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Mealey's Elder Law

March 16, 2023
Michigan Panel Dismisses As Moot Son’s Appeals Of Order Granting Payment To GAL

DETROIT — A Michigan appellate court dismissed as moot a son’s consolidated appeals of a probate court’s order granting the payment of fees to a court-appointed guardian ad litem (GAL) for his father, finding that because the probate court terminated the son’s conservatorship of his father, the appeals are moot.
March 15, 2023
Judgment Granted For Government In Negligence Suit Over Veteran’s Cancer Death

LEXINGTON, Ky. — A Kentucky federal judge granted the U.S. government’s motion for summary judgment in a medical negligence suit filed against it by the widow of a veteran alleging that the Veterans Affairs (VA) facility where her husband was treated was negligent because it failed to screen for lung cancer using low-dose computed tomography (LDCT), finding that the widow’s expert witness failed to show that LDCT screening was the required standard of care.
March 15, 2023
Texas Panel Affirms Order Admitting Will To Probate In Signature Validity Dispute

HOUSTON — A Texas appellate court on March 14 affirmed a probate court’s order admitting a will to probate, finding that the probate court’s evidence supports rejecting the decedent’s granddaughter’s assertion that the will was invalid due to purported forged signatures.
March 14, 2023
CVS’s Dismissal Motion Denied In FCA Claim Over Medicare ‘Anti-Competitive Scheme’

PHILADELPHIA — A Pennsylvania federal judge denied in part CVS and its related entities’ motion to dismiss a qui tam suit against them asserting that they “engaged in an anti-competitive scheme to block Medicare Part D recipients from accessing less expensive drugs” in violation of the False Claims Act (FCA), finding that the complaint suffices to show “the existence of an agreement to violate the FCA.”
March 14, 2023
Split Panel Dismisses Appeal, Says Judgment Granting Grandparent Visitation Is Void

MONTGOMERY, Ala. — A split Alabama appellate court dismissed a father’s appeal of a juvenile court’s consolidated judgments granting visitation to maternal grandparents, vesting custody with the father but determining the child dependent as to the father, finding that the evidence fails to show that the child should remain dependent as to the father and that because the grandparents failed “to invoke the juvenile court's subject-matter jurisdiction” under Alabama law, the judgment granting visitation is void.
March 13, 2023
U.S. Files Amicus Brief In High Court Case Over Seizure Of Elderly Woman’s Condo

WASHINGTON, D.C. — An elderly woman who brought a putative class complaint after her condominium was seized by a Minnesota county and sold for $40,000 to satisfy a $15,000 tax debt stated a claim for compensable taking; however, the county’s actions did not constitute a fine subject to the excessive fines clause in the Eighth Amendment to the U.S. Constitution, the United States argues in an amicus curiae brief filed in the U.S. Supreme Court in support of neither side.
March 10, 2023
Philly Tour Business Granted Summary Judgment On Age Bias, Vacation Time Claims

PHILADELPHIA — A Philadelphia tourism-based business that had to stop running for a time due to coronavirus pandemic shutdowns and then fired an employee who asked for a raise while the business was still recovering was granted summary judgment by a federal judge in Pennsylvania on the former employee’s claims of age discrimination and unpaid vacation time.
March 10, 2023
Order Issued After Elder Files Putative Class Fraud Suit Against 55-Plus Community

LOS ANGELES — A California federal judge on March 9 issued a standing order outlining filing requirements three days after a senior resident of a retirement community filed a putative class action, asserting that the community defrauded seniors and people with disabilities by falsely representing that residents will be provided with needed care services without disclosing that staffing policies are insufficient to meet the residents’ needs.
March 10, 2023
Panel: Agent Under POA Authorized To Object To Land Valuation On Heirs’ Behalf

HOUSTON — A Texas appeals court affirmed an order denying a Texas port facility’s motion to strike in an eminent domain proceeding against a woman’s heirs, finding that because the agent of one of the heirs, pursuant to a power of attorney (POA), objected to a valuation of land owned by the heirs, the trial court correctly denied the port’s motion to strike.
March 10, 2023
Hearing Held After $12.5M Wrongful Death Verdict In Suit Against Florida Care Home

TAMPA, Fla. — A Florida judge held a post-judgment hearing after a jury awarded $12.5 million in a wrongful death suit filed against a nursing home and its owners by the daughter of a former resident, alleging that the defendants failed to prevent and treat a pressure ulcer the woman sustained, which led to her death.
March 07, 2023
Judge Clarifies Class Certification, Injunction In CMS Rule Coverage Dispute

NEW HAVEN, Conn. — A Connecticut federal judge issued an order clarifying a previous class certification and injunction order in Medicaid beneficiaries’ suit seeking to enjoin enforcement of a Centers for Medicare and Medicaid Services (CMS) interim final rule (IFR) that would reduce benefits of Medicaid beneficiaries.
March 06, 2023
U.S. Supreme Court Won’t Review ERISA Pension Plan Reinterpretation Ruling

WASHINGTON, D.C. — The U.S. Supreme Court on March 6 denied certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants; the petitioners had sought a ruling “that a reinterpretation that reduces or eliminates an accrued pension benefit is a prohibited amendment within the meaning of” the Employee Retirement Income Security Act and a violation of ERISA’s anti-cutback rule.
March 06, 2023
Ariz. Panel Remands Visitation Order For Grandchild’s Best Interests Consideration

PHOENIX — An Arizona appellate court vacated and remanded a lower court’s order denying a woman’s petition to modify third-party visitation rights of her step-grandchild, finding that the lower court erred by vacating its earlier third-party visitation order and determining that it lacked jurisdiction when the woman moved to another state and the child was adopted by his stepmother.
March 03, 2023
Medical Device Connector Company Will Pay $460,000 To Settle EEOC Age Bias Suit

ATLANTA — A Swiss-based manufacturer of circular connectors for medical devices will pay $460,000 and make other changes to settle claims by the Equal Employment Opportunity Commission that it sought to eliminate older employees and replace them with new, younger workers, according to a consent decree signed by a federal judge in Georgia.
March 02, 2023
Denial Of Care Home’s Motion To Compel Arbitration Affirmed Absent Capacity To Contract

VENTURA, Calif. — A California appellate court affirmed a trial court’s order denying a nursing home’s motion to compel arbitration after a former resident died and his heirs sued the nursing home for wrongful death and elder abuse, finding that due to an absence of evidence supporting cognitive improvement following his stroke, the man lacked the capacity to enter into the agreement and consent to waive his right to a jury trial.
March 02, 2023
Condo Owner, Amicus To High Court: Excessive Property Seizure Violates Constitution

WASHINGTON, D.C. — A law professor filed an amicus curiae brief with the U.S. Supreme Court on March 1 in support of a Minnesota woman who was 93 when her home was seized and sold for $40,000 to satisfy a $15,000 debt and who tells the high court in her petitioner brief that her putative class complaint should be allowed to proceed as the government should not “have an unbounded ability to confiscate entire properties of any size for even the most minimal tax debts.”
March 01, 2023
DOJ, New York Settle Medicaid Fraud Claims Against Nursing Home For $7.1M

NEW YORK — A New York nursing home, its owners and operators and landlord entered into a settlement with the U.S. Department of Justice and New York, agreeing to pay in total $7,168,000 to resolve allegations that they violated the False Claims Act (FCA) by submitting false claims to the Medicaid program for services not provided to residents.
February 28, 2023
Elderly Woman To High Court: Excessive Property Seizure Violates Constitution

WASHINGTON, D.C. — A Minnesota woman who was 93 when her home was seized and sold for $40,000 to satisfy a $15,000 debt tells the U.S. Supreme Court in her Feb. 27 petitioner brief that her putative class complaint should be allowed to proceed as the government should not “have an unbounded ability to confiscate entire properties of any size for even the most minimal tax debts” and that where the seizure is more than what is owed, it “is a fine subject to the Excessive Fines Clause” of the Eighth Amendment to the U.S. Constitution.
February 27, 2023
U.S. Supreme Court Denies Rehearing Petition In Age Bias Timeliness Case

WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 27 denied a petition for rehearing filed by a worker who alleged that his termination was due to his age, that his former employer was improperly granted summary judgment and that the original decision in his case overlooked “an essential piece of evidence.”
February 24, 2023
Split 11th Circuit Affirms Medicare Secondary Payer Act No Preemption Rulings

ATLANTA — A split panel of the 11th Circuit U.S. Court of Appeals affirmed two district court rulings consolidated on appeal that claims of assignees of Medicare Advantage (MA) organizations, including a now-insolvent organization, are barred for failure to follow procedural requirements of the Medicare Secondary Payer Act, finding that the act does not preempt Florida’s presuit demand requirement or a contractual claims-filing deadline.
February 23, 2023
6th Circuit Denies Rehearing In COVID Death Suit Claiming PREP Act Preemption

CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Feb. 22 denied a nursing home’s petition for rehearing en banc of its opinion affirming a district court’s order remanding a COVID-19-related negligence and wrongful death suit to state court due to the nursing home’s failure to show that the Public Readiness and Emergency Preparedness (PREP) Act supports removal.
February 21, 2023
U.S. Supreme Court Declines Review Of Social Security Act Benefits Denial

WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 21 denied a petition for a writ of certiorari challenging the Sixth Circuit U.S. Court of Appeals’ decision upholding an administrative law judge’s (ALJ) determination that a man seeking disability insurance benefits and supplemental security income through the Social Security Administration (SSA) did not have a disability under the terms of the Social Security Act.
February 16, 2023
Federal Judge Affirms Orders As ‘Not Contrary To Law’ In FCA Medicare Fraud Suit

NEW YORK — A New York federal judge affirmed a magistrate judge’s orders excluding evidence and partially denying a relator’s motion to amend the complaint for the seventh time in a qui tam suit filed under federal and New York state False Claims Acts alleging that health systems defrauded the federal and state governments by submitting millions of dollars of false claims to Medicare and Medicaid for home health services, finding that the magistrate judge’s rulings in the nondispositive matters were not “clearly erroneous or contrary to law.”
February 16, 2023
Federal Judge Grants Dismissal In Dispute Over Elder’s Annuity Beneficiary Change

BUFFALO, N.Y. — A New York federal judge granted dismissal to a life insurance company and its agent in a breach of contract suit filed against them by a caregiver for an elderly terminal cancer patient, finding that the caregiver failed to “plausibly allege” that the cancer patient “did everything in her power” to make the caregiver the beneficiary of her annuity as intended before she died.
February 15, 2023
Delaware Federal Judge Denies Dismissal Of COVID Death Suit, Says No PREP Act Bar

WILMINGTON, Del. — A Delaware federal judge denied a nursing home’s dismissal motion in a wrongful death and negligence suit against it filed by the family of a former resident who died after contracting COVID-19 there, finding that because the family’s claims do not relate to using a “covered countermeasure,” such as masks or vaccinations, their claims are not barred under the Public Readiness and Emergency Preparedness (PREP) Act.