September 28

Nursing Home Can Pursue Breach-of-Contract Claim Against Resident’s Son

A New York trial court rules that a nursing home can pursue a breach-of-contract claim against a resident’s son who signed the admission agreement, agreeing to use his mother’s funds to pay for her care or apply for Medicaid on her behalf. Jewish Home Lifecare v. Ast (N.Y. Sup. Ct., New York Cty., No. 161001/14, July 17, 2015).

Ernest Ast admitted his mother to a nursing home and signed the admission agreement as the responsible party. According to the court, the responsible party was personally liable for ensuring Medicaid coverage, but was not required to use his or her own funds to pay for care. Ernest Ast also signed his brother’s name to the agreement.

After Ernest’s mother died, the nursing home sued Ernest and his brother, Mark, for breach of contract, among other things. The nursing home argued the brothers failed to apply for Medicaid or use their mother’s money to pay the nursing home and that they fraudulently transferred her money to themselves. Mark argued that he could not be liable because he did not sign the contract, and Ernest argued that he couldn’t be personally liable because the contract provided that he was not required to use his own funds to pay for care. The brothers filed a motion to dismiss.

The New York Supreme Court, New York County, denies the motion to dismiss in part, holding that the nursing home could proceed with its breach-of-contract claim against Ernest, but not against Mark. According to the court, “while the agreement does not require [Mark and Ernest] to guarantee payment from their own resources, it requires that they ensure that [the nursing home] is paid from [their mother’s] assets, to the extent that they had control over them, and provides that a failure to do so constitutes a breach of the contract.” The court rules that because Mark did not sign the contract, the nursing home could not pursue a breach-of-contract claim against him.  

For the full text of this decision, go to: http://www.nycourts.gov/reporter/pdfs/2015/2015_31251.pdf

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September 24

Assisted Living Resident May Proceed with Breach-of-Contract Claim Against Long-Term Care Insurer

A U.S. district court in California denies summary judgment to a long-term care insurance company that refused to provide nursing home benefits to a claimant who was residing in an assisted living facility that had a nurse on call 24 hours a day. Gutowitz v. Transamerica Life Insurance Co. (U.S. Dist. Ct., C.D. Cal., No. CV-14-06656 MMM (JPRx), Aug. 14, 2015).

Erwin Gutowitz purchased a long-term care insurance policy in 1991. The policy included a daily nursing home benefit that defined a nursing home in part as a facility with a nurse on call at all times. In 2013, Mr. Gutowitz moved into a facility that was licensed as a residential care facility, not as a nursing home. While the facility did not provide skilled nursing care, there was a nurse on call 24 hours a day. The insurance company refused to cover Mr. Gutowitz’s care because he was not in a nursing home.

Mr. Gutowitz sued the insurance company for breach of contract, breach of good faith, and bad faith denial of insurance benefits. The nursing home filed a motion for summary judgment, arguing that the facility was not a nursing home because it was not licensed to provide nursing services on an ongoing basis.

The U.S. District Court, Central District of California, denies the insurance company summary judgment, holding that the terms of the contract were ambiguous. According to the court “a reasonable insured would have interpreted the policy as covering a facility that employed an on duty or on call nurse to provide nursing services in the facility on a ongoing basis to persons residing there.” The court concludes that there are issues of fact remaining as to whether the insurance company breached its contract, so the case may proceed to trial.

For a summary of the case and brief commentary by Penn State Dickinson Law professor Katherine C. Pearson, click here. 

For the full text of this decision, go to: http://sites.psu.edu/professorkatherinecpearson/wp-content/uploads/sites/17176/2015/08/Order-in-Gutowitz-v.-Transamerica-USDC-Central-District-of-CA-August-14-2015.pdf

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September 21

Medicaid Applicant Not Required to Exhaust Administrative Remedies Before Filing § 1983 Claim

An Ohio appeals court rules that a Medicaid applicant who filed a § 1983 claim in state court was not required to exhaust her administrative remedies before filing the claim, but her claim is dismissed because the state did not violate her due process rights. Rodefer v. McCarthy (Ohio App. Ct., Dist. 2, No. 2015-CA-1, July 31, 2015).

Velma Rodefer transferred a life estate in property to her son for $22,000. When she applied for Medicaid, the state found that the life estate should have been valued at $117,012 and assessed a transfer penalty. Ms. Rodefer challenged the way the penalty period had been calculated and her appeal was denied (Rodefer v. Colbert, Ohio Ct. App., Dist. 2, No. 2014-CA-3, May 22, 2015). 

Ms. Rodefer appealed the decision assessing the penalty period and requested a hearing. At the hearing, the state informed her that her appeal had been dismissed and that the only issue being discussed was a hardship waiver. The state eventually agreed to hold a hearing on the original appeal, a hearing that affirmed the penalty period. Ms. Rodefer filed a claim under 42 U.S.C. § 1983, alleging a violation of due process, among other things. (Ms. Rodefer died while the trial court case was pending.) The trial court dismissed her claim, holding that she needed to exhaust her administrative rights and that the state did not violate due process. Ms. Rodefer’s estate appealed the trial court’s decision.

The Ohio Court of Appeals, 2nd District, affirms, holding that while Ms. Rodefer was not required to exhaust her administrative remedies before bringing a § 1983 claim, her claim for violation of due process should be dismissed. According to the court, “the existence of an administrative appeals system does not preclude [Ms. Rodefer’s] ability to bring her § 1983 claim in state court.” But the court also holds that “although the hearing officers might not have addressed her specific arguments in its decisions, the complaint reflects that [Ms.] Rodefer was provided adequate notices and opportunities to be heard.”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-3052.pdf

Did you know that the ElderLawAnswers database now contains summaries of more than 2,000 fully searchable elder law decisions dating back to 1993?  To search the database, click here.  

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September 17

Regular, Moderate Coffee Drinking Tied to Better Brain Health in Seniors

A study of more than 1,400 Italian seniors finds links between patterns of coffee consumption and their risk for “mild cognitive impairment” — declines in memory and thinking that are often a precursor to dementia. The study could only point to associations, not cause-and-effect, the investigators said. But prior research has suggested that caffeine might impact neurological health. In the study, a team led by Dr. Vincenzo Solfrizzi of the University of Bari Aldo Moro, looked at the coffee consumption of 1,445 Italians aged 65 to 84. The participants’ mental health was also tracked for a median of three-and-a-half years. Reporting earlier this week in the Journal of Alzheimer’s Disease, the research team found that people who consistently drank about one or two cups of coffee per day had a lower rate of mild cognitive impairment (MCI) than those who never or rarely drank the brew. The beneficial association was not found among people whose habitual coffee intake exceeded two cups per day, Solfrizzi’s group added.

For the article from HealthDay, click here.

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September 14

Common medications for dementia could cause harmful weight loss

Medications commonly used to treat dementia could result in harmful weight loss, according to UC San Francisco researchers, and clinicians need to account for this risk when prescribing these drugs to older adults, they said. Their study appears online and in the August issue of the Journal of the American Geriatrics Society. “This is very relevant to patient care because unintentional weight loss in older adults is associated with many adverse outcomes, including increased rates of institutionalization and mortality, a decline in functional status, and poorer quality of life,” said lead author Meera Sheffrin, MD, geriatrics fellow in the University of California San Francisco (UCSF) School of Medicine at the UCSF-affiliated San Francisco VA Medical Center. “Our study provides evidence in a large, real-world population that cholinesterase inhibitors may contribute to clinically significant weight loss in a substantial proportion of older adults with dementia.” Weight loss also is a significant problem in dementia patients and linked to increased mortality. Data from randomized controlled trials suggests this weight loss may be an under-recognized side effect of cholinesterase inhibitors, but evidence is limited and conflicting.

For the article from EurekAlert, click here.

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