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Mealey's Elder Law

October 23, 2020
Ohio Panel Affirms That Decedent Had Mental Capacity To Designate IRA Beneficiary

CINCINNATI — A trial court correctly applied the test for testamentary capacity to determine whether a woman with dementia had the mental capacity to designate a beneficiary for her individual retirement account, an Ohio appellate panel ruled Oct. 21, affirming the lower court’s grant of judgment in favor of her son (Kimberly Webb v. The Betty S. Anderson Children Trust, et al., No. C-190600, Ohio App., 1st Dist., 2020 Ohio App. LEXIS 3810).
October 22, 2020
Panel: Hurricane-Based Claims Against Florida Nursing Home Must Be Arbitrated

WEST PALM BEACH, Fla. — A resident’s tort claims against a Florida nursing home related to injuries she sustained when the facility lost power to its air conditioning units during Hurricane Irma must be arbitrated, a state appellate panel affirmed Oct. 21, finding that the woman’s claims “relate to” the facility’s agreement to provide her with care and nursing services (Christine Cooper v. Rehabilitation Center at Hollywood Hills LLC, et al., No. 4D20-163, Fla. App., 4th Dist., 2020 Fla. App. LEXIS 14945).
October 15, 2020
Family’s Claim That Man Not Competent To Enter Marriage Dismissed; Will Affirmed

HELENA, Mont. — The Montana Supreme Court on Sept. 22 ruled that a woman did not exceed her authority as power of attorney for her late husband and that he was mentally competent when he entered into the marriage the day before he died, upholding a lower court’s decision to confirm and admit to probate the decedent’s will and to appoint the wife as representative of the estate (In Re: Daniel Cook, No. 19-0525, Mont. Sup., 2020 Mont. LEXIS 2345).
October 15, 2020
Rehearing Denied In Pension Reduction Case As Employer Files For Bankruptcy

SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel on Oct. 13 denied a marine painting and sandblasting company’s petition for rehearing after a split panel ruled that its reduction of pension payments without bargaining violated the National Labor Relations Act (NLRA) and, on the same day, that the company filed notice of a pending Chapter 11 case (Delta Sandblasting Company, Inc. v. National Labor Relations Board, No. 18-73097, 9th Cir., 2020 U.S. App. LEXIS 32272).
October 15, 2020
Oklahoma High Court Rules Against Estranged Wife In Burial Dispute

OKLAHOMA CITY — In an Oct. 13 ruling, the Oklahoma Supreme Court upheld the denial by a trial court of an estranged wife’s request for a temporary restraining order (TRO) barring her children from assuming control of her late husband’s burial (Dayna Foresee v. Jeremy Foresee, et al., No. 118599, Okla. Sup., 2020 Okla. LEXIS 93).
October 14, 2020
Remand Of COVID-19 Death Suit Against Nursing Home, Doctor Appealed

LOS ANGELES — A nursing home, its owner and a doctor on Oct. 9 filed notices alerting a California federal court that they are appealing to the Ninth Circuit U.S. Court of Appeals the court’s order remanding a COVID-19 wrongful death and negligence suit against them to state court (Emma Martin, et al. v. Serrano Post Acute LLC, et al., No. 20-5937, C.D. Calif.).
October 14, 2020
Dental Product Company: No Delegation Means Court Decides Arbitrability

WASHINGTON, D.C. — An arbitration clause containing no delegation of gateway questions to arbitrator means a court, not an arbitrator, decides arbitrability, Archer and White Sales Inc., a dental product company, argues in its respondent brief filed Oct. 13 in the U.S. Supreme Court, adding that incorporation of American Arbitration Association (AAA) rules doesn’t change anything (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).
October 14, 2020
Briefing Stayed On Nursing Home’s Motion To Dismiss COVID-19 Wrongful Death Suit

FRESNO, Calif. — A federal judge in California in an Oct. 9 text-only order stayed briefing on a nursing home’s motion to dismiss a wrongful death suit against it until he has ruled on the plaintiffs’ motion to remand the case, noting the “considerable overlap” of the motions, specifically, that both “address the question of the extent to which plaintiffs' state law claims of elder abuse and negligence implicate the federal Public Readiness and Emergency Preparedness Act (‘PREP Act’)” (Jaime Gonzalez, et al. v. Redwood Springs Healthcare Center, et al., No. 20-1260, E.D. Calif.).
October 14, 2020
5th Circuit Stays Injunction In Inmates’ COVID-19 Response Suit

NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Oct. 13 granted the Texas Department of Criminal Justice’s (TDCJ) emergency motion to stay a permanent injunction that had been scheduled to take effect Oct. 14 following a district court’s findings in a class complaint that insufficient actions were taken to protect inmates housed in a Texas prison primarily for elderly individuals and those with health issues from the novel coronavirus (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-20525, 5th Cir., 2020 U.S. App. LEXIS 32325).
October 12, 2020
VA Pharmacist Seeks Remand Of Retaliatory Hostile Environment Claim

ATLANTA — The 11th Circuit U.S. Court of Appeals should hold that a Title VII of the Civil Rights Act of 1964 violation may be established where a personnel action is tainted by retaliation even without a but-for showing and should remand a retaliatory hostile work environment claim for reconsideration in light of an intervening decision in Monaghan v. Worldpay US, Inc., a Veterans Affairs pharmacist argues in her Oct. 8 supplemental opening brief following the court’s grant of rehearing (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).
October 12, 2020
OSHA Announces Nearly $1M In Coronavirus Violations

WASHINGTON, D.C. — The U.S. Department of Labor’s Occupational Safety and Health Administration announced Oct. 9 that it has cited 62 establishments due to violations related to the novel coronavirus since the start of the pandemic and has proposed penalties totaling $913,133.
October 12, 2020
Age, Sex Discrimination Claims Over Facebook Advertisements Dismissed

SAN FRANCISCO — A putative class complaint alleging age and gender discrimination by Facebook Inc. in the purported exclusion of financial services advertisements from female and older users of the social network was dismissed Oct. 2, with a California federal magistrate judge finding that the lead plaintiff failed to plead the necessary injury-in-fact to establish standing under Article III of the U.S. Constitution (Neuhtah Opiotennione v. Facebook Inc., No. 19-7185, N.D. Calif., 2020 U.S. Dist. LEXIS 184367).
October 12, 2020
EEOC Seeks Comments On Changes To Conciliation Process

WASHINGTON, D.C. — The Equal Employment Opportunity Commission on Oct. 9 published a notice of proposed rule-making (NPRM) to outline steps taken during the conciliation process in light of the U.S. Supreme Court’s ruling in Mach Mining, LLC v. EEOC and asks the public to comment on the proposal within the next 30 days.
October 09, 2020
Split 7th Circuit Upholds Social Security Reduction For Dual Citizens Class

CHICAGO — Work performed in Canada on which no Social Security taxes are paid is not “employment” as defined in Section 410(a)(C) of the Social Security Act, and the totalization agreement between the United States and Canada doesn’t affect the application of the Windfall Elimination Provision (WEP) to Social Security benefits being collected by a class of dual citizens who are also receiving benefits under equivalent Canadian plans, a split Seventh Circuit U.S. Court of Appeals panel ruled Oct. 5 (Lorraine Beeler, et al. v. Andrew M. Saul, et al., No. 19-2099, 7th Cir., 2020 U.S. App. LEXIS 31614).
October 08, 2020
Panel Reverses Dismissal Of Discovery Complaint Over Potential Negligence Claims

BOSTON — An assisted living facility resident was entitled to pursue a complaint for discovery to explore the viability of potential negligence claims over a fall that she experienced, a Massachusetts appellate panel ruled Oct. 5, reversing a lower court’s dismissal and deeming the matter not moot under the statute of limitations or in light of the resident’s subsequent death (Kenneth F. Atchue v. Benchmark Senior Living LLC, et al., No. 19-P-125, Mass App., 2020 Mass. App. LEXIS 153).
October 05, 2020
U.S. Supreme Court Won't Hear Vested Lifetime Benefits Appeal

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 denied a petition for a writ of certiorari filed by employers challenging a Seventh Circuit U.S. Court of Appeals' order to continue providing health insurance benefits for retirees and their families (Signode Industrial Group LLC, et al. v. Harold Stone, et al., No. 19-1334, U.S. Sup., 2020 U.S. LEXIS 4074).
October 05, 2020
U.S. High Court Won't Review Revocation Of Florida Rehabilitation Center's License

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 declined to review whether a Florida agency's decision to revoke the license of a rehabilitation center where eight residents died in the wake of Hurricane Irma violated due process (Rehabilitation Center at Hollywood Hills LLC v. Florida Agency for Health Care Administration, No. 19-1400, U.S. Sup.).
October 02, 2020
D.C. Federal Judge Dismisses Dispute Over Windfall Application

WASHINGTON, D.C. — In a Sept. 29 holding, a District of Columbia federal judge granted the Social Security Administration dismissal of allegations that it unlawfully applied the Windfall Elimination Provision (WEP) to the Social Security benefits of a group of dual citizens (William Turnbull, et al. v. Nancy Berryhill, No. 16-1750, D. D.C., 2020 U.S. Dist. LEXIS 178775).
October 01, 2020
Facility Operators Tell 7th Circuit FNHRA Doesn't Confer Private Right Of Action

CHICAGO — A federal judge in Indiana did not err in finding that the Federal Nursing Home Reform Act (FNHRA) does not confer a private right of action and, therefore, does not support a nursing home resident's claim for violation of his civil rights, the facility, its owner and the company that manages and operates it tell the Seventh Circuit U.S. Court of Appeals in a Sept. 29 appellee brief (Gorgi Talevski v. Health and Hospital Corporation of Marion County, et al., No. 20-1664, 7th Cir.).
October 01, 2020
Tennessee Appeals Court Affirms That Nursing Home Can't Force Arbitration

JACKSON, Tenn. — Finding no evidence that the daughter of a nursing home resident had "actual or apparent authority" to sign an arbitration agreement, a Tennessee appeals court on Sept. 17 affirmed a lower court's decision to deny the facility's motion to compel arbitration in a wrongful death suit (Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV, Tenn. App., 2020 Tenn. App. LEXIS 418).