Mealey's Elder Law
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February 28, 2022
9th Circuit Affirms COVID-19 Long-Term Care Death Action Properly Remanded
PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel in a Feb. 25 unpublished memorandum affirmed the remand to state court of a COVID-19-related wrongful death case against a long-term care facility, its owner and its staff physician, finding that the facility was not acting under the direction of a federal officer, that the family’s claims are not completely preempted by the Public Readiness and Emergency Preparedness Act (PREP Act) and that there was no embedded federal question.
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February 25, 2022
Judge Denies Dismissal For Failure To Train In Nursing Home Wrongful Death Suit
PHILADELPHIA — An estate administratrix’s wrongful death action alleging violations of the Federal Nursing Home Reform Act (FNHRA), “including for failing to maintain adequate care plans,” suffices to infer that a nursing home’s conduct involved “reckless or callous indifference” to nursing home residents’ rights, a Pennsylvania federal judge held Feb. 16, denying the nursing home’s motion to strike allegations related to punitive damages and motion to dismiss “under a failure to train theory” but granting the motion to dismiss FNHRA claims under the inadequate staffing theory.
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February 25, 2022
Garcia Family Submits Saldana Opinion In 9th Circuit PREP Act Appeal
SAN FRANCISCO — The family whose COVID-19-related wrongful death suit against a senior living facility was dismissed by a federal judge who found their state claims preempted by the Public Readiness and Emergency Preparedness (PREP) Act submitted a citation of supplemental authority in their appeal to the Ninth Circuit U.S. Court of Appeals on Feb. 23, alerting the court to a Feb. 22 Ninth Circuit opinion rejecting federal jurisdiction in a similar case.
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February 25, 2022
1 Claim Survives Summary Judgment In Premium Dispute Over Lifetime Benefits
ROCHESTER, N.Y. — Addressing dueling motions for summary judgment in a dispute over premium payments for retirees’ medical and dental care, a New York federal judge on Feb. 14 dismissed a breach of fiduciary duty claim as being time-barred but ruled that the denial of benefits claim is not barred and genuine issues of material fact remain as to it.
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February 23, 2022
9th Circuit Finds Federal Jurisdiction Lacking In COVID Nursing Home Death Suit
PASADENA, Calif. — A wrongful death suit filed by the family of a man who died in a nursing home after contracting COVID-19 belongs in California state court, the Ninth Circuit U.S. Court of Appeals affirmed Feb. 22, finding that the nursing home was not acting under the direction of a federal officer, that the family’s claims are not completely preempted by the Public Readiness and Emergency Preparedness Act (PREP Act) and that a federal district court had no jurisdiction under the embedded federal question doctrine.
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February 16, 2022
Long-Term Care Insurer’s Counterclaims To Proceed In Insured’s Bad Faith Suit
LOS ANGELES — A California federal judge on Jan. 12 denied an insured’s motion to dismiss a long-term care insurer’s declaratory judgment counterclaims in a breach of contract and bad faith suit, rejecting the insured’s argument that the counterclaims cannot resolve the controversy at issue in the insured’s suit.
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February 16, 2022
11th Circuit: ‘Medically Accepted Indication’ Covers Medicare Drug Off-Label Use
ATLANTA — “[M]edically accepted indication” for off-label use of a Medicare Part D drug includes “off-label uses for which an approved medical compendium tends to show or helps prove the efficacy and safety of the prescribed off-label use,” the 11th Circuit U.S. Court of Appeals held Feb. 11, vacating a district court’s summary judgment in favor of the secretary of the U.S. Department of Health and Human Services where drug coverage was denied to a Medicare Part D beneficiary and remanding with instructions to enter judgment for the beneficiary.
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February 16, 2022
Judge Remands Nursing Home Class Action Breach Of Contract Suit To State Court
BOSTON — The home state exception requiring a federal district court to decline jurisdiction over a putative class action applies to a breach of contract putative class action against a corporation owning assisted living facilities, a Massachusetts federal judge held Feb. 10, granting an assisted living resident’s motion to remand to state court.
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February 12, 2022
Medicare Beneficiary Again Appeals Coverage Review Action To 11th Circuit
BIRMINGHAM, Ala. — A Medicare beneficiary on Jan. 10 indicated that he intends to appeal to the 11th Circuit U.S. Court of Appeals for the second time a federal judge in Alabama’s ruling dispensing with his suit seeking judicial review by the secretary of Health and Human Services of an administrative law judge’s denial of coverage for a cancer therapy; the judge dismissed the suit after finding, on remand from the 11th Circuit, that the beneficiary lacked standing under Article III of the U.S. Constitution.
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February 12, 2022
Split Louisiana High Court: Judge Who Turned 70 Before Beginning Term Can Remain
NEW ORLEANS — Rejecting a recommendation by the state Judiciary Commission, a divided Louisiana Supreme Court on Jan. 28 ruled that a city court judge who exceeded the mandatory retirement age when she began her term can remain in office, citing conditions caused by the COVID-19 pandemic and language in the state constitution that allows for the high court’s discretion.
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February 12, 2022
Illinois Panel Publishes Ruling Affirming Arbitration Proper Against Nursing Home
SPRINGFIELD, Ill. — An Illinois appellate panel on Jan. 28 issued a published version of its Jan. 5 ruling affirming an order compelling arbitration for negligence and Illinois Nursing Home Care Act violation claims in a negligence and wrongful death suit filed by the representative of the estate of a former nursing home resident against a nursing home, finding that the arbitration clause was not procedurally and substantively unenforceable, that the representative had the authority to arbitrate on the deceased’s behalf and that the representative is “bound” to arbitrate claims brought pursuant to the Illinois Survival Act.
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February 11, 2022
California Panel: Facility Can’t Compel Arbitration In Wrongful Death Action
SACRAMENTO, Calif. — A residential care facility seeking to compel arbitration in a wrongful death, fraud and elder abuse action failed to demonstrate that a deceased resident’s son had the authority to sign an arbitration agreement on his father’s behalf, a California appellate panel held Feb. 8, affirming the trial court’s denial of a petition to compel arbitration.
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February 11, 2022
Changes To WA Cares Did Not Erase Standing Or Render Claims Unripe, Plaintiffs Say
SEATTLE — Changes to Washington’s new public state-sponsored long-term care insurance program did not erase their standing or render claims asserted in a class action unripe, plaintiffs tell a Washington federal court in Feb. 9 opposition to defendants’ motion to dismiss.
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February 10, 2022
2nd Circuit Affirms: Collective Action Waiver Is Valid Under ADEA
NEW YORK — Because collective action waivers address procedural rights, not substantive rights, they do not require special disclosures to be “‘knowing and voluntary’” under the Age Discrimination in Employment Act (ADEA), the Second Circuit U.S. Court of Appeals ruled Jan. 20 in affirming dismissal of a suit filed by four terminated IBM employees who claimed that the waivers they signed were invalid.
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February 10, 2022
Panel Finds No Custodial Relationship Between Home- Health Provider And Decedent
SACRAMENTO, Calif. — A trial court erred in denying a home-health provider’s summary judgment motion after a successor in interest failed to demonstrate a triable issue of fact related to the custodial relationship between the provider and a decedent in an elder abuse action, a California appellate court held Jan. 26, directing the trial court to vacate its order and grant the provider’s summary judgment motion.
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February 10, 2022
6th Circuit Reverses Summary Judgment For Employer In Age Discrimination Claim
CINCINNATI — A former employee alleging age discrimination when his employer failed to hire him for a remote position satisfied the burden to show that there is enough evidence to create a dispute regarding age discrimination, a split Sixth Circuit U.S. Court of Appeals held Jan. 24, reversing a district court’s grant of summary judgment to the former employer.
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February 10, 2022
7th Circuit Affirms Age Bias Suit Dismissal, Cautions About Pleading Standard Used
CHICAGO — A trial court properly dismissed a former employee’s claims of age discrimination and civil rights violations for unlawful discharge because she did not show a link between her former employer’s company policy related to terminations and her membership in a protected class, the Seventh Circuit U.S. Court of Appeals held Jan. 19 while sounding “a soft note of concern” that the trial court applied “a pleading standard beyond that imposed by Rule 8(a) of the Federal Rules of Civil Procedure and Supreme Court precedent.”
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February 08, 2022
3rd Circuit Won’t Rehear Ruling That PREP Act Doesn’t Preempt COVID Claims
PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Feb. 7 denied rehearing and rehearing en banc of an October panel decision that state law COVID-19-related negligence and wrongful death claims against two rehabilitation facilities are not completely preempted by the Public Readiness and Emergency Preparedness (PREP) Act.
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February 08, 2022
Scheduling Order Issued In Insufficient Assisted Living Staffing Class Suit
SANTA ANA, Calif. — A federal judge in California on Feb. 7 issued an order granting a joint stipulation to amend the scheduling order in a class lawsuit accusing the owners of a chain of assisted living facilities of failing to sufficiently staff their facilities and deeming the defendants’ motion for summary judgment withdrawn.
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February 08, 2022
Amici Call Insurer’s Scheme Shifting Dialysis Costs To Medicare Discriminatory
WASHINGTON, D.C. — Petitioners’ “backdoor” scheme shifting the cost of dialysis treatments to Medicare threatens a decades-long balance that splits those costs between the program and private insurance that ensures that a robust network of providers exists, and its defenses cannot be squared with either the law or the reality of the system, six amici told the U.S. Supreme Court in urging affirmance Jan. 26.