AAHSA Comments on OIG Draft Supplemental Compliance Program for Nursing
June 03, 2008

Mississippi Supreme Court Holds Primary Caretaker Can Bind Resident to Arbitration Agreement
Posted: Jan. 24, 2008
The Mississippi Supreme Court held that an arbitration agreement signed by a resident’s primary caretaker could bind the resident to arbitrate claims against a nursing facility.

Mississippi Supreme Court, Citing Lack of Evidence, Affirms Denial of Motion to Compel Arbitration
Posted: Jan. 24, 2008
The Mississippi Supreme Court affirmed a trial court’s denial of a motion to compel arbitration because the record lacked any evidence that the daughter who signed an arbitration agreement on behalf of her father on his admission to a nursing facility had the authority to do so.

Tennessee Appellate Courts Issue Three Decisions on Arbitration Provisions
Posted: Jan. 17, 2008
Following the Tennessee Supreme Court’s November 8, 2007 ruling in Owens v. National Health Corporation, et. al., three Tennessee appellate decisions have addressed arbitration agreements in long term care admission agreements.

Tennessee Supreme Court Holds Power of Attorney Authorized Representative to Sign Arbitration Agreement
Posted: Jan 10, 2008
The Tennessee Supreme Court ruled that a person who had a durable power of attorney for healthcare was authorized to sign a nursing facility admission contract that contained an arbitration provision.

Wife Lacked Authority to Sign Arbitration Agreement in Texas
Posted: Jan. 7, 2008
The Texas Court of Appeals vacated an arbitration award entered against the relatives and estate of a long term care resident. The court held that the wife of the resident had no authority to bind her husband and his estate to arbitrate claims against the nursing facility.

Kentucky Appellate Court Finds Alternative Dispute Resolution Agreement Signed by Daughter Not Valid
Posted: Jan 07, 2008
The Kentucky Court of Appeals affirmed a decision holding a daughter did not have the authority to bind her mother and her estate to an alternative disputer resolution (ADR) agreement the daughter signed on her mother’s behalf upon her admission to a skilled nursing facility.

Mississippi Federal Court Orders Parties to Arbitrate Dispute Against Nursing Facility
Posted: Jan. 2, 2008
A federal court in Mississippi held a daughter had the authority to bind her mother by signing an arbitration agreement upon her mother’s admission into a nursing facility. As a result, the court ordered the parties to arbitrate plaintiff’s claims against the nursing facility.

Mississippi Appellate Court Orders Resident Who Admitted Herself into Nursing Facility to Arbitration
Posted: Jan. 2, 2008
The Mississippi Court of Appeals reversed a trial court decision and held that a resident, who admitted herself into a Vicksburg nursing facility and was subsequently attacked by another resident, must arbitrate her claims against the facility.

Arbitration Provision Upheld and Binds Heirs in Case Against Mississippi Nursing Facility
Posted: Oct. 11, 2007
The Mississippi Court of Appeals reversed a trial court ruling and remanded a case to arbitration in a wrongful death suit filed against a skilled nursing facility. The court found that the heirs of Laurentine Barber were third-party beneficiaries of the arbitration agreement signed by her son, Mike Barber, upon her admission to Trinity Mission Health and Rehabilitation Center of Clinton (Trinity).

1972 IRS Ruling Describes How Homes for the Aged Qualify for an Exemption by Relieving More Than Financial Distress
Posted: August 24, 2007
The Internal Revenue Service (IRS) released a revenue ruling in 1972 that explains how an organization that operates a home for the aged may qualify for charitable status and therefore an exemption under the tax law (Internal Revenue Code (IRC) section 501(c)(3)) even if it does not provide direct financial assistance to the elderly.

Court Finds Arbitration Provision in Nursing Home Contract Unenforceable Despite Federal Arbitration Law
Posted: Aug. 22, 2007
Oklahoma’s highest court agreed that the Federal Arbitration Act (FAA) does not preempt an anti-arbitration provision in Oklahoma’s Nursing Home Care Act (NHCA) when applied to Grace Living Center’s nursing home agreement. The home’s owners argued that the agreement, which contains an arbitration clause, involves interstate commerce because the home receives federal Medicare funds and therefore the FAA should apply.

Court Found Half–Sister Couldn’t Bind Mentally Competent Brother to Terms of Nursing Home Contract
Posted: Aug. 22, 2007
Cephus Coleman, Jr., a paralyzed World War II veteran, had been living with his half–sister, Anne Donaldson. Donaldson needed help caring for Coleman and signed an admission contract on Coleman’s behalf for him to become a resident at Grenada Living Center, in Grenada, Mississippi. Coleman resided at Grenada from July 2003 until his death in January 2004. Coleman’s son then sued Grenada, which sought to compel arbitration. The trial court found, and the appeals court agreed, that co contract existed between Coleman and Grenada, rendering the arbitration agreement inapplicable.

New Web Tool Helps Health Care Employers Understand OSHA Regulations
Posted: Aug. 22, 2007
The Occupational Safety and Health Administration (OSHA) released a guide to various compliance assistance resources for health care employers. The new health care module of OSHA’s Compliance Assistance Quick Start tool covers OSHA requirements for the workplace and how to identify and prevent hazards at health care facilities, including reporting requirements. It also identifies a number of sector–specific resources including those for nursing homes and personal care facilities.

Appeals Court Finds Denial of Summary Judgment to Compel Arbitration Improper
Posted: Aug. 09, 2007
Due to conflicting testimony over whether an arbitration agreement was read, explained, and/or signed by an illiterate man upon his admission to a Tupelo, Mississippi nursing facility, the Fifth Circuit Court of Appeals vacated the lower court’s denial of a motion to compel arbitration and remanded the case for trial to resolve the fact issues.

Arkansas Supreme Court Affirms Certification of Class in Lawsuit Against Nursing Facility
Posted: July 03,2007
In September 2005, Annette Thomas (Thomas) as guardian of the estate of Helen Cook and all others similarly situated filed a complaint against Beverly Enterprises–Arkansas and Batesville Nursing and Rehabilitation Center (Beverly). Thomas alleged that Beverly did not meet its obligation to care for residents’ basic daily needs, by failing to properly and adequately staff the facility and provide a clean, safe living environment.

Fourth Circuit Court Finds Nursing Facility Neglected To Provide Proper Care To Residents
Posted: July 30, 2007
The U.S. Court of Appeals for the Fourth Circuit (the Court) affirmed the Department of Health and Human Services’ decision that Liberty Commons Nursing and Rehab Center – Johnson (Liberty) neglected to provide proper care to its residents and its noncompliance with federal regulations was at the "immediate jeopardy" level.

Arbitration Agreement Signed by Brother on Behalf of Resident Found Valid
Posted: July 30, 2007
Alabama’s high court ruled July 20 that an arbitration agreement signed in conjunction with a nursing home’s admission agreement is valid, even if the agreement was not signed by the resident but rather by the resident’s authorized representative.

Court Agrees Newly Discovered Facts Show Spousal Authority to Sign Arbitration Agreement
Posted: July 30, 2007
Florentine Ruesga signed admission documents, including an arbitration agreement, on behalf of her husband upon his admittance to Desert Life Rehabilitation and Care Center in Tucson, Ariz., following a massive stroke and heart attack that left him virtually non–responsive. Almost two years later, Florentine’s husband died and she sued the center for negligence.

Court Found Mother Could Bind Incapacitated Daughter by Signing Arbitration Agreement
Posted: July 30, 2007
Delores Conegie suffers from Huntington’s chorea, a condition that left her too incapacitated to sign the nursing home admission agreement upon her entrance to the Autumn Leaves skilled nursing facility in Greeneville, Mississippi. Instead, Conegie’s mother signed the agreement, which contained an arbitration clause, on her behalf. After receiving injuries while being cared for at the facility, Conegie filed an action for damages against JP Morgan, which she alleged to be in control of the facility. JP Morgan sought to compel arbitration, but the district court ruled that Conegie’s mother didn’t have the authority to bind Conegie, invalidating the agreement.

Federal District Court Rules Arbitration Provision in Admission Agreement Invalid
Posted: July 26,2007
The United States District Court for the Eastern District of Texas (the “Court”), rejected the request of Nexion Health, Inc. d/b/a Sherman Healthcare Center (“Sherman”) to arbitrate the claims filed in a case by Larry and I.A. Patterson (“Patterson”) against Sherman.

Missouri Supreme Court Rules that Nursing Home Employee be Placed on Employee Disqualification List for Abusing a Resident
Posted: June 18, 2007
The Supreme Court of Missouri (the "Court") reversed the decision of a Cooper County Circuit Court, which determined that Alice Klein ("Klein") not be placed on the state employee disqualification list ("EDL") for "recklessly abusing" a nursing home resident.

Ohio’s Patients’ Bill of Rights Allows Suit Against County-Operated Nursing Home, But Not its Employees
Posted: June 25, 2007
The Ohio Supreme Court found that an unlicensed county nursing home could not claim political subdivision immunity as a way of escaping liability for possibly violating a patient’s rights under Ohio’s Nursing Home Patients’ Bill of Rights (ONHPBR) statute, while the home’s allegedly negligent employees could escape liability under the same statute.

Nursing Home Gets Okay to Discharge Patient for Unpaid Bills Incurred Prior to Medicaid
Posted: June 14, 2007
The Ohio Court of Appeals agreed with Dayspring of Miami Valley, a nursing home facility in Ohio that, according to the plain language of the governing state statute, it has the right to discharge a patient for her unpaid bill despite findings by the Department of Health that Dayspring contributed to the difficult situation.

Eighth Circuit Court of Appeals Denies Nurse’s Claim of Race Discrimination
Posted: June 13, 2007
A district court’s summary judgment order denying a nurse’s claim of employment discrimination was affirmed by the United States Court of Appeals in the Eighth Circuit (the Court). The nurse was unable to show that there was a racial animus behind her employer’s explanation of employee misconduct or produce proof of disparate treatment.

District of Columbia Circuit Court of Appeals Reverses NLRB Decision on Supervisor Status
Posted: June 13, 2007
After petitioner’s request for review, the United States Court of Appeals of the District of Columbia Circuit ("the Court") reversed a decision of the National Labor Relations Board ("the Board") that stated the Petitioner was a supervisor under Section 2(11) of the NLRA, and remanded it for reconsideration.

Court Enjoins HHS from Terminating Medicare Agreement with Nursing Facility Found in Noncompliance with Regulations
Posted: June 12, 2007
Evergreene Nursing Care Center, a skilled nursing facility located in Stanardsville, Va., was cited with five level "D" deficiencies following a May 26, 2005, inspection resulting in its termination from the Medicare program effective June 27, 2005, by the Centers for Medicare and Medicaid Services (CMS).

Florida Arbitration Agreement Not Enforceable Because Void Against Public Policy
Posted: May 23, 2007
Description: A Florida appellate court reversed a trial court order compelling arbitration of claims against a nursing facility. The arbitration provision in the admissions agreement was found void as against public policy because it would require the plaintiff to give up certain rights and remedies available under Florida’s Nursing Home Residents Act (NHRA) and the daughter of the nursing facility resident did not sign the agreement in her capacity as her mother’s representative.

Federal Court Denies Nurse’s Claim for Intentional Exposure to Infection
Posted: May 23, 2007
A nurse’s claim against a nursing facility for the intentional tort of knowingly exposing her to a dangerous condition was rejected by a federal court in Ohio. She could not show proof that her employer knew of an infection that caused injury to her, so the court granted summary judgment in favor of the nursing facility.

Avoid Legal Pitfalls in Your Contracts with Assisted Living and Hospice
Posted: April 27, 2007
In this article, "Questionable Practices By Hospices And Nursing Homes Under Health Care Fraud And Abuse Rules", the law firm of Reinhart, Boerner, Van Deuren, s.c. outlines how to protect your facility against violations of federal anti-kickback and civil monetary penalties statutes.

Nursing Facility Entitled to Review Before Termination from Medicare & Medicaid Agreements
Posted: April 24, 2007
A South Carolina federal court granted a preliminary injunction allowing a nursing facility to continue to operate until a decision on the termination of its Medicare and Medicaid provider agreements is issued. An appeal of a CMS decision to terminate the facility’s provider agreements is pending before an Administrative Law Judge (ALJ).

Minnesota Court of Appeals Rules Children of Nursing Facility Resident Not Responsible for Unpaid Bill
Posted: April 12, 2007
A Minnesota nursing facility is unable to recover unpaid bills from a resident’s sons because neither qualified as a “responsible party” under a state statute. In Extendicare Health Services, Inc. v. Henderson, the Minnesota Court of Appeals affirmed a lower court ruling denying payment to the nursing facility because the resident’s sons were not found a responsible party and the facility failed to make a proper claim against the resident’s estate for the unpaid bills.

Arbitration Provision Upheld Despite Finding Other Contract Clauses Invalid in Mississippi Nursing Facility Case
Posted: April 10, 2007
The Mississippi Supreme Court reversed a lower court ruling and compelled arbitration in a wrongful death suit against a skilled nursing facility. The court struck unconscionable clause but left the remainder of the agreement intact, including the arbitration provision.

Jury Verdict on Retaliatory Discharge Upheld by Texas Appeals Court
Posted: April 10, 2007
Description: A jury verdict in favor of a nurse discharged by a skilled nursing facility after reporting patient abuse was affirmed by the Texas Court of Appeal, Tenth District. Although the decision was affirmed, the Court of Appeal reversed a damages award against one of the defendants.

Arbitration Agreement Signed by Son Upheld by Massachusetts High Court
Posted: April 10, 2007
An arbitration agreement signed by a nursing home resident’s son, who had a valid health care proxy and durable power of attorney, is enforceable the Massachusetts Supreme Judicial Court ruled in a recent case reversing a trial court judge.

Sixth Circuit Court of Appeals Upholds Civil Money Penalties Against Ohio Nursing Facility
Posted: April 06, 2007
The Sixth Circuit Court of Appeals affirmed a July 2005 Departmental Appeals Board (DAB) decision upholding civil money penalties (CMP) in the amount of $80,300 against Lakeridge Villa Health Care Center (Lakeridge), an Ohio skilled nursing facility. In an unpublished decision, the court found that the Centers for Medicare & Medicaid Services (CMS) acted reasonably in ordering fines against Lakeridge for failing to comply with provider requirements between August and October 1999.

California Appeals Court Rules Health Care Power of Attorney Sufficient to Bind Parties to Arbitration Agreement
Posted: April 06, 2007
A daughter of a long-term care facility resident, who was the designated agent under a statutory health care power of attorney, can bind the parties to arbitration under a recent California Court of Appeals ruling.

Arbitration Agreement Not Enforceable When Signed by Spouse with No Authority
Posted: April 06, 2007
An arbitration provision in an admission contract signed by the resident’s spouse does not prevent the resident from litigating the claim against the facility. The California Court of Appeals, Fourth District affirmed a lower court decision voiding an arbitration agreement because the spouse had no legal authority to sign the agreement.

Arbitration Not Required When Resident’s Daughter Lacked Authority to Sign Agreement
Posted: April 02, 2007
A federal court in Mississippi held that a resident’s daughter had no authority to sign an arbitration agreement as part of her admission into a long-term care facility and denied a defense motion to dismiss and compel arbitration.

Ohio Appeals Court Upholds Arbitration Agreement Despite Finding it Procedurally Unconscionable
Posted: April 02, 2007
Cynthia Manley, as personal representative of the estate of her mother Patricia Manley (“Manley”), sued Personacare of Ohio d/b/a Lake Med Nursing Home and Rehabilitation Center (“Personacare”) alleging wrongful death. Patricia Manley admitted into the Lake Med facility after a one-week hospital stay in April 2004. She subsequently fell several times and it is alleged she died as a result of treatment she received from Personacare. Personacare moved to enforce an arbitration clause that Patricia Manley signed upon her admission to the facility. The trial court granted Personacare’s motion to send the case to arbitration and Manley appealed.

North Carolina Nursing Home Must Produce Incident Reports in Litigation
Posted: April 02, 2007
A North Carolina nursing home sued in a wrongful death case must produce documents relating to a resident’s falls prepared by its nursing staff. The North Carolina Court of Appeals affirmed the trial court’s decision that such documents were not part of the facility’s quality assurance committee and thus not protected from discovery under the state’s peer review statutes.

Civil Money Penalty Reasonable For Failure to Supervise and Report and Investigate Abuse
Posted: Nov. 29, 2006
The Department of Health and Human Services Departmental Appeals Board (DAB) upheld an Administrative Law Judge’s (ALJ) findings that there was a reasonable basis for imposing a civil money penalty (CMP) and that the amount imposed was reasonable against North Carolina provider Britthaven of Smithfield.

Civil Money Penalty Upheld When Elopement of Two Residents Created Immediate Jeopardy
Posted: Nov. 29, 2006
The Department of Health and Human Services Departmental Appeals Board (DAB) upheld an Administrative Law Judge’s (ALJ) decision imposing a $2000 civil money penalty (CMP) on Aase Haugen Home, Inc. for failing to provide “adequate supervision and assistance devices to prevent accidents,” which resulted in immediate jeopardy to residents.

Termination of Provider Agreement Appropriate Despite Plan of Correction
Posted: Nov. 29, 2006
Michigan nursing facility Rosewood Living Center, appealed an Administrative Law Judge (ALJ) decision upholding enforcement of civil money penalties (CMPs) and termination of its participation in the Medicare program. The Department of Human Service Departmental Appeals Board (DAB) affirmed the ALJ’s decision that the CMPs and termination was proper.

Mississippi Supreme Court Finds Nursing Home Administrator and Licensee Did Not Owe Duty of Care to Residents
Posted: November 28, 2006
In Howard v. Estate of Harper and Howard v. Estate of Thread, the Mississippi Supreme Court held that a nursing home administrator and facility licensee do not owe a duty of care or a fiduciary duty to nursing home residents, finding such a requirement duplicative of the duties already owed by the nursing home business owner or proprietor.

Nursing Home Resident’s Injury During “Therapeutic Bath” Can Give Rise to Medical Malpractice Liability
Posted: June 6, 2006
The Pennsylvania Supreme Court found that the provision of a bath to a physically and mentally disabled nursing home resident for purposes of therapy to relieve bed sores constituted the furnishing of “medical services” and was thus sufficient to trigger state statutes regulating professional malpractice liability.

A Federal Court in Washington Finds Incident Reports Discoverable Because Not Made Exclusively for Healthcare Evaluation Purposes
Poseted: May 26, 2006
In Branco v. Life Care Centers of America, the US District Court for the Western District of Washington found a facility’s incident reports were discoverable, despite a Washington statute protecting confidentiality, because they were generated for both healthcare evaluation and risk assessment.

Texas Appeals Court Holds Facility May Have Duty to Assist Independent Contractor Nurse
Posted: May 24, 2006
A Texas Court of Appeals held that a facility may owe a nurse employed with its independent contractor a duty in assisting with her job functions if the facility has voluntarily assisted her in the past. Under a contract, Vitas Healthcare of Texas provided Granbury Care Center hospice patients with nursing care. Shelby, a nurse employed by Vitas, requested assistance from a Granbury employee to transfer a patient weighing over 300 pounds from bed to wheelchair. The Granbury employee refused, and Shelby was injured while transferring the patient.

Maryland High Court Holds Agent Not Personally Liable for Resident’s Debts
Posted: May 24, 2006
Maryland’s highest court determined that a resident’s child—or any other person acting as an agent on behalf of the resident—who enters into a contract on the resident’s behalf is not liable to the facility for any debts incurred.

Ohio Appeals Court Holds Information Not Used for Quality Assurance Must Be Revealed in Wrongful Death Suit
Posted: May 24, 2006
In Smith v. Manor Care of Canton, Inc., the Ohio Court of Appeals, Fifth District, held that information surrounding the death of a resident, which was not part of a quality assurance program or peer review committee, must be revealed in a wrongful death lawsuit.

Unsigned Arbitration Clause Found Invalid
Poseted: May 05, 2006
The Mississippi Supreme Court affirmed a lower court ruling not to enforce an arbitration provision within a nursing home admission contract because the patient’s representative chose not to sign the signature line immediately following the clause.

Tennessee Court of Appeals Holds Trust’s Tax Deeds Available Assets to Determine Medicaid Eligibility
Posted: May 05, 2006
A widow’s appeal of a Tennessee Department of Human Services (DHS) denial of her deceased husband’s Medicaid application was affirmed because tax deeds held in her revocable trust counted as available assets in determining eligibility. Miley Bell’s arguments that the tax deeds were &auot;unavailable" and income-producing were rejected by the Tennessee Court of Appeals.

Discovery of Nursing Home Incident Reports in Wrongful Death Action Upheld
Posted: March 03, 2006
An Ohio nursing home resident, with a documented history of falls, died after being found at the bottom of the stairwell in a pool of blood with fatal head, brain, and spinal cord injuries. Her elderly sister did not learn of the cause of her death until she received a copy of the death certificate two months later. The resident’s heirs did not learn of the facts surrounding the incident until two years after her death.

Court Enforces Admission Contract Requiring Payment by Responsible Party
Posted: March 02, 2006
In 1998, Willye Horton admitted her 96-year-old father, Willie Bennings, to the Care Center of Kansas City d/b/a Swope Ridge Geriatric Center (Care Center). Horton, acting as his agent under a durable power of attorney, completed the paperwork upon his admission. After his death, the Care Center sought collection of Bennings’ outstanding bill of $14,773. Horton refused to pay the balance and Care Center filed suit to collect based on the express provisions of the admission agreement.

Texas Supreme Court Rules Action Arising from Sexual Assault is Medical Malpractice Claim and Barred by Statute of Limitations
Posted: March 02, 2006
In Diversicare v. Rubio, the Texas Supreme Court held that claims alleging a nursing home failed to protect an elderly, demented resident from sexual assault fall under the state’s medical malpractice law rather than negligence or premises liability. As a result, such claims are subject to a 2-year statute of limitations and there is no tolling for mental incompetence. Since the sexual abuse claims occurred more than 2 years before filing suit, the court dismissed that portion of the plaintiff’s complaint.

Ohio Appeals Court Upholds Enforcement of Arbitration Clause Signed by Resident’s Daughter
Posted: March 03, 2006
The Ohio Court of Appeals ruled that an arbitration clause in an admission agreement signed by a resident’s daughter was enforceable and required her to arbitrate her negligence claims against her former nursing home, the Ohio Extended Care Center (OHECC).

Transfer of Assets for Less than Fair Market Value Results in Penalty Period
Posted: March 02, 2006
In September 2002, one year before entering a nursing home, a resident transferred two parcels of land to her daughter by quick-claim deed. The deeds, however, were not recorded until November 2003, a month after the resident entered a nursing home. The resident’s daughter applied for Medicaid benefits on behalf of her mother the day of her admission. The Ohio Department of Job and Family Services approved the application, but imposed a six-month period of restricted eligibility that ran through March 2004. After an administrative appeal and hearing, the six-month period was upheld by the trial court.

Washington Federal District Court Upholds CMS Regulations on Feeding Assistants
Posted: October 26, 2005
A federal district court recently granted summary judgment to the Secretary of Health and Human Services (HHS) against a challenge to regulations on the use of paid "feeding assistants" in federally regulated nursing homes. The regulations promulgated by the United States Department of Health and Human Services' Center for Medicare & Medicaid Services (CMS) allow long term care facilities to use feeding assistants to supplement the services of certified nurse aides (CNAs) in certain circumstances.

Texas Supreme Court Holds Medicare Payments Constitute Interstate Commerce to Invoke the Federal Arbitration Act
Posted October 21, 2005
The Texas Supreme Court determined that Medicare payments constitute interstate commerce bringing an admission contract within the Federal Arbitration Act (FAA).

Mississippi Supreme Court Upholds Arbitration Clause in Nursing Home Admissions Agreement Despite Finding Other Agreement Provisions Unconscionable
Posted Octboer 20, 2005
An arbitration clause in a Mississippi nursing home admissions agreement is enforceable despite a determination that the agreement is an adhesion contract and another provision limiting liability and punitive damages is not enforceable. In Vicksburg Partners, L.P. v. Stephens, the Mississippi Supreme Court analyzed provisions of the admissions agreement separately and upheld the arbitration clause notwithstanding the parties' unequal bargaining power.

Agent Authorized to Enter Into Binding Arbitration Agreements UsingCalifornia Durable Power of Attorney
Posted October 19, 2005
An agent under a durable power of attorney for healthcare has the power to bind the principal to arbitration agreements with a health care facility, the California Court of Appeals, Second District held in Garrison v. Superior Court of Los Angeles County, (Cal. App. No. B179957, Aug. 29, 2005).

Ohio Court of Appeals Upholds Decisions That Annuity Purchases Constituted Improper Transfers
Posted: October 13, 2005
Annuities purchased by three elderly women seeking Medicaid coverage were upheld as improper transfers in the case of Fire v. Ohio Dep't of Job and Family Services. The similar cases of Hilda Fire, Beryl Loudin, and Martha Eckelberry were consolidated into one appeal that addressed whether their annuity purchases were improper transfers in determining Medicaid eligibility.

Tennessee Nursing Home Allowed to Recover From Resident’s Gifts to Children
Posted: October 10, 2005
A Tennessee Appellate court affirmed a decision allowing a nursing home to recover funds owed by a former resident from the resident's daughters who acquired proceeds from the sale of his home. In Beverly Healthcare Brandywood v. Gammon, the court ruled Beverly was entitled to a partial set aside of gifts because they constituted fraudulent conveyances to avoid payment of Beverly's charges.

Florida Nursing Homes Experiencing Fewer Adverse Incidents and Lawsuits According to State Report
Posted: October 10, 2005
The number of adverse incidents and lawsuits initiated against Florida nursing homes are decreasing since broad reforms were enacted in 2001. In its July 2005 report to the legislature titled Nursing Home and Assisted Living Facility: Adverse Incidents & Notices of Intent (2005 Report), the Florida Agency for Health Care Administration (Agency) noted a decline in the number of adverse incident reports, notices of intent to litigate, and serious deficiency citations. Although the report cautions that these declines cannot be attributed to a single factor, the reform measures implemented in 2001 appear to be working. The 2001 reform measures include increased staffing levels, more frequent and thorough visits by Agency nurse monitors, mandatory risk management programs, and enhanced penalties for non-compliance.

Spousal Refusal in Medicaid Eligibility Upheld by Second Circuit Court of Appeals
Posted: September 2, 2005
In Morenz v. Wilson-Coker, the Second Circuit Court of Appeals held that a Connecticut nursing home resident applying for Medicaid may assign support rights to the state and his wife may exercise her right of spousal refusal.

New Jersey Divorce Order Does Not Alter Medicaid Spousal Income Allowance
Posted: September 2, 2005
A New Jersey appeals court held a court-ordered support payment from a limited divorce may not be used to increase the amount of income a community spouse receives from an institutionalized Medicaid recipient.

Alabama Plaintiff Not Required to Arbitrate Non-Contract Based Claims
Posted: August 10, 2005
In Springhill Nursing Homes, Inc. v. McCurdy, the Supreme Court of Alabama held that a former resident was not required to arbitrate claims against a nursing home because she did not assert any breach of contract claims and did not seek any benefits of the admission contract she never signed.

Florida Appeals Court Finds Nursing Home Arbitration Clause Void as Contrary to Public Policy
Posted: August 10, 2005
The Florida District Court of Appeals, Fourth District, held that an arbitration clause in a nursing home admission agreement significantly limited the remedies available under the state Nursing Home Residents Act (NHRA) and was void as contrary to public policy. In addition, the statutory health care proxy had no authority to bind the nursing home patient to arbitrate claims.

Court Finds Acceptance of Medicaid Payment Invalidates Lien on Personal Injury Award
In Spectrum Health v. Bowling Irrevocable Trust, decided June 14, 2005, the U.S. Court of Appeals for the Sixth Circuit held that a long-term care facility could not enforce an otherwise valid lien on a personal injury award to recover medical costs, if the long term care facility previously accepted Medicaid reimbursement payments on behalf of that beneficiary.

Tenth Circuit Holds Social Security Funds in Special Needs Trust May Be Used for Medicaid Co-pay
In Reames v. Oklahoma, the U.S. Court of Appeals, 10th Circuit, held that while Social Security funds in a Special Needs Trust could not be used to determine eligibility for Medicaid, these funds could be used to satisfy the Medicaid recipient’s co-payment responsibility.