LEXIS 7527).

  • November 19, 2020

    In New York, Xerox Accused By Retirees Of Violating ERISA

    BUFFALO, N.Y. — In a purported class complaint filed Nov. 16, former employees of Xerox Corp. maintain the company ran afoul of the Employee Retirement Income Security Act when it recently enacted a change to its enhanced early retirement program (ERP) that requires retirees to contribute to their medical and dental benefits (Paul Vollmer, et al. v. Xerox Corporation, et al., No. 20-6979, W.D. N.Y.).

  • November 17, 2020

    Elderly Sex Assault Inmate Loses Bid For Early Release Due To Pandemic

    ABERDEEN, S.D. — A 74-year-old Native American with a long history of sexually molesting teenage girls, including his granddaughter and stepdaughter, is not entitled to a compassionate release from prison due to the rapidly expanding COVID-19 pandemic because he is still a danger to society and will be safer in custody than in home confinement in South Dakota, which has the second highest per capita cases of the disease in the country, a federal judge in that state ruled Nov. 13 (United States v. William T. Carter, No. 03-cr-30041, D. S.D., 2020 U.S. Dist. LEXIS 214129).

  • November 17, 2020

    New York Panel Revives Negligence, Health Law Claims Against Nursing Home Operators

    ROCHESTER, N.Y. — A New York appellate panel on Nov. 13 reinstated claims of negligence and state Public Health Law violations against the owners and operators of a nursing home, finding that the administrator of a deceased resident’s estate adequately stated the claims under the theory of vicarious liability (Kevin M. Cunningham v. Mary Agnes Manor Management, L.L.C., et al., No. 392 CA 19-1231, N.Y. Sup., App. Div., 4th Dept., 2020 N.Y. App. Div. LEXIS 6838).

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