Mealey's Elder Law : Mealey's : Legal News & Analysis

Mealey's Elder Law

August 22, 2023
Judge Says Public Disclosure Bar Doesn’t Stop FCA Suit Claiming Medicare Fraud

PHILADELPHIA — A Pennsylvania federal judge granted in part motions filed by skilled nursing facilities (SNFs) and a rehabilitative services contract provider to dismiss a qui tam suit against them, alleging Medicare and Medicaid fraud related to billing for rehabilitative therapy that was purportedly not provided, finding that False Claims Act (FCA) claims against the SNFs should be dismissed for failure to show that they knew of the false billing but that the public disclosure bar precludes dismissal of the FCA claims against the contract provider.
August 22, 2023
Split Texas High Court Deems Care Home’s Negligence A ‘Health Care Liability Claim’

AUSTIN, Texas — The Texas Supreme Court issued a mandate finalizing its judgment after a divided court issued an opinion finding that a premises liability claim against an assisted living facility whose employee was helping a resident with her walker when she suffered a fatal injury in a fall constituted a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA).
August 21, 2023
Employers Settle Claims They Trained Hiring Algorithm To Exclude Older Applicants

BROOKLYN, N.Y. — A trio of companies that provided English-language tutoring for individuals in China settled a case brought by the Equal Employment Opportunity Commission claiming that the employers trained their hiring algorithm to exclude older applicants.
August 21, 2023
Illinois Panel Modifies, Affirmatively Answers Care Home COVID Immunity Question

ELGIN, Ill. — An Illinois appeals court answered in the affirmative a question certified to it from a lower court after modifying it to ask whether a specific executive order issued by the Illinois governor grants “immunity for ordinary negligence claims to healthcare facilities that rendered assistance to the State during the COVID-19 pandemic,” finding that the order “neither overrides nor is inconsistent with the General Assembly’s grant of authority to the Governor” pursuant to the Illinois Emergency Management Act.
August 18, 2023
Panel Says Credit Union Demurrer ‘Improperly Overruled’ In Elder Abuse, Scam Case

RICHMOND, Va. — A Virginia appellate court reversed a lower court’s order overruling a credit union’s demurrer in a negligence and elder abuse suit filed against it by a woman who was scammed into wiring more than $134,000 out of her account without being able to reverse the wires, finding, in part, that the Uniform Commercial Code (UCC) preempts the woman’s claims.
August 14, 2023
Elder Abuse Claim Against Bank Dismissed In Senior’s Suit Over $35,000 Loss

SAN DIEGO — A California federal judge dismissed claims for financial elder abuse, economic-based negligence and violations of the California Consumer Records Act (CCRA) in a man’s suit alleging that Wells Fargo’s failure to safeguard his bank accounts resulted in unauthorized access that depleted his accounts by approximately $35,000, finding that the allegations related to the dismissed claims were conclusory or insufficiently pleaded.
August 11, 2023
Man Convicted Of Care Home Fraud Seeks High Court Review Of $38M Forfeiture Order

WASHINGTON, D.C. — A man convicted of fraud, bribery and money laundering and ordered to forfeit $38.7 million related to a health care scheme involving bribing physicians to have patients entered into assisted living and skilled nursing facilities that he owned filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the court to review whether a court, rather than a jury, may conduct fact finding to determine the amount to be forfeited.
August 11, 2023
Panel Quashes Order Denying Dismissal In Wrongful Death Suit Against Nursing Home

WEST PALM BEACH, Fla. — A Florida appellate court granted certiorari and quashed a lower court’s order denying dismissal of an estate’s wrongful death and negligence suit against a purported partnership that owned a 95% interest in a nursing home’s licensee and the alleged sole owner of the licensee’s management company, finding that the estate’s allegations that the partnership and owner were involved with the nursing home’s management decisions did not suffice to comply with Florida law regarding negligence suits against nursing homes.
August 11, 2023
Connecticut High Court Reverses Dismissal Of Wrongful Death Suit Against Doctors

HARTFORD, Conn. — The Connecticut Supreme Court reversed and remanded a trial court’s judgment that dismissed gross negligence claims against three physicians related to the death of a woman whose life-threatening heart condition was misdiagnosed during the COVID-19 pandemic, finding that the physicians were not immune for claims of gross negligence under the governor’s executive order granting immunity to health care professionals or under the Public Readiness and Emergency Preparedness (PREP) Act.
August 11, 2023
Maine High Court Affirms Fraud Claim Judgment In Row Over Testamentary Capacity

PORTLAND, Maine — The Maine Supreme Judicial Court affirmed a lower court’s judgment against sons on their fraud claim in a dispute over their mother’s will but vacated and remanded the declaratory judgment against the sons on their claim related to their mother’s purported lack of testamentary capacity, finding that while the sons failed to establish a prima facie case for fraud, the declaratory judgment claim was instead under the exclusive jurisdiction of the probate court.
August 09, 2023
2nd Circuit: Piggybacking Rule Rejected Due To Age Bias Arbitration Pact

NEW YORK — Former employees attempting to bring untimely age bias claims can’t rely on the “piggybacking rule” where they already signed agreements to arbitrate as the rule is judge-made rather than “a substantive right,” a Second Circuit U.S. Court of Appeals panel ruled, affirming a summary judgment ruling for International Business Machines Corp. (IBM).
August 08, 2023
11th Circuit Denies Rehearing After Upholding Age Bias Arbitration Demand As Late

ATLANTA — The 11th Circuit U.S. Court of Appeals denied a petition for rehearing or rehearing en banc filed by a terminated worker after the panel ruled in her age bias case that she failed to show that an arbitrator erred in concluding that the late demand was de minimis and that the Age Discrimination in Employment Act’s (ADEA) “piggybacking doctrine” did not apply to arbitration.
August 03, 2023
Panel Affirms Order Denying Arbitration In Negligence Suit Against Care Home

COLUMBIA, S.C. — A South Carolina appellate court on Aug. 2 affirmed a lower court’s order denying a nursing home’s motion to dismiss, to compel arbitration and to stay in a suit against it alleging negligence related to a resident’s incurring a hip fracture, finding that the resident’s agent acting pursuant to a health care power of attorney (HCPOA) lacked the authority to enter the arbitration agreement on his behalf.
August 03, 2023
9th Circuit Affirms Order Not Striking Testimony In Senior Home Understaffing Row

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Aug. 2 affirmed a district court’s order denying assisted living facilities’ motion to strike expert testimony and certifying a class of residents in a suit alleging inadequate staffing at the facilities, finding that the district court did not abuse its discretion when certifying the class and that the evidence sufficed to show inadequate staffing.
August 03, 2023
New York Care Homes Appeal Orders Requiring Monitors In $83M Medicare Fraud Suit

NEW YORK — Less than a week after a New York state justice issued orders requiring independent monitors in an $83 million Medicare and Medicaid fraud suit, multiple nursing homes and their owners and operators appealed, arguing that the monitors are unnecessary and would disrupt their business.
August 02, 2023
Massachusetts High Court: Voluntary Status OK As Prior Appointment For Probate

BOSTON — The Massachusetts Supreme Judicial Court unanimously reversed a lower court judgment dismissing a woman’s petition for formal probate of her mother’s estate, finding that the woman’s authority as voluntary personal representative sufficed as a prior appointment exception to statutory law requiring that a petition for formal appointment be filed within three years of the decedent’s death.
August 01, 2023
New York Panel Affirms Penalty Period Finding In Medicaid LTC Application

ROCHESTER, N.Y. — A New York appellate court panel affirmed a determination imposing a penalty period on a now-deceased nursing home resident’s application for long-term care Medicaid, finding that evidence supports the New York State Department of Health’s (DOH) decision that transfers by the decedent’s son pursuant to a power of attorney (POA) for his mother were made “in part” to qualify her for Medicaid rather than as executor of his father’s estate.
July 31, 2023
Texas Appeals Court Reverses Decision Denying Son Interest In Life Estate Property

WACO, Texas — A Texas appellate court reversed a lower court decision that denied a son the right to interest in property deeded to him through a life estate from his father and stepmother, finding that the son’s one-half interest in the property vested to him as soon as his father died and that neither revocations made by his stepmother’s agent under a power of attorney (POA) impacted the son’s interest in the property.
July 28, 2023
New York Justice Dismisses Wrongful Death Claims Against Hospice Agency, Physician

BROOKLYN, N.Y. — A New York state justice granted summary judgment and dismissed wrongful death and medical malpractice claims against a physician and agencies for home health, visiting nurses and hospice care in an estate administrator’s suit alleging that the deceased died from sepsis related to infected pressure ulcers, finding that the defendants established that they did not contribute to the woman’s death and that the opinions of the estate’s expert witness do not address facts and “are conclusory and speculative.”
July 27, 2023
Wisconsin Panel Affirms Judgment For Seniors In POA Fraud, Undue Influence Suit

MILWAUKEE — A Wisconsin appellate court affirmed in part a lower court’s judgment against a former agent acting under a power of attorney (POA), finding that the lower court correctly granted judgment for a couple who sued the agent for fraud and undue influence after revoking the POA, but reversed and remanded for the lower court to explain how it determined the dollar amount of sanctions regarding the former agent’s discovery violations.
July 26, 2023
Split 2nd Circuit Reverses Decision Barring RICO Claims In $162M Estate Dispute

NEW YORK — A split Second Circuit U.S. Court of Appeals reversed and remanded a district court’s decision that barred a woman’s Racketeer Influenced and Corrupt Organizations (RICO) Act claims in her suit alleging that her brother looted their father’s estate of more than $162 million in assets, finding that the woman’s claims are not barred by the RICO amendment because the alleged conduct did not involve buying or selling securities.
July 25, 2023
Nebraska High Court Reverses, Deems Suit Filed After Estate Reopening Timely

LINCOLN, Neb. — A unanimous Nebraska Supreme Court reversed and remanded an appellate court’s determination that a lower court correctly dismissed a woman’s negligence suit against the estate of a man involved in an automobile accident with her, finding that the woman’s second amended complaint “relates back to the date of the first amended complaint,” which was filed within the applicable statute of limitations.
July 25, 2023
New York Justice Appoints County Human Services Agency As Guardian For Older Adult

ROCHESTER, N.Y.— A New York state justice granted guardianship to a county human services agency in response to a petition filed on behalf of an incapacitated older adult, finding that because there are no other family members or entities willing to accept the appointment, the agency is suitable and the appointment is in the best interest of the woman.
July 20, 2023
Montana High Court Affirms Judgment For Estate As To $83,000 And Personal Items

HELENA, Mont. — A unanimous Montana Supreme Court affirmed in part a lower court’s summary judgment for an estate in a dispute between the estate’s personal representative and his sister, finding that the lower court did not abuse its discretion in awarding judgment for the estate as to claims for $83,000 and personal property taken from the decedent’s home after she died.
July 17, 2023
Judge Denies Hospice Patient’s TRO Request, Deems Cat Not Reasonable Accommodation

JACKSON, Tenn. — A Tennessee federal judge adopted a magistrate judge’s report recommending denying a hospice patient’s motion for a preliminary injunction and a temporary restraining order (TRO) in her suit against her retirement home, alleging violations of the Fair Housing Act (FHA) for disallowing her to have a cat as an emotional support animal (ESA), finding, among other things, that the woman is “unlikely to succeed on the merits.”