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Mealey's Elder Law

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.
October 26, 2022
Judge Stays Suit In Row Over Requiring Retirees To Switch To Medicare Advantage

WILMINGTON, Del. — A Delaware judge granted a stay to retirees pending a decision in their suit against the Delaware State Employee Benefits Committee (SEBC) for its requirement that all Delaware state retirees having Medicare supplemental plans must switch to Medicare Advantage (MA) plans, finding that the issues regarding the case are “substantial” and the retirees have shown “that they will suffer irreparable harm.”
October 26, 2022
Panel Rules On Judgment Barring Bank From Foreclosure Action Against Estate

SPRINGFIELD, Ill. — An Illinois appellate court affirmed in part a trial court’s judgment that the claim of a bank against the estate of a decedent mortgagor is statutorily time-barred under Illinois law, finding that the bank’s “failure to timely file a claim against decedent or his estate” prevents the bank from using estate assets to satisfy a debt.
October 25, 2022
Panel Affirms Judgment And Finding Of No ‘Parent-Like’ Bond With Grandchildren

HARTFORD, Conn. — A Connecticut appellate court on Oct. 25 affirmed a trial court’s order denying a maternal grandmother’s petition for visitation with her grandchildren, finding that because the trial court determined that “no parent-like relationship with the children existed,” it was not required to decide whether denying visitation “would result in real and significant harm to the children.”
October 24, 2022
Michigan Panel Rules On Siblings’ Dispute Over Court Orders, Estate Distributions

DETROIT — A Michigan appellate court affirmed a probate court’s approval of the sale of two of the decedent’s properties but vacated the portion of the probate court’s order requiring the estate to pay $10,000 to a beneficiary for property maintenance, remanding for the probate court to amend the order regarding the payment and to make a determination regarding the distribution of oil leases.
October 21, 2022
9th Circuit Commissioner Grants Seal Motion In Facility Understaffing Suit

SAN FRANCISCO — In a one-page order, a Ninth Circuit U.S. Court of Appeals commissioner granted assisted living facilities’ opposed motion to seal documents filed in support of their appeal seeking reversal of a district court’s class certification in a suit alleging inadequate staffing at the facilities.
October 21, 2022
Heirs Ask High Court To Deny Review Of PREP Act Preemption In COVID Death Suit

WASHINGTON, D.C. — In a respondents’ brief in opposition to a nursing home’s petition for a writ of certiorari, the successors and heirs who filed a wrongful death suit on behalf of a man who died at the nursing home from COVID-19 assert that the Ninth Circuit U.S. Court of Appeals’ decision affirming remand to state court correctly held “that the Public Readiness and Emergency Preparedness Act of 2005 (PREP Act) does not completely preempt state-law claims like those” filed by the heirs.
October 18, 2022
Care Home Tells High Court No Individual Right To Sue Under Nursing Home Act

WASHINGTON, D.C. — A nursing home on Oct. 17 filed a reply brief urging the U.S. Supreme Court to reverse a Seventh Circuit U.S. Court of Appeals ruling that 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.
October 14, 2022
Panel: Arbitration Agreement Not Enforceable In Negligence Suit Against Care Home

CHICAGO — An Illinois appeals court affirmed a lower court’s decision that an arbitration agreement was unenforceable in a negligence suit filed by an estate administrator against a nursing home, finding that the agreement was “substantively unconscionable” because it waived the son’s right to attorney fees under the Illinois Nursing Home Care Act “without adequate consideration.”
October 14, 2022
Virginia High Court Rules On Will Dispute And Account Awarded To German Nonprofit

RICHMOND, Va. — The Virginia Supreme Court on Oct. 13 affirmed a lower court’s decision admitting a will to probate but reversed and vacated the court’s decision awarding a brokerage account’s proceeds to a German charity, finding that the charity lacked standing to invalidate a beneficiary designation that awarded the brokerage account to the decedent’s nephew.
October 14, 2022
Judge Approves Consent Motion In ADA Violation Suit Against Housing Authority

NEW ORLEANS — A Louisiana federal judge approved the U.S. Department of Justice’s motion for a $250,000 consent judgment in a suit filed against the Housing Authority of New Orleans (HANO) and seven private developers alleging violations of the Fair Housing Act (FHA) and the Americans with Disabilities Act of 1990 (ADA) in building eight multiunit residential facilities.
October 14, 2022
Amici Support Petition Seeking To Cure Federal Service Defects In Age Bias Suits

WASHINGTON, D.C. — The U.S. Supreme Court should grant a petition by two former employees of federal agencies whose age and disability bias claims were dismissed for failure to serve the United States in addition to the agencies for which they worked as “[t]he process for serving officers of the United States is complex” and the rules dictating the process should be “construed to promote fair and efficient resolution of cases,” seven civil procedure professors argue in their Oct. 13 amicus curiae brief.
October 13, 2022
Texas Panel Dismisses Son’s Will Contest, Cites Probate Order As ‘Interlocutory’

SAN ANTONIO — A Texas appellate court on Oct. 12 dismissed a son’s appeal of a lower court’s order admitting his father’s will to probate and denying his motion for a new trial, finding that the appellate court does not have jurisdiction for the interlocutory appeal because the trial court has not “disposed of all the issues” in the will contest.