March 31

Resident’s Son Who Made Improper Transfers Did Not Owe Nursing Home Fiduciary Duty

A Massachusetts appeals court rules that the son of a nursing home resident who breached his fiduciary duty to his mother by transferring assets to himself is not liable to the nursing home for his mother’s unpaid bill because he did not owe the nursing home a fiduciary duty. Merrimack Health Group v. Heroux (Mass. App. Div., No. 15–ADMS–10024, Feb. 25, 2016).

Muriel Heroux named her son, Robert, as her agent under a power of attorney and he transferred money to himself. When Ms. Heroux entered a nursing home, she applied for Medicaid. The state denied benefits based on the transfers to her son.

After Ms. Heroux died without paying the nursing home for two months of care, the nursing home sued Mr. Heroux for breach of contract and breach of fiduciary duty, arguing that he was liable for the nursing home’s unpaid expenses. The trial court dismissed the breach of contract claim, holding that there was not a contract between the nursing home and son, but it found that Mr. Heroux breached his fiduciary duty to the nursing home by transferring money from his mother’s account to himself. Mr. Heroux appealed.

The Massachusetts Appellate Division reverses, holding that Mr. Heroux is not liable for breach of fiduciary duty because he did not have a fiduciary relationship with the nursing home. According to the court, while Mr. Heroux breached his fiduciary duty to his mother, the nursing home must show that Mr. Heroux owed it a fiduciary duty in order to succeed.

For the full text of this decision, click here.

March 28

Man Doesn’t Have Standing to Challenge Discharge of Brother’s Debt to Nursing Home

The U.S. Court of Appeals for the Third Circuit rules that the son of a nursing home resident does not have standing to challenge the dischargeability of his brother’s debt to the nursing home because he is not a creditor of his mother. In re: Skinner (U.S. Ct. App., 3rd Cir., No. 15-2590, March 4, 2016).

Dorothy Skinner lived in an assisted living facility until she was evicted for non-payment. The facility sued Ms. Skinner’s sons, Thomas and William, under Pennsylvania’s filial responsibility law. The court entered a default judgment against Thomas for $32,224.56. Thomas filed for bankruptcy and sought to discharge the debt.

William filed a claim in the bankruptcy court, arguing that Thomas’s debt was non-dischargeable because it resulted from fraud and embezzlement. William argued that Thomas used their mother’s assets for his personal expenses, so if William was liable to the assisted living facility, he was entitled to be reimbursed by Thomas.  A U.S. bankruptcy court dismissed the claim, holding that William did not have standing because he was not a creditor of the debtor, and a U.S. district court affirmed. William appealed.

The U.S. Court of Appeals, Third Circuit, affirms, holding that William does not have standing to challenge the dischargeability of Thomas’s debts. The court rules that Pennsylvania’s filial support law does not support William’s claim because there is no right of contribution or indemnification under the support law. In addition, the court concludes that William does not have a claim against Thomas under the state’s fraudulent transfer act because he is not a creditor of his mother.

For the full text of this decision, go to:

March 24

Class Certified in Case Against LTC Insurer that Denied Coverage to Assisted Living Residents

A U.S. district court in Connecticut certifies a class action against a long-term care insurance company by policyholders who claim they were unfairly denied coverage because they lived in a managed care community or assisted living facility. Gardner v. Continental Casualty Company (U.S. Dist. Ct., D. Conn., No. 3:13cv1918 (JBA), March 1, 2016).

A group of individuals purchased long-term care insurance from Continental Casualty Company. The policies provide that in order to qualify for benefits, claimants must demonstrate that the facility they live in meets the definition of a long-term care facility. The policy defines a long-term care facility as one that is licensed by the state. The individuals moved into managed care communities or assisted living facilities and applied for benefits. The company denied benefits on the grounds that the facilities were not licensed facilities.

The individuals filed a lawsuit against the company, arguing that the insurance company wrongly denied them benefits. They asked the court to certify a class of all people who currently own two specific types of long-term care insurance policies and a subclass of all people who owned long-term care insurance and were denied care at a managed care community or assisted living facility.

The United States District Court, District of Connecticut, grants class certification. The court rules that the class is easily ascertainable and including all current policyholders is not too broad. In addition, the court finds that the subclass is not too small to meet the numerosity requirement because the class will consist of at least 29 people. The court also rules that the plaintiffs have demonstrated commonality and typicality because they have shown that class members’ claims depend on a common contention that is capable of class-wide resolution.

For the full text of this decision, go to:

March 21

Plaintiffs Go Back to Court to Enforce Settlement Ending Medicare’s Improvement Standard

The plaintiffs in Jimmo v. Sebelius, the landmark settlement that was supposed to end Medicare’s “improvement standard,” are back in court to try to force the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation under the settlement.

Under the settlement agreement in Jimmo v. Sebeliusthe federal government agreed to end Medicare’s longstanding practice of requiring that beneficiaries with chronic conditions and disabilities show a likelihood of improvement in order to receive coverage of skilled care and therapy services.  Medicare is required to cover skilled care as long as the beneficiary needs it, even if the care would simply maintain the beneficiary’s current condition or slow further deterioration. 

Medicare conducted an educational campaign and updated its benefit policy manual, but three years after the settlement, the Center for Medicare Advocacy is still getting reports that many Medicare providers continue to deny coverage to individuals who are not improving. In response, the Center for Medicare Advocacy and Vermont Legal Aid, co-counsels for the original plaintiffs in the Jimmo case, have filed a motion for resolution of non-compliance with the settlement order in district court in Vermont.

“We are returning to the court to ask for relief that CMS has refused to provide,” said Gill Deford, Director of Litigation for the Center for Medicare Advocacy, and lead counsel for the plaintiffs. “For over two years, we have tried repeatedly to get Medicare to take additional steps to make sure that providers and contractors knew that the days of using an Improvement Standard test have ended but the agency would not do anything. We’ve provided overwhelming evidence that providers and contractors were not educated about the Settlement Agreement and that Medicare beneficiaries were still having their coverage terminated.”

March 17

Medicaid’s Anti-Lien Provision Applies Only to Living Medicaid Recipients

A Florida court of appeals rules that Medicaid’s anti-lien provision does not apply to a Medicaid lien imposed on a Medicaid recipient’s property after the recipient dies. Estate of Hernandez v. Agency for Health Care Admin. (Fla. Ct. App., 3rd Dist., No. 3D14-2115, Feb. 17, 2016).

Betsy Hernandez died of a rare condition. Her estate filed a wrongful death lawsuit against the hospital that treated her. The hospital agreed to settle the lawsuit for $700,000, and Medicaid placed a lien on the settlement to recoup medical expenses paid on Ms. Hernandez’s behalf.

The Medicaid agency claimed it was entitled to $262,500 before any wrongful death apportionment. The estate argued that the agency sought money allocated to survivors and that under Arkansas Department of Health and Human Services, et al. v. Ahlborn (547 U.S. 268 (2006)), states cannot assert a lien on portions of a settlement not allocated to medical expenses. The trial court denied the estate’s motion for a hearing, and the estate appealed.

The Florida Court of Appeals, 3rd District, affirms, holding that “the Medicaid Act’s anti-lien provision does not apply to a Medicaid lien imposed against the property of a Medicaid recipient after her death.” The court holds that Ahlborn and Wos v. E.M.A (U.S., No. 12-98, March 20, 2013) do not apply because Medicaid’s anti-lien provision applies only to living Medicaid recipients.

For the full text of this decision, go to: