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Mealey's Elder Law

November 17, 2022
Judge Approves Counsel Fees Of $11.5M In Mass. Soldiers’ Home $57M COVID Death Suit

BOSTON — A Massachusetts federal judge approved class counsel’s $11.5 million attorney fee request after the commonwealth of Massachusetts paid $57 million to resolve a class action filed by veterans and the estates of veterans who died at the Soldiers’ Home in Holyoke, Mass., from COVID-19 and on behalf of other residents who died from or contracted COVID-19 there, finding the award of attorney fees “reasonable.”
November 16, 2022
Washington Panel Rules On Sanctions Award In Sibling Dispute Over Parents’ Estates

SEATTLE — A Washington appellate court reversed in part and affirmed in part a daughter’s appeal of a lower court order awarding attorney fees and costs against her as sanctions and the dismissal of her claims against her brother as the personal representative of their parents’ estates, finding that her appeal did not warrant imposing attorney fees and that the trust mismanagement and legal malpractice claims were incorrectly dismissed.
November 15, 2022
Heinz Cited In Certiorari Bid Over ERISA Pension Plan Reinterpretation Dispute

WASHINGTON, D.C. — Seeking review of a ruling that they argue “renders Central Laborers Pension Fund v. Heinz toothless,” participants in a defined-benefit multiemployer pension plan urge the U.S. Supreme Court to resolve a circuit split by 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; the respondents then were granted an extension to oppose the petition for certiorari.
November 15, 2022
Citing ‘Law Of The Case,’ Panel Affirms Order Awarding Attorney Fees In Estate Row

SANTA ANA, Calif. — A California appellate court on Nov. 14 affirmed a post-judgment order awarding attorney fees to the beneficiary of a decedent’s trust after the former personal estate representative appealed the award, finding that the appellate court’s prior holding awarding attorney fees to the beneficiary is “law of the case,” precluding the argument made on appeal.
November 11, 2022
Panel Finds No Abuse Of Discretion In Order Allowing Visitation With Grandchildren

CINCINNATI — A Ohio appellate court affirmed a trial court’s judgment awarding a grandfather visitation with his grandchildren, finding that the trial court did not abuse its discretion in issuing the judgment because it did not improperly shift the burden to the father to show that visitation with the grandfather was against the children’s best interests.
November 11, 2022
Texas Panel Affirms Judgment In Will Dispute Over Claim Of Undue Influence

HOUSTON — A Texas appellate court affirmed a trial court’s judgment in a suit filed by a decedent’s daughter alleging that her mother’s will admitted to probate was obtained by undue influence and was invalid, finding that the daughter did not show that the jury’s failure to deem the will invalid “was against the great weight and preponderance of the evidence.”
November 11, 2022
Federal Judge Dismisses Elder Abuse Suit Against Bank, Cites No Knowledge Of Fraud

LOS ANGELES — A California federal judge granted JPMorgan Chase Bank and its employee’s motion to dismiss a financial elder abuse against them filed by a couple who were victims of wire fraud, finding that the couple failed to allege facts showing that the bank and its employee knew that the couple was being defrauded.
November 10, 2022
Judge Issues Partial Grant In Class Suit Seeking Injunction Over CMS Interim Rule

NEW HAVEN, Conn. — A Connecticut federal judge granted in part Medicaid recipients’ preliminary injunction motion in a putative class action asking the court to enjoin the enforcement of a Centers for Medicare and Medicaid Services (CMS) interim final rule (IFR) reducing their Medicaid benefits, finding that “the harm . . . already affecting the plaintiffs outweighs the costs to the various states.”
November 09, 2022
U.S. High Court Hears Oral Arguments On Right To Sue Under Nursing Home Reform Act

WASHINGTON, D.C. — Attorneys representing a nursing home, Indiana and 21 other states, the wife of a deceased former nursing home resident and the U.S. government in support of neither party, presented oral arguments on Nov. 8 before the U.S. Supreme Court regarding whether the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents under Title 42 U.S. Code Section 1983 for rights established by spending clause legislation.
November 08, 2022
Ark. High Court Remands For Findings In Ruling On Care Home’s Arbitration Dispute

LITTLE ROCK, Ark. — The Arkansas Supreme Court remanded with instructions a nursing home’s appeal of a trial court’s order granting in part and denying in part its motion to compel arbitration in a negligence suit against the nursing home, finding that “to conduct a proper appellate review,” remand is necessary for the trial court to provide findings regarding its order.
November 07, 2022
Iowa Panel Agrees With Finding Of Niece’s Undue Influence In Estate Challenge

DES MOINES, Iowa — An Iowa appellate court affirmed a lower court decision determining that a decedent’s bank accounts were estate property, finding that the decedent’s niece failed to meet the “burden to rebut the presumption of undue influence” when she became a joint account owner on the decedent’s bank accounts.
November 04, 2022
Federal Employee’s Age Bias Claim To Proceed After Government Changes Position

RICHMOND, Va. — A psychiatrist who was hired as a federal employee but then forced to resign after failing to pass a physical abilities test may proceed with her age and gender bias claims, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 3 following a change in position by the federal government after a divided panel ruled nearly a year ago that the age bias claim could not proceed.
November 04, 2022
Mass. Panel Affirms Denial Of Medicaid LTC Benefits, Deems Notice ‘Adequate’

BOSTON — A Massachusetts appeals court on Nov. 3 affirmed a lower court judgment for Massachusetts in a suit alleging that the state improperly denied a nursing home resident’s application for long-term care benefits under Medicaid, finding that the lower court decision was correct because the denial notice “was adequate and the appeal untimely.”
November 04, 2022
Counsel Seeks $11.5M In Fees In Mass. Soldiers’ Home $57M COVID Death Suit

BOSTON — After a claims administrator submitted an affidavit outlining fund allocations in a $57 million class action settlement of a suit filed by estates of veterans who died at the Soldiers’ Home in Holyoke, Mass., from COVID-19 and on behalf of other residents who died from or contracted COVID-19 there, class counsel submitted a petition seeking $11.5 million in attorney fees pursuant to the terms of the settlement agreement.
November 04, 2022
LTC Policyholder To 1st Circuit: Judge Rewrote ERISA Plan In Dismissal

BOSTON — Asking the First Circuit U.S. Court of Appeals to vacate and remand judgment for the defendants in her putative class suit challenging two premium increases, a group long-term care insurance policy participant argues in her Nov. 3 brief that a Massachusetts federal judge impermissibly rewrote the plan.
November 04, 2022
Panel Reverses, Cites Error In Including Firearms In Elder Abuse Restraining Order

FRESNO, Calif. — A California appellate court reversed and vacated a lower court order issuing elder abuse restraining orders (EAROs) requested by an octogenarian woman’s son against his sister-in-law and niece, finding that the lower court erred in failing to grant the continuance to obtain legal counsel as requested by the sister-in-law and niece and that the firearms and ammunition restrictions should not have been included in the restraining orders when only financial abuse was found.
November 03, 2022
Panel Reverses Order Ending Easter Seals’ Guardianship Of Deceased Veteran

MILWAUKEE — A Wisconsin appellate court reversed a lower court order terminating Easter Seals’ guardianship of a deceased veteran upon his death, finding that the lower court erred in terminating the guardianship and denying the motion for substitution of a party because Wisconsin law provides that allegations of a guardian’s improper conduct may “survive even if a ward dies while they are pending.”
November 03, 2022
Arizona Panel: Arbitration Agreement Not Binding In Nonsigner Wrongful Death Suit

PHOENIX — An Arizona appellate court affirmed a lower court’s denial of a skilled nursing facility’s motion to compel arbitration after the personal representative for the estate of a decedent filed a wrongful death claim against the facility, finding that the lower court correctly found that under Arizona law, the arbitration agreement is not binding on the nonsigner representative in the wrongful death claim.
November 02, 2022
Missouri High Court Affirms Ruling Granting Tax Collection From Deceased Bar Owner

JEFFERSON CITY, Mo. — The Missouri Supreme Court on Nov. 1 affirmed the decision of an administrative hearing commission (AHC) authorizing the director of the department of revenue to assess a bar’s unpaid taxes against a deceased bar owner, finding that the director’s assessment against the bar owner was not barred by res judicata or a statutory three-year limitation against the bar owner as a responsible party.
November 01, 2022
Nevada High Court Says Care Home Failed To Show Claims Sound In Negligence

CARSON CITY, Nev. — The Nevada Supreme Court reversed and remanded a lower court decision dismissing an elder abuse, negligence and wrongful death suit against a nursing home filed by the heir of a woman allegedly injured at the home, finding that the lower court improperly dismissed the suit for the heir’s failure to file an affidavit of merit as statutorily required for a professional negligence claim because the nursing home failed to show that the complaint sounded in professional negligence.
November 01, 2022
Panel Deems Medicaid Application ‘Nullity’ In Suit Against Social Services Agency

ALBANY, N.Y. — A New York appellate court affirmed a lower court order dismissing a negligence complaint filed by a nursing home against the commissioner of a county social services agency, finding that the nursing home’s application for Medicaid on behalf of a resident was a “nullity” because neither the nursing home nor its Medicaid coordinator was authorized to sign the application on the resident’s behalf.
November 01, 2022
U.S. High Court Denies Former Art Teacher’s ADEA Retaliation Petition

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 31 denied a petition for a writ of certiorari filed by an art teacher who unsuccessfully claimed that she was forced to retire due to retaliation after alleging in two earlier lawsuits that she was discriminated due to her age.
October 28, 2022
Alaska High Court Deems Withdrawn Will Not ‘Ongoing Fraud’ In Estate Dispute

ANCHORAGE, Alaska — The Alaska Supreme Court affirmed a lower court’s denial of a relief from judgment motion filed by a decedent’s daughter after the lower court concluded that she failed to satisfy her obligations under the estate distribution order, finding that because her sister withdrew filing of the decedent’s purported holographic will, the will cannot be considered ongoing fraud.
October 28, 2022
Care Home Seeks 9th Circuit Reversal In Row Over PREP Act Preemption In COVID Suit

SAN FRANCISCO — A nursing home filed its opening brief with the Ninth Circuit U.S. Court of Appeals, seeking reversal of a district court’s remand to state court a COVID-19 death suit filed against the nursing home, asserting that tort law claims related to measures used to prevent the spread of COVID-19 are completely preempted by the Public Readiness and Emergency Preparedness (PREP) Act.
October 26, 2022
Georgia Panel Says Court Abused Discretion By Denying Heir’s Motion To Intervene

ATLANTA — A Georgia appellate court reversed and remanded a trial court’s order that denied a motion to intervene filed by a relative of a decedent in a will construction case, finding that the trial court abused its discretion when determining that the motion was not timely because the relative sought to intervene before the issuance of judgment and should have been served in the original petition.