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

Mealey's Elder Law

October 12, 2022
New York Justice Deems Abusive Husband Unsuitable As Guardian For ‘Frail’ Wife

RIVERHEAD, N.Y. — A New York justice on Oct. 11 determined that appointing a guardian is necessary to prevent harm to an alleged incapacitated person (AIP) after she was hospitalized and showed signs of neglect and abuse, finding that though the AIP told hospital staff that her husband hit her and said she wanted to go home with him, her husband was not a suitable guardian.
October 12, 2022
Panel Affirms Order Appointing Attorney As Guardian Of Octogenarian’s Property

TRENTON, N.J. — A New Jersey appellate court affirmed a trial court order appointing a woman as guardian of the person for her mother and an independent attorney as guardian of the mother’s property, finding that because the daughter did not challenge the appointment of the guardian of her mother’s property in the trial court, she is prevented from challenging that determination on appeal.
October 12, 2022
Judgment For Elder Care Group Reversed In False Imprisonment Suit Filed By POA

BOSTON — A Massachusetts appellate court reversed and remanded a lower court’s decision granting summary judgment and dismissing the complaint in a false imprisonment suit filed against a police officer, hospital and elder care services agency and its implicated employee by a former health care proxy and power of attorney (POA) for a priest who was removed from the proxy’s home and hospitalized without the proxy’s consent, finding that “there are material factual disputes that preclude the entry of summary judgment.”
October 12, 2022
High Court Grants U.S. More Time In Row Over Right To Sue Under Nursing Home Act

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 11 granted the solicitor general’s motion to participate as amicus curiae, for divided argument and for enlargement of time for oral argument and also granted Indiana’s motion to participate in oral argument as amicus and for divided argument in a case addressing whether the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents.
October 11, 2022
Panel Affirms Dismissal Of COVID Death Suit Against Care Home, Cites Immunity Law

ROCHESTER, N.Y. — A New York appellate court affirmed a lower court’s dismissal of a wrongful death suit filed against a nursing home by the administrator of a woman who died there from COVID-19, finding that the lower court properly considered the New York state law granting immunity to health care providers for treatment of COVID-19 that was in effect when the decedent died.
October 07, 2022
California Panel Affirms Finding Of No Neglect In MRI Burns, Elder Abuse Suit

LOS ANGELES — A California appellate court affirmed a trial court’s grant of judgment notwithstanding the verdict (JNOV) in favor of a medical center in an estate’s suit alleging negligence under the Elder Abuse and Dependent Adult Civil Protection Act, finding that the trial court correctly determined that the evidence did not support the assertion that the medical center had a custodial relationship with the decedent and that the medical center’s failure to screen the decedent before he sustained burns during an MRI scan did not constitute neglect under the act.
October 06, 2022
Federal Judge Rules On Wrongful Death, Negligence Claims Against Veterans’ Home

PHILADELPHIA — A Pennsylvania federal judge denied a veterans’ center and its director’s motion to dismiss a wrongful death claim against them filed by a woman on behalf of her mother, alleging that substandard care at the veterans’ center led to her death, finding that a U.S. Supreme Court case pending oral argument and addressing whether a family member of a nursing home resident can bring a claim against the nursing home for civil rights violations and violations of the Federal Nursing Home Reform Act (FNHRA) “will be controlling” as to the wrongful death claim.
October 05, 2022
Connecticut Panel Affirms, Rejects Request To Alter Distribution In Will Dispute

HARTFORD, Conn. — A Connecticut appellate court on Oct. 4 affirmed a trial court judgment in favor of an estate executrix in a decedent’s nephew’s suit against her, finding that the trial court did not err in failing to consider the nephew’s remedy that the distributions under the will from the sale of decedent’s real property require “equitable abatement.”
October 04, 2022
Kentucky High Court: Panel Erred In Finding No Lower Court Jurisdiction To Probate

FRANKFORT, Ky. — The Kentucky Supreme Court reversed an appellate court’s decision remanding a probate matter to a lower court, holding that the appellate court erred by finding that the lower court “lacked jurisdiction to probate the will at issue in this action.”
October 04, 2022
U.S. Government Settles ADA Violation Suit Against Housing Authority For $250,000

NEW ORLEANS — The U.S. Department of Justice on Oct. 3 announced that the Housing Authority of New Orleans (HANO) and seven private developers agreed to a $250,000 settlement in a Louisiana federal court suit filed against HANO and the builders, alleging violations of the Fair Housing Act (FHA) and the Americans with Disabilities Act of 1990 (ADA) in building eight multi-unit residential facilities.
October 04, 2022
Chamber, Groups Seek High Court Review Of PREP Act Preemption In COVID Death Suit

WASHINGTON, D.C. — In an amicus curiae brief filed with the U.S. Supreme Court in support of a nursing home’s petition for a writ of certiorari, the U.S. Chamber of Commerce, the American Hospital Association, the American Health Care Association and the American Tort Reform Association argue that the Ninth Circuit U.S. Court of Appeals’ decision affirming remand of a COVID-19 wrongful death suit to state court “undermines” the immunity protections for “front-line responders” under the Public Readiness and Emergency Preparedness (PREP) Act.
October 04, 2022
U.S. High Court Won’t Review N.C. Retiree Class Health Benefits Changes

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 3 denied a petition for a writ of certiorari filed by a state health plan for North Carolina retirees and others sued by a putative class after a premium-free health plan was eliminated, leaving in place a ruling by the state’s high court finding that the retirees had vested rights but remanding the case for a determination on whether those vested rights were impaired.
October 03, 2022
U.S. Supreme Court Denies Cert To Care Home In Dispute Over Arbitration Standards

WASHINGTON, D.C. — A West Virginia Supreme Court of Appeals ruling denying a nursing home’s motion to compel arbitration because the agreement failed to comply with its own standards stands after the U.S. Supreme Court on Oct. 3 declined the nursing home’s request to review the case.
October 03, 2022
Supreme Court Denies Cert In Dispute Over Medicare Fraud Standard In Hospice Care

WASHINGTON, D.C. — A Fifth Circuit U.S. Court of Appeals ruling upholding a man’s federal conviction for pervasive fraud regarding hospice certifications in a Medicare health care fraud scheme stands after the U.S. Supreme Court on Oct. 3 declined the man’s petition for writ of certiorari.
October 03, 2022
Cert Denied On Petitions About ERISA Ruling That Upheld Life Insurance Terminations

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 3 denied two certiorari petitions regarding the same 11th Circuit U.S. Court of Appeals ruling that, under the Employee Retirement Income Security Act, fiduciary breach claims were time-barred and plan language of life insurance policies unambiguously permitted termination of disputed benefits.
October 03, 2022
Cert Denied In Row Over CMS Rule Impacting Care Home Use Of Arbitration Agreements

WASHINGTON, D.C. — An Eighth Circuit U.S. Court of Appeals decision upholding a Centers for Medicare and Medicaid Services (CMS) rule placing conditions on long-term care (LTC) facilities’ use of arbitration agreements stands after the U.S. Supreme Court on Oct. 3 denied the LTC facilities’ petition for certiorari.
September 30, 2022
Care Homes’ Architect Agrees To $450,000 Settlement In ADA Violation Suit

ALLENTOWN, Pa. — In a Sept. 29 minute docket entry, a Pennsylvania federal judge held a telephone status conference one day after issuing a consent order approving a $450,000 settlement that includes an architectural firm depositing $350,000 in a retrofit fund, in a suit brought by the U.S. government against the owners of senior homes and the architects who designed them, alleging failure to meet the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) requirements.
September 29, 2022
N.C. Panel Says Care Home Agreed To Arbitration By Actions In Accepting Resident

RALEIGH, N.C. — A North Carolina appellate court reversed and remanded a lower court order denying a senior living facility’s motion to compel arbitration in a suit filed by a woman who was allegedly injured there by another resident, finding that although the facility’s representative never signed the arbitration agreement, it “showed assent” to the agreement by accepting the woman as a resident and accepting the fees associated with the woman’s residency.
September 29, 2022
Care Home Advocates Urge Texas High Court Reversal In Health Care Liability Suit

AUSTIN, Texas — Advocates for senior living communities filed an amicus curiae brief with the Texas Supreme Court, contending that because an assisted living facility’s employee was providing health care services to a facility resident when she was injured and died, the court should reverse an appellate court’s decision that the alleged negligence does not constitute a health care liability claim (HCLC) under the Texas Medical Liability Act (TMLA).
September 28, 2022
South Dakota High Court Remands In Probate Row Over POA’s Undue Influence

PIERRE, S.D. — The South Dakota Supreme Court affirmed a circuit court order granting summary judgment to the power of attorney (POA) and husband of a decedent on claims for constructive and statutory fraud in a suit filed by the estate’s personal representative, but reversed and remanded claims for conversion of the decedent’s wedding ring and investments, breach of fiduciary duty, incapacity and undue influence, finding that the husband’s evidence in support of summary judgment fails to eliminate questions of material fact regarding these claims.
September 28, 2022
Idaho High Court Remands, Allowing Guardian To ‘Cure’ Signature In Negligence Suit

BOISE, Idaho — The Idaho Supreme Court vacated and remanded a lower court judgment dismissing a negligence claim in an automobile accident suit filed by a purported guardian on behalf of a woman with Alzheimer’s disease, finding that because the lower court erred by concluding that the original complaint was a nullity for having an improper signature, remand was necessary to allow the lower court to determine whether to allow the new court-appointed legal guardian “to cure the improper signature.”
September 28, 2022
EEOC Accuses Pharmaceutical Company Of Age-Biased Hiring Decisions

INDIANAPOLIS — A pharmaceutical company with an aging workforce changed its hiring practices in 2017 to add “more Millennials” to its staff in violation of the Age Discrimination in Employment Act (ADEA), the Equal Employment Opportunity Commission alleges in a complaint filed in a federal court in Indiana.
September 27, 2022
AARP, Others Support Petition In Class Suit Over Property Seizure For Tax Debt

WASHINGTON, D.C. — The U.S. Supreme Court should take up the appeal in a putative class complaint concerning the seizure of the full equity of a residence by Minnesota tax authorities even when the tax debt owed was less than the property was sold for and should “consider the human cost of such laws for the nation’s older citizens in particular,” the AARP and AARP Foundation argue in one of seven amicus curiae briefs supporting the petitioner, a Minnesota woman who was 93 when her home was seized.
September 26, 2022
24 Amicus Briefs Filed In High Court Row Over Right To Sue Under Nursing Home Act

WASHINGTON, D.C. — Twenty-four amicus curiae briefs were filed Sept. 22 and 23, all in support of the wife of a now-deceased former nursing home resident, urging the U.S. Supreme Court to affirm 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.
September 23, 2022
Due To Inexpert Witness, Dismissal Affirmed In COVID Death Suit Against Care Home

TRENTON, N.J. — A New Jersey appellate court affirmed a trial court’s dismissal of an estate administrator’s negligence suit filed against an assisted living facility on behalf of a former resident who died there from COVID-19, finding that dismissal was correct because the administrator failed to provide an affidavit of merit showing that his expert witness was licensed and qualified to testify about the appropriate standard of care.