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Mealey's Elder Law

December 04, 2023
Drug Companies: Procedural Focus Belies Government’s Weakness In Drug-Pricing Case

WILMINGTON, Del. — Briefing by the government on its recent drug price negotiation law focuses on procedural issues because it lacks footing for an actual argument on the merits, a drugmakers say in a Dec. 1 brief to a federal judge in Delaware arguing that it is clearly injured by the unlawful application of the law, which it says will remove incentives to research and develop new drugs.
December 01, 2023
9th Circuit Denies Rehearing After Split Panel Vote In ADA Suit Against Care Home

SAN FRANCISCO — After one judge of a Ninth Circuit U.S. Court of Appeals panel voted to grant a petition for rehearing en banc, rehearing was denied when no Ninth Circuit judge requested a vote for en banc consideration of the court’s decision affirming a district court’s ruling in favor of a nonprofit advocating against housing discrimination in its suit against a nursing home alleging violations of the Americans with Disabilities Act (ADA) for the nursing home’s alleged refusal to provide an American Sign Language (ASL) interpreter to a fictitious prospective resident.
December 01, 2023
Class Certification Granted In Suit Over Deficient Long-Term Care Waiver Services

CONCORD, N.H. — A New Hampshire federal judge granted class certification to disabled persons who, on behalf of similarly situated persons, sued the New Hampshire Department of Health and Human Services (NHDHHS), asserting violations of their rights under the 14th Amendment, the Americans with Disabilities Act (ADA), the Rehabilitation Act and the Medicaid Act for failure to provide them with adequate community-based long-term care services through the Choices for Independence (CFI) Medicaid Waiver, finding, in part, that the disabled persons showed “that the defendants’ actions apply generally to the class.”
December 01, 2023
New York Panel Reverses, Dismisses All Claims In COVID Suit Against Nursing Home

ALBANY, N.Y. — A New York appellate court on Nov. 30 reversed a lower court decision that denied a nursing home’s motion to dismiss all claims against it in an estate executor’s suit after a decedent’s COVID-19-related death at the facility, finding that the nursing home was entitled to immunity pursuant to a since-repealed New York state law that provided protections to health care providers related to their treatment of persons during the COVID-19 public health emergency.
November 28, 2023
Aging, Health Care Amici Throw Support Behind Medicare Drug Negotiation Law

WILMINGTON, Del. — In a trio of amicus curiae briefs, health care and aging experts and advocates told a federal judge in Delaware that a recently enacted Medicare drug negotiation program falls within well-established powers to regulate prices the program and others within the government pay and will help reign in the “unsustainable increase in prescription drug prices.”
November 28, 2023
Panel Affirms Order Refusing To Compel Arbitration In Death Suit Against Care Home

LIMA, Ohio — An Ohio appellate court on Nov. 27 affirmed a lower court order that denied a motion by a long-term care (LTC) facility to stay a negligence and wrongful death suit filed against it and compel arbitration, finding that the lower court did not abuse its discretion in determining that the arbitration agreement the decedent signed when admitted to the assisted living portion of the facility did not apply to her later admission to the skilled nursing division of the facility.
November 27, 2023
S.D. High Court Reinstates Undue Influence Jury Verdict In Daughter’s Will Contest

PIERRE, S.D. — The South Dakota Supreme Court reversed a lower court’s ruling setting aside a jury’s verdict of undue influence in a daughter’s challenge to a will naming her father’s neighbor as his sole beneficiary, finding that there was sufficient evidence to support the jury’s finding of undue influence by the beneficiary and that the lower court abused its discretion in granting the beneficiary’s motion for a new trial.
November 22, 2023
Montana High Court Affirms Order Reopening Estate Over Share Purchase Agreement

HELENA, Mont. — The Montana Supreme Court on Nov. 21 affirmed a lower court order granting an estate representative’s motion to reopen an estate, finding that because the representative “reasonably” determined that a stock pledge agreement (SPA) between the decedent and his grandson had no value when the estate was closed, her later discovery that the SPA had value constitutes a “subsequently discovered” asset pursuant to Montana law, permitting the reopening.
November 22, 2023
Alabama High Court Reverses Judgment For Estate In Death Suit Against Hospitals

MONTGOMERY, Ala. — The Alabama Supreme Court reversed a trial court’s judgment for an estate in a medical malpractice and wrongful death suit filed against hospitals after an 85-year-old woman died after receiving treatment there for a pressure ulcer, finding that the trial court erred by denying the hospitals’ renewed motion for judgment on the law, asserting that the estate failed to establish proximate cause that the woman’s death, purportedly from sepsis, resulted from their breach of care.
November 21, 2023
Suit Claiming Skilled Nursing Facilities Violated FCA Tossed After Parties Settle

LOS ANGELES — A California federal judge dismissed the government’s claims against six skilled nursing facilities (SNFs), their owner and their management company two days after the U.S. Department of Justice announced that it entered into a $45.6 million consent judgment with the SNFs and related parties in a suit alleging that they violated the federal False Claims Act (FCA) and California False Claims Act in submitting false claims to Medicare by paying kickbacks to physicians in exchange for the physicians referring patients to the SNFs.
November 17, 2023
Judge Directs Recalculation In ERISA Suit Over ‘Leveled’ Retirement Benefits

COLUMBUS, Ohio — Saying he denied both parties’ motions for judgment as a matter of law, an Ohio federal judge directed recalculation of a retired UPS driver’s benefits in an Employee Retirement Income Security Act suit over pension benefits that the retiree opted to receive in the form of the “Social Security Leveling Option.”
November 16, 2023
4th Circuit Dismisses Appeal In ERISA Case Involving Retiree Benefit Changes

RICHMOND, Va. — Saying in a Nov. 15 unpublished per curiam opinion that the challenged ruling “is neither a final order nor an appealable interlocutory or collateral order,” a Fourth Circuit U.S. Court of Appeals panel dismissed an appeal involving Employee Retirement Income Security Act claims over changes to retiree health benefits.
November 16, 2023
DOJ Announces $45.6M Judgment In FCA Suit Against Skilled Nursing Facilities

WASHINGTON, D.C. — The U.S. Department of Justice (DOJ) on Nov. 15 announced that six skilled nursing facilities (SNFs), their owner and their management company have entered into a $45.6 million consent judgment to resolve allegations that they violated the federal False Claims Act (FCA) and California False Claims Act in submitting false claims to Medicare by paying kickbacks to physicians in exchange for the physicians referring patients to the SNFs.
November 16, 2023
2 Estates’ Class Suit Accuses UnitedHealth Of Care Denial By AI

MINNEAPOLIS — An insurer illegally employs artificial intelligence (AI) to deny elderly insureds medically necessary care based on a model that the insurer knows “has a 90% error rate,” two estates allege in a class complaint filed in a federal court in Minnesota.
November 15, 2023
Magistrate Recommends Not Striking Expert Reports In Care Home Negligence Suit

GREENSBORO, N.C. — A North Carolina federal magistrate judge on Nov. 14 recommended denying a skilled nursing facility’s summary judgment motion and motion to strike expert witness reports in a negligence suit against the facility by the estate of a former resident, finding that the estate has shown that failure to comply with the expert disclosure deadline was harmless and there is no basis for summary judgment without excluding the expert reports.
November 14, 2023
Judgment Issued For Mortgagee In Row With Estate Administrator Over Fire Loss

PHILADELPHIA — A Pennsylvania federal judge granted judgment in favor of a mortgage company in an estate administrator’s breach of contract suit against it over failure to return $312,034.34 in fire loss draft funds to the estate, finding that because the company’s limited time offer to settle the loan balance did not include an agreement to return the loss draft funds, the administrator failed to prove his breach of contract claim.
November 13, 2023
California Panel Upholds Decision Denying Return Of Property To Matriarch’s Trust

FRESNO, Calif. — A California appellate court affirmed a lower court’s order denying an estate administrator’s petition to return to a family trust property held by family members, finding that the lower court correctly determined that the estate administrator failed to meet his burden to establish that his deceased mother, the family matriarch, made the transfers as a result of undue influence.
November 08, 2023
Nursing Homes’ Affirmative Defenses Stricken In FCA Suit Over ‘Substandard’ Care

PHILADELPHIA — A Pennsylvania federal judge on Nov. 7 granted in part the U.S. government’s motion to strike affirmative defenses asserted by nursing home defendants’ in a suit asserting common law claims and violations of the False Claims Act (FCA) related to alleged “grossly substandard nursing home services to Medicare and Medicaid beneficiaries,” finding that the affirmative defenses of waiver and ratification and accord and satisfaction are not valid but that the mitigation of damages defense must be stricken only as to the FCA claims and not the common law claims.
November 08, 2023
Settlement Reached In Coverage Row With Care Home, Insurer, Ancillary Care Company

ASHEVILLE, N.C. — A nursing home and an ancillary care company and its insurer on Nov. 7 filed a stipulation of dismissal in North Carolina federal court advising that they settled the nursing home’s breach of contract suit against the company and insurer seeking to have them indemnify and defend the nursing home in an underlying arbitration proceeding related to the death of a former resident.
November 08, 2023
Judgment Granted For County In POA Dispute Over Elder Refusing Hospitalization

GREENSBORO, N.C. — A North Carolina federal judge granted summary judgment to a county, related officials and emergency medical services (EMS) personnel in a suit against them by the family of a man who died after refusing to be transported to a hospital against the wishes of his power of attorney (POA), finding that the wrongful death claim against EMS personnel, which “sounds in medical malpractice,” must be dismissed for failure to provide expert review of medical records.
November 07, 2023
Split Panel Affirms Judgment For Senior Living Facility In Premises Liability Case

ATLANTA — A split Georgia appellate court panel affirmed a lower court’s grant of summary judgment to an assisted living facility in a premises liability suit against it after a resident’s fall led to his death, finding that because the crack in the pavement where the man tripped “was a commonly occurring open and obvious static condition,” the facility lacked the superior knowledge necessary to prove premises liability.
November 06, 2023
3rd Circuit Upholds Dismissal Of Railroad Worker’s Age Bias Suit

PHILADELPHIA — A railroad worker who was fired after a train mishap while a younger worker who was driving the train was given demerits but retained his job failed to show that his termination was due to age, a Third Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s dismissal of the complaint.
November 02, 2023
Del. Court Denies Dismissal, Says Claims Against Rehab Don’t Fall Under PREP Act

NEW CASTLE, Del. — A Delaware state court denied dismissal to a skilled nursing and rehabilitation facility in a wrongful death and negligence suit against it filed by the daughter of a woman who died after purportedly contracting COVID-19 at the facility, finding that the complaint was timely filed and that the Public Readiness and Emergency Preparedness Act (PREP Act) does not provide immunity for the claims against the facility.
November 01, 2023
5th Circuit: Trial Court Must Reconsider Army Hospital Surgeon’s Retaliation Claim

NEW ORLEANS — A trial court properly rejected age bias allegations by an Army hospital surgeon in his 70s who was removed from his post as chief of surgery but erred in finding that that the surgeon failed to establish a prima facie case of retaliation in connection with some of his actions taken after his clinical privileges were placed in abeyance, a Fifth Circuit U.S. Court of Appeals panel ruled, remanding for the lower court to consider whether the Army provided a legitimate and non-pretextual reason for the action.
November 01, 2023
Panel Says Son’s Intimidation Of Mother Violated Senior Consumer Protection Act

INDIANAPOLIS — An Indiana appellate court affirmed a trial court’s ruling invalidating a quit claim deed and determining that a nonagenarian’s son and his wife violated the Indiana Senior Consumer Protection Act (SCPA), finding the trial court’s judgment was supported by its findings that the son and his wife violated the SCPA by intimidating the nonagenarian and telling her that she would be moved to a nursing home if she did not deed her house over to them.