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Mealey's Elder Law

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).
November 17, 2020
Split U.S. High Court Denies Stay Application In Inmates’ COVID-19 Response Suit

WASHINGTON, D.C. — A divided U.S. Supreme Court on Nov. 16 denied an application by inmates housed in a Texas geriatric prison seeking to vacate a stay of a permanent injunction in their class complaint alleging that insufficient actions were taken to protect them from the novel coronavirus while an appeal proceeds (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20A70, U.S. Sup., 2020 U.S. LEXIS 5612).
November 17, 2020
Texas Agency, Officials Argue Against Injunction In Inmates’ COVID-19 Response Suit

NEW ORLEANS — A trial court improperly entered a permanent injunction in a class complaint by inmates housed in a Texas prison primarily for elderly and those with health issues who allege that insufficient actions were taken to protect them from the novel coronavirus as it has already been shown that “extensive and evolving measures” have been implemented that “show the opposite of deliberate indifference,” the Texas Department of Criminal Justice (TDCJ), its executive director and the warden argue in an appellant brief filed Nov. 13 in the Fifth Circuit U.S. Court of Appeals (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-20525, 5th Cir.).
November 16, 2020
Social Security Commissioner Given Until Dec. 14 To Respond To High Court Petition

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 18 granted Social Security Commissioner Andrew Saul’s request to extend the deadline for responding to a former dual-service technician’s petition seeking a writ of certiorari for review of a Sixth Circuit’s ruling that sustained a federal judge in Michigan’s application of the Windfall Elimination Provision (WEP) to the Social Security Administration (SSA) (David Babcock v. Andrew M. Saul, No. 20-480, U.S. Sup.).
November 13, 2020
Idaho Supreme Court Affirms Final Accounting, Distribution Of Estate

BOISE, Idaho — The Idaho Supreme Court on Nov. 10 affirmed a district court’s decision affirming a magistrate court approval of the final accounting and proposed distribution of an estate, finding that the magistrate court’s findings were supported by substantial evidence and that errors made during the intermediate appeal were harmless; however, the high court vacated the district court’s decision to award attorney fees on appeal (In the Matter of the Estate of Eric Milo Hirning, No. 47449, Idaho Sup., 2020 Ida. LEXIS 224).
November 13, 2020
PBGC Pushes Back On Rehearing Request By Pension Plan Participants

CINCINNATI — In a Nov. 10 response to a recent request for rehearing or rehearing en banc, the Pension Benefit Guaranty Corp. (PBGC) tells the Sixth Circuit U.S. Court of Appeals that contrary to assertions by the petitioners, the panel’s September finding of no due process violation in the termination of a salaried pension plan does not conflict with Nachman Corp. v. PBGC, 446 U.S. 359 (1980) (Dennis Black, et al. v. Pension Benefit Guaranty Corp., No. 19-1419, 6th Cir.).
November 13, 2020
Judge Overrules Objections To Settlement Agreement In Suit Over Premium Increases

RICHMOND, Va. — A federal judge in Virginia on Nov. 5 overruled individual class members’ objections to plaintiffs’ motion for final approval of a settlement of their class action alleging that their long-term care insurer failed to disclose information about its policies and its policies’ premium increases, finding that “if the most conservative and the most liberal assumptions are disregarded,” the cash damage payments’ estimated value would be $130 million (Jerome Skochin, et al. v. Genworth Life Insurance Co., et al., No. 19-49, E.D. Va., 2020 U.S. Dist. LEXIS 207925).
November 12, 2020
6th Circuit Reverses Fine For Nursing Facility’s Failure To Consider Staff Increase

CINCINNATI — A split Sixth Circuit U.S. Court of Appeals panel on Oct. 27 ruled that a penalty imposed by the Centers for Medicare & Medicaid Services (CMS) against a nursing facility for failure to consider increasing staff after patient falls increased was arbitrary and capricious because the facility was given no fair notice that it must make such considerations (Golden Living Center – Mountain View v. Secretary of Health and Human Services, et al., No. 19-3755, 6th Cir., 2020 U.S. App. LEXIS 33997).
November 12, 2020
Illinois Panel Affirms Denial Of Father’s Petition To End Grandparent Visitation

OTTAWA, Ill. — A divided Illinois panel on Nov. 6 affirmed a lower court’s dismissal of a father’s petition to terminate visitation between his minor daughter and her grandmother, finding that the grandmother met her burden of demonstrating that termination of visitation would cause the child undue harm and that the trial court adequately weighed the presumption in favor of a fit parent’s decisions regarding grandparent visitation (Przemyslaw W. v. Nicole Antionette A., et al., No. 3-19-0734, Ill. App. 3rd Dist., 2020 Ill. App. Unpub. LEXIS 1879).
November 11, 2020
New York Justices 70 And Over Sue Over Termination Of Their Services

RIVERHEAD, N.Y. — Four New York justices, all 70 or older, and one attorney filed a complaint in a New York court on Nov. 5, alleging that the termination of their services, allegedly due to budgetary constraints, constitutes age discrimination and violation of the state constitution (Hon. Ellen Gesmer, et al. v. The Administrative Board of the New York State Unified Court System, et al., No. 616980/2020, N.Y. Sup., Suffolk Co.).
November 11, 2020
Federal Judge Denies Health Care Proxies TRO To Enjoin End Of Life-Sustaining Care

SYRACUSE, N.Y. — A federal judge in New York on Nov. 5 denied health care proxies’ motion for a temporary restraining order (TRO) to enjoin a hospital from removing a brain-dead woman from a ventilator and requiring it to provide the woman with additional life-sustaining care, finding that the plaintiffs have not shown a serious question on the merits on any of their claims (Carol Thomas, et al. v. Mohawk Valley Health System, et al., No. 20-1347, N.D. N.Y., 2020 U.S. Dist. LEXIS 206934).
November 11, 2020
8th Circuit Finds Long-Time Worker Failed To Show Age Bias

ST. PAUL, Minn. — An employee of more than 40 years who was fired after allegedly making several mistakes failed to show that she was discriminated against due to her age or in retaliation for alleging age bias, an Eighth Circuit U.S. Court of Appeals panel ruled Oct. 23 (Julie McKey v. U.S. Bank National Association, No. 19-2638, 8th Cir., 2020 U.S. App. LEXIS 33398).