Little-known hospital billing practice can negate Medicare coverage of later nursing-home stay

"Under rules implementing the Affordable Care Act, hospitals can be penalized if too many patients return for further treatment within 30 days of being discharged.
So, to avoid the penalty, a number of hospitals are admitting return patients under “observation status” to keep them out of the readmission statistics. Although patients get the same treatment, taxpayers save money because the hospitals generally get reimbursed at a lower “outpatient” rate for observation patients, the Wall Street Journal (sub. req.) reports.
However, the practice can prove costly for consumers. As outpatients, they may be required to cover a larger portion of the bill than they would be charged as inpatients. And, for those who need to spend time at a nursing home after being released from the hospital, Medicare won’t pay the bill. Under the program, individuals must be formally admitted to the hospital for three days prior to the nursing home stay for it to be covered by Medicare, and “observation” patients don’t meet that requirement."
More.

Originally posted in ABA Journal News by Martha Neil, Dec. 3, 2015

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Healthy law, citrus canker, and new rules for e-payments to save MDs billions, with grilled squash dipped in rosemary oil

Insurance -- Uninsured motorist -- Attorney's fees -- Contingent award -- Appeals -- Certiorari -- Order awarding contingent attorney's fees in action against insurer for uninsured motorist benefits, although a departure from essential requirements of current law, will not cause any irreparable damage to insurer -- Order is essentially preemptive determination of issues that may or may not arise in subsequent action for bad faith, and the relevance of the order in a subsequent lawsuit is a matter for resolution by judge in that proceeding
GEICO INDEMNITY COMPANY, Petitioner, v. POLLIE DeGRANDCHAMP, Respondent. 2nd District.

Automotive: LAND ROVER'S STRIKE MOTION 'BASELESS,' PLAINTIFFS SAY, In re Land Rover LR3 Tire Wear Prods. Liab. Litig., 19 No. 9 Westlaw Journal Class Action 15, Westlaw Journal Class Action October 22, 2012 Plaintiffs who say certain Land Rover vehicles have wheel alignment problems have told a California federal judge that the automaker's motion to dismiss their class-action claims misstates the law and has no merit. Jaguar Land Rover North America wants U.S. District Judge Andrew J. Guilford of the Central District of California to toss all claims involving a putative nationwide class. But the plaintiffs counter in their opposition brief that Land Rover's motion is "premature and baseless".

Property Compensation: MIAMI APPEALS COURT OKS CLASS IN CITRUS CANKER SUIT, Fla. Dep't of Agric. & Consumer Servs. v. Lopez-Brignoni, 19 No. 9 Westlaw Journal Class Action 16, Westlaw Journal Class Action October 22, 2012 More than 80,000 Miami-Dade county homeowners can seek compensation as a class from the state for nearly 248,000 healthy trees the Florida Department of Agriculture cut down to eradicate citrus canker disease, a state appeals court has held. In a 2-1 decision, the 3rd District Court of Appeal affirmed a Miami-Dade County trial judge's class certification in the decade-old litigation in which the plaintiffs seek replacement costs for the trees.

Health Care Reform: HHS: NEW RULES FOR ELECTRONIC PAYMENTS WILL SAVE DOCTORS BILLIONS, 18 No. 3 Westlaw Journal Health Care Fraud 5, Westlaw Journal Health Care Fraud September 26, 2012 New federal rules covering electronic claims payments will "cut red tape" and could save health care providers and insurers $9 billion over the next 10 years, the U.S. Department of Health and Human Services says. The interim final rules, which are required under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, will make it easier for doctors to receive payment electronically and reduce "inefficient manual administrative processes," according to an Aug. 7 statement from HHS.

Torts -- Settlement -- Medicaid lien -- Medicaid recipient has right to seek a judicial determination of what portion of a personal injury settlement is subject to a Medicaid lien and reimbursement to the state -- Section 409.910 creates a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when the Agency for Health Care Administration does not participate in the settlement agreement, and U.S. Supreme Court ruling in Arkansas Department of Health & Human Services v. Ahlborn does not invalidate the allocation set forth in that statute -- However, a plaintiff should be afforded an opportunity to seek reduction of Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses -- Conflict certified
ALAN ROBERTS, Appellant, v. ALBERTSON'S INC., B.H.A., L.L.C., and SEBASTIAN RAPISARDA, Appellees. 4th District.

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Insurance, restraint of trade, restraint of reproductive rights and fresh rosemary bread with mango chive and cucumber chutney

Insurance -- Condominiums -- Assignment of claims -- Neither Declaration of Condominium nor Articles of Incorporation prohibited Association from assigning potential insurance claims for hurricane damage to former unit owners -- Trial court erred in dismissing former unit owners' claims against insurer -- Trial court did not abuse discretion in certifying unit owners as a class
RAMON CASTELLANOS, ET AL., Appellants, vs. CITIZENS PROPERTY INSURANCE CORPORATION, ET AL., Appellees. 3rd District.

Workers' compensation -- Compensable accidents -- Fall on employer's premises -- Where it was undisputed that claimant was actively engaged in work-related activity at time of accident, and there were no competing causes of accidental injury, claimant's work activity was de facto the major cause -- Judge of compensation claims erred in finding that claimant failed to establish that work performed within her employment caused her injury
VALERIE WALKER, Appellant, v. BROADVIEW ASSISTED LIVING and CHARTIS CLAIMS, INC., Appellees. 1st District.

Criminal Acts: SANDUSKY'S HOMEOWNERS POLICY DOESN'T COVER SEX-ABUSE DEFENSE COSTS, INSURER SAYS, State Farm v. Sandusky, 22 No. 43 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage August 3, 2012 State Farm has asked a federal court to rule that it has no obligation under Jerry Sandusky's homeowners policy to cover defense costs in criminal and civil sex abuse suits against the former Penn State assistant football coach. State Farm has provided homeowners coverage to Sandusky and his wife since 1985, the insurer says in a complaint filed in the U.S. District Court for the Middle District of Pennsylvania. The policy, renewed annually, mainly covered the couple's property

Expert Testimony: EXPERT TESTIMONY ISN'T NEEDED TO SHOW BAD FAITH, 11TH CIRCUIT SAYS, Tardiff v. Geico Indem. Co., 8 No. 7 Westlaw Journal Insurance Bad Faith 2, Westlaw Journal Insurance Bad Faith August 7, 2012 The 11th U.S. Circuit Court of Appeals has upheld the exclusion of an insurance consultant's expert testimony from a suit against Geico Indemnity Co., finding that Florida juries do not need experts to determine if an insurance company has acted in bad faith. The three-judge panel said a layperson could "decide whether Geico acted in bad faith without the assistance of expert testimony" in a case in which Geico failed to settle a claim and exposed its clients to a $1.1 million judgment.

  Restraint of Trade: AETNA SUED FOR RESTRAINT OF TRADE, Kerner v. Aetna Health Plans of Cal., 8 No. 7 Westlaw Journal Insurance Bad Faith 11, Westlaw Journal Insurance Bad Faith August 7, 2012 A California plastic surgeon has filed a class-action lawsuit alleging health insurance giant Aetna bars doctors from participating in its plans if they refer patients to out-of-network providers. Marc M. Kerner, who practices in Northridge, filed the suit in the Los Angeles County Superior Court against Aetna Health Plans of California Inc., Aetna U.S. Healthcare Inc. and their related companies. The complaint alleges unfair competition in violation of Cal. Bus. & Prof. Code 17200

Contraception: MISSOURI GOVERNOR VETOES BILL BANNING MANDATORY BIRTH CONTROL COVERAGE, 22 No. 43 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage August 3, 2012 Missouri's Democratic Gov. Jay Nixon vetoed legislation July 12 that would have expanded moral and religious exemptions from insurance policies covering birth control. Drafted by Republican lawmakers, the bill stated that Missouri employers and insurers should not be compelled to provide coverage for abortion, contraception or sterilization if such medical procedures run contrary to their "religious beliefs or moral convictions." SB 749

Health Care Reform (Contraception): FEDERAL JUDGE TOSSES STATES' CHALLENGE TO OBAMA CONTRACEPTION RULE, State v. U.S. Dep't of Health & Human Servs., 22 No. 43 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage August 3, 2012 A federal judge has dismissed a lawsuit by seven attorneys general who sought to block a rule from the Obama administration's new health care reform law that requires employers to provide contraception coverage for workers. Nebraska Attorney General Jon Bruning sued on behalf of six other states, three Catholic nonprofit institutions and two Catholic individuals, alleging the rule violates the rights of employers and religious organizations that oppose the use of contraceptives

Reproductive Rights: PLANNED PARENTHOOD SUES ARIZONA OVER MEDICAID DEFUNDING LAW, Planned Parenthood Ariz. v. Betlach, 22 No. 43 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage August 3, 2012 Planned Parenthood and three of its patients have sued the state of Arizona in a bid to overturn a law that bans family planning organizations that perform abortions from participating in Arizona's Medicaid program and from receiving public funds. The law, signed by Republican Gov. Jan Brewer in May, applies to any health care provider that is eligible for federal funding under a Medicaid regulation, 42 U.S.C. 1396d(1)(2)(B). Scheduled to take effect Aug. 2, HB 2800 excludes cases

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Health and insurance interesting developments and baby back ribs with aged bourbon, chipotle peppers, mustard and cardamon sauce

Insurance -- Automobile liability -- Bad faith failure to settle -- Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who died as result of injuries sustained in accident in which insured rear-ended decedent's vehicle -- Undisputed facts demonstrated no basis from which reasonable jury could conclude that insurer acted solely in its own interest, but instead showed that insurer acted properly and promptly in continually contacting plaintiff in order to discover name of attorney retained by her so that insurer could then contact the attorney -- Insurer was not required to tender check for its policy limits to plaintiff, despite fact that insurer knew plaintiff had retained an attorney -- Trial court properly granted summary judgment on behalf of insurer based on unrefuted evidence that insurer acted in good faith in attempting to settle case
OLIVE GOHEAGAN, as personal representative of the estate of MOLLY SWABY, individually and as assignee of JOHN PERKINS, Appellant, v. AMERICAN VEHICLE INSURANCE COMPANY, a Florida for profit corporation, Appellee. 4th District.

Insurance -- Homeowners -- Wind damage -- Examination under oath -- Under plain language of insurance contract between parties, which allowed insurer to require insured to submit to examination under oath “while not in the presence of any other ‘insured,' ” insured was not prohibited from having his public adjuster present during the insured's examination under oath
ZAFAR NAWAZ, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Notice of Claim: LATE NOTICE OF HIT-AND-RUN DOOMS UM COVERAGE FOR VICTIM'S FAMILY, DeFrain v. State Farm Mut. Auto. Ins. Co., 22 No. 36 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage June 15, 2012 State Farm owes no uninsured-motorist coverage to the family of a pedestrian who died months after a hit-and-run accident because the insurer was not notified within 30 days of the incident, a split Michigan Supreme Court has ruled. In a 4-3 decision, the court held there was no requirement that an insurer actually be prejudiced by its policyholder's failure to provide notice within the amount of time specified in a contractual notice provision.

Arbitration Agreements: JUDGE UPHOLDS ARBITRATION AGREEMENT DESPITE UNAVAILABLE FORUM, Meskill v. GGNSC Stillwater Greeley, 14 No. 25 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home June 15, 2012 The son of a deceased nursing home resident must arbitrate his negligence claims against the facility even though the forum specified in the arbitration contract is no longer available, a federal judge in Minneapolis has ruled. Judge Richard H. Kyle of the U.S. District Court for the District of Minnesota granted a motion to compel arbitration filed by the operator of Golden Living Center Greeley.The forum specified in the nursing home's contract, the National Arbitration Forum, no longer exists.

Interesting medmal Legislation: MICHIGAN SENATE MULLS BILL TO WAIVE DOCTORS' MED-MAL LIABILITY, 14 No. 25 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home June 15, 2012 A Michigan Senate committee is considering legislation that would excuse health care providers from medical malpractice liability if they can show they used "professional judgment" in caring for a patient. SB 1116 is part of a package of medical malpractice bills currently under review by the Senate Committee on Insurance that would prohibit claimants from recovering prejudgment interest and limit noneconomic damages awards. SB 1116 is known as the "physician judgment rule”.

Regulatory Initiative: CMS CALLS FOR REDUCTION IN NURSING HOMES' USE OF ANTIPSYCHOTIC DRUGS, 14 No. 25 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home June 15, 2012 The Centers for Medicare and Medicaid Services has announced a national initiative to reduce the use of antipsychotic drugs in nursing homes by 15 percent by the end of the year. The Partnership to Improve Dementia Care calls for increased transparency on facilities' use of antipsychotics, as well as enhanced training for nursing home employees on quality care and non-pharmacological alternatives to antipsychotic treatment. Acting CMS administrator Marilyn Tavenner announced May 30.

Mental Illness: 9TH CIRCUIT UPHOLDS LANDMARK MENTAL ILLNESS COVERAGE RULING, Harlick v. Blue Shield of Cal., 22 No. 36 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage June 15, 2012 A California insurance law requires Blue Shield to cover residential treatment for a policyholder who suffered from an eating disorder, a split federal appeals court has ruled, reaffirming its groundbreaking 2011 decision. A 2-1 panel of the 9th U.S. Circuit Court of Appeals denied Blue Shield of California's request for a rehearing en banc and reached the same conclusion as it did in its original ruling.

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Healthy dose of health law and garden tomatoes with holy basil, homemade mozzarella, and Kalamata olives

Federal Insurance - Health - Federal Regulation Tracking DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 156 Patient Protection and Affordable Care Act; Data Collection To Support Standards Related to Essential Health Benefits; Recognition of Entities for the Accreditation of Qualified Health Plans Proposed Rule COMMENT DATE: July 5, 2012 77 FR 33133-01

Federal Insurance - Property and Casualty - Federal Regulations DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 387 State Enforcement of Household Goods Consumer Protection Final Rule ENFORCEMENT DATE: The Agency amended its household goods regulations on November 29, 2010 (75 FR 72987). States are now authorized to enforce those regulations, retroactive to January 28, 2011, the effective date of the 2010 rule. COMPLIANCE DATE: The requirement for a $25,000 surety bond or trust fund  77 FR 32901-01

Defibrillator lead: FLORIDA MAN SUES MEDTRONIC OVER REPEATED SHOCKS FROM IMPLANTED DEFIBRILLATOR, Brown v. Medtronic, 19 No. 8 Westlaw Journal Medical Devices 7, Westlaw Journal Medical Devices June 4, 2012 Medtronic Inc. is being sued by a Florida man who says his Sprint Fidelis defibrillator lead cracked, exposing him to repeated, unnecessary shocks from his implanted cardiac rhythm management system. Albert Brown says Medtronic failed to exercise the necessary caution in its design and manufacture of the Sprint Fidelis Model No. 6949 electrical lead and neglected to warn patients and treating physicians about the "serious and hazardous health risks" associated with the device.

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 14 No. 24 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home June 1, 2012 Primary care physicians could see a pay raise in the next two years for treating Medicaid patients under a rule proposed May 9 by the Obama administration. The Department of Health and Human Services said the increase would bring service fees for Medicaid primary care in line with those paid by Medicare. Under the rule, physicians would see a 34 percent increase in average Medicaid primary care payments, according to the HHS.   

 Involuntary Commitment: WISCONSIN HIGH COURT NIXES EMERGENCY COMMITMENT FOR ALZHEIMER'S PATIENT, In re Helen E.F., 14 No. 24 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home June 1, 2012 An elderly Alzheimer's patient should have been placed in protective custody pursuant to a state law for long-term care of the disabled instead of being involuntarily committed through a series of emergency detentions for the mentally ill, the Wisconsin Supreme Court has ruled. The state's highest court upheld the state Court of Appeals' 2011 ruling that Fond du Lac County officials improperly committed "Helen E.F." under Wis. Stat. 51, the state law governing involuntary commitment .

Legislation: SENATORS CALL FOR PATIENTS' CONSENT IN OFF-LABEL ANTIPSYCHOTIC DRUG USE, 14 No. 24 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home June 1, 2012 Three U.S. senators have introduced a legislative amendment that would require health care providers to obtain informed consent from elderly dementia patients before administering antipsychotic drugs to them for "off-label" uses. The proposed amendment to the Food and Drug Administration Safety and Innovation Act, S. 3187, would help to combat "costly, widespread and inappropriate" use of antipsychotics in nursing homes, Iowa Republican Chuck Grassley said in a May 22 statement.

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Supreme Court Oral Argument on Health Care Law: Monday's Argument

Supreme Court Oral Argument on Health Care Law: Monday's Argument.

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D.C. Joins 11 states and the Virgin Islands in Amicus Brief Supporting Constitutionality of Health Care Law

"The Office of the Attorney General for the District of Columbia announced today that the city has joined 11 states and the Virgin Islands in signing an amicus brief (PDF) to the U.S. Supreme Court that supports the constitutionality of the 2010 federal healthcare law. The brief, according to the statement released today by the D.C. attorney general’s office, contends that “the federal commerce power, by design, includes the power to regulate individual conduct so long as the individual’s conduct, combined with others’ conduct, may have a significant effect on interstate commerce.”" More.
From The BLT Jan. 17, 2012

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Humana's McCallister Sees Industry Consolidation

June 21 (Bloomberg) -- Michael McCallister, chief executive officer of Humana Inc., talks with Bloomberg's Shannon Pettypiece about the outlook for consolidation among health insurers and the effects of the U.S. health-care overhaul.
Humana, the second-biggest seller of Medicare managed care plans and prescription drug plans, owns more than 300 clinics in 40 states after acquiring Concentra Inc. in December. (Source: Bloomberg, June 21, 2011)    Video here
More

U.S. Health-Care Law Is Upheld by Appeals Court as High Court Clash Looms

A federal appeals court upheld President Barack Obama’s health care overhaul, rejecting arguments that it violates the Constitution by requiring Americans either to buy insurance or pay a penalty.
The Cincinnati-based court today by a 2-1 vote turned aside a challenge to the legislation by the Ann Arbor, Michigan-based Thomas More Law Center, a Christian-based public interest law firm, which contended Congress exceeded its constitutional power in imposing the individual mandate. (Source: Bloomberg, June 22, 2011)
More.

Bills Introduced  

HR 2363 (Price, R-GA), to establish performance-based quality measures, to establish limitations on recovery in health care lawsuits based on compliance with best practice guidelines, and to provide grants to states for administrative health care tribunals; to Energy and Commerce. CR 6/24/11, H4573.


HR 2376 (DeGette, D-CO), to amend the Public Health Service Act to provide for human stem cell research, including human embryonic stem cell research, and for other purposes; to Energy and Commerce. CR 6/24/11, H4574.

Notices

On 6/24/11, the Employee Benefits Security Administration announced amendments to interim final regulations, effective 7/22/11, implementing the requirements regarding internal claims and appeals and external review processes for group health plans and health insurance coverage in the group and individual markets under provisions of the Affordable Care Act. Comments are due 7/25/11. FR37208.

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Arbitration, civil rights, and Mother's Day brunch, served with bruschetta and fresh basil

Arbitration -- Class actions -- Federal Arbitration Act prohibits States from conditioning enforceability of certain arbitration agreements on availability of classwide arbitration procedures -- California supreme court's Discover Bank decision, which held that class waivers in consumer arbitration agreements are unconscionable under certain circumstances, is preempted by FAA, because it stands as an obstacle to accomplishment and execution of full purposes and objectives of Congress

Reported at 22 Fla. L. Weekly Fed. S957a

Civil rights -- Search and seizure -- Excessive force -- Because 42 U.S.C. section 1983 is silent or “deficient” with respect to survival of a civil rights action in favor of another upon death of injured party, Section 1988(a) requires application of state survivorship law, provided that state law is “not inconsistent with the Constitution and laws of the United States” -- Alabama survivorship statute, which provides that unfiled personal injury claims do not survive death of injured party, is not inconsistent with Constitution and laws of the United States -- District court erred in denying defendant's motion to dismiss based on abatement of plaintiff's excessive force claims -- When Alabama survivorship statute is applied to action, which was not filed prior to death of injured party, excessive force claim abates under Alabama law

Reported at 22 Fla. L. Weekly Fed. C2003a

Consumer law -- Deceptive and unfair trade practices -- Trial court did not err in quashing civil investigative subpoena duces tecum issued by attorney general and served on law firm, seeking production of documents related to different subjects involving the law firm's representation of lending institutions in foreclosure cases -- Alleged conduct of the law firm in the present case does not fall within the rubric of “trade or commerce” as required for civil investigative subpoenas under Florida Deceptive and Unfair Trade Practices Act -- Subpoena centers on the law firm's conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of “trade or commerce” as defined by the FDUTPA statute

Reported at 36 Fla. L. Weekly D884c

HOSPITAL WORKERS MUST ABIDE BY SMOKING BAN, 3RD CIRCUIT RULES, Armstrong County Mem'l Hosp. v. United Steel Union, 25 No. 19 Westlaw Journal Employment 4, Westlaw Journal Employment April 19, 2011

The 3rd U.S. Circuit Court of Appeals has determined that a hospital's ban on smoking on its property is reasonable pursuant to the terms of a collective bargaining agreement. The panel overturned an arbitrator's decision that the hospital must honor its past practice of allowing employees to smoke in a designated spot on the property.The dispute began in January 2009 when Armstrong County Memorial Hospital adopted a policy that banned smoking anywhere on hospital property.

Dunn v. Yager,(Miss.)

Arguments and Opening Statements - Patient had constitutional right to participate in closing argument in malpractice action.

Addressing a matter of first impression, the Supreme Court of Mississippi held that a patient had the right under the access-to-courts provision of the Mississippi Constitution to participate in her closing argument in her medical malpractice action against a physician, provided that the patient complied with the same rules applicable to her lawyer. The trial court properly excluded the patient from participating in rebuttal argument, however, as the patient never timely sought to participate as her own counsel despite years of opportunity, and she notified trial court of her desire to act as her own counsel, jointly with retained counsel, only when retained counsel neared the end of rebuttal argument.

Medical Devices (Discovery): PAIN PATCH MAKER MUST REVEAL DATA IN CALIFORNIA DEATH SUIT, Standing v. Watson Pharms., 8 No. 5 Westlaw Journal Expert and Scientific Evidence 10, Westlaw Journal Expert and Scientific Evidence April 20, 2011

A California judge has ordered Watson Pharmaceuticals to turn over key documents and other data about a pain patch that allegedly caused a user to overdose on fentanyl. Judge Richard E. Rico of the Los Angeles County Superior Court also ordered certain Watson executives to testify under oath about the company's pain patches. The judge adopted recommendations from a special discovery master despite the company's objections to the findings.

Medicaid Services: U.S. CONCERNED ABOUT LOUISIANA PLAN TO CUT HOME MEDICAID SERVICES, Pitts v. Greenstein, 13 No. 21 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home April 22, 2011

A federal judge in Louisiana will let the Obama administration file a letter of interest and argue on behalf of a group of low-income residents challenging the state's bid to cut home-care Medicaid services for nearly 11,000 poor people. The lawsuit, filed in the U.S. District Court for the Middle District of Louisiana, seeks to stop the state's Department of Health and Hospitals from slashing its long-term personal care services program in the face of a $1.6 billion budget deficit..

Abuse & Neglect: SUIT CLAIMS RESIDENT'S CANCER WENT UNNOTICED AT 2 ILLINOIS FACILITIES, Parks v. Mid Am. Care Ctr., 13 No. 21 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home April 22, 2011

Two Illinois nursing homes violated a resident's rights by ignoring her complaints of pain and failing to recognize that she was suffering from cancer, a state court lawsuit alleges. The estate of Deborah Parks claims that Mid America Care Center LLC and Glenwood Healthcare & Rehab Inc. both neglected to properly assess her condition and treat the cancerous tumor in her rectum.  

Arbitration Agreement: KENTUCKY APPEALS COURT FINDS ARBITRATION AGREEMENT INVALID, Kindred Nursing Ctrs. v. Brown, 13 No. 21 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home April 22, 2011

The mother of a mentally incapacitated nursing home resident is not bound by the terms of an arbitration agreement that she signed on her son's behalf before she became his legal guardian, the Kentucky Court of Appeals has ruled. The three-judge panel unanimously upheld a trial court's decision to deny Kindred Nursing Centers' motion to dismiss Teresa Brown's negligence claims or compel arbitration.The contract is unenforceable absent evidence that Brown had legal authority to act on behalf.

Conservatorship: ELDERLY MAN'S FAMILY LOSES MONTANA HIGH COURT BATTLE WITH CONSERVATOR, In re Conservatorship of J.R., 13 No. 21 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home April 22, 2011

A dementia patient and his family have failed to convince the Montana Supreme Court that a trial judge improperly dismissed negligence and breach-of- fiduciary-duty allegations against his conservator. The high court said the trial judge correctly ruled that conservator Joseph Shevlin did not breach his duty to protect the assets of the elderly man, identified in the court's opinion as "J.R."

Employment: FORMER NURSING HOME WORKER CLAIMS RACE, GENDER HARASSMENT, Le v. Manor Care of Fountain Valley, 13 No. 21 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home April 22, 2011

A former kitchen worker at a California nursing facility alleges in a state court lawsuit that she was sexually harassed, intimidated and subjected to racial discrimination by her supervisor and co-workers. Jeanne Le claims that Manor Care of Fountain Valley and its owners and operators failed to investigate her complaints of harassment and "encouraged" a hostile and offensive work environment for her and other female workers.  

Health Care Reform: 11TH CIRCUIT SETS JUNE HEARING IN CASE ON HEALTH CARE REFORM LAW, Florida v. U.S. Dep't of Health & Human Servs., 13 No. 21 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home April 22, 2011

A federal appeals court in Atlanta will hear oral argument June 8 on the constitutionality of the nation's sweeping health care reform law. In an order filed April 1, the 11th U.S. Circuit Court of Appeals said each side will get one hour to present its arguments. The order comes just weeks after the appellate court granted the Obama administration's request to expedite the case.The government hopes to overturn U.S. District Judge Roger Vinson's Jan. 31 decision.

Medical Device: ALABAMA WOMAN DIED FROM USING BACTERIA-TAINTED IV PRODUCT, SUIT SAYS, Young v. Meds I.V., 13 No. 21 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home April 22, 2011

The maker of an IV-delivered nutritional product is being sued by the daughter of an Alabama woman who died of an infection she allegedly contracted from either the solution or the bags in which it was supplied. Mary Ellen Kise died at a Baptist Health Systems hospital in Prattville, Ala., after receiving a contaminated IV made by Meds I.V. LLC, according to the complaint filed in Autauga County Circuit Court.  

Patient Care Privileges: JUDGE REFUSES TO REINSTATE DOCTOR'S PRIVILEGES AT ARKANSAS HOME, Roudachevski v. All-Am. Care Ctrs., 13 No. 21 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home April 22, 2011

The former medical director of an Arkansas nursing home has lost his federal court bid for a preliminary injunction to restore his patient care privileges at the facility. Dr. Evgueni Roudachevski failed to show that he and his patients have suffered irreparable harm from the termination of his ability to provide treatment at All-American Care Centers' Little Rock facility, U.S. District Judge Susan Webber Wright of the Eastern District of Arkansas said.  

Study: STUDY: THREAT OF LAWSUITS MAY NOT LEAD TO IMPROVED PATIENT CARE, 13 No. 21 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home April 22, 2011

The threat of litigation provides little incentive for nursing homes to deliver quality care because both high- and low-performing facilities are sued at similar rates, according to a recent study in the New England Journal of Medicine. Nursing homes in the top 10th percentile for lowest deficiency records had a 40 percent annual risk of being sued, while facilities in the 90th percentile had a 47 percent chance, the study said.  

News in Brief: NEWS IN BRIEF, 13 No. 21 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home April 22, 2011

'Nanny cam' leads to nursing home workers' arrests Authorities in Pennsylvania have charged three nursing home workers with assault after hidden-camera footage allegedly showed them striking and taunting an elderly resident, ABC News reported April 7. Lois McCallister's family installed a hidden camera in her room at the Quadrangle in Haverford after she described being punched and slapped by staff, the report said.

Criminal law -- Habeas corpus -- Second or successive petition -- Rule 60(b) motion for relief from judgment, filed after habeas petition was denied, alleging that court-appointed lawyer failed to challenge the lawfulness of admitting at petitioner's trial the confession of a codefendant despite having repeatedly promised to do so, actually raised a new habeas claim without first securing circuit court's permission to file a second or successive habeas petition -- District court lacked subject-matter jurisdiction to consider claim and, accordingly, erred by treating motion as one properly filed pursuant to rule 60(b) and in considering motion on its merits

Reported at 22 Fla. L. Weekly Fed. C1995a

Criminal law -- Murder -- Death penalty -- Habeas corpus -- State court's rejection of claim that due process violation resulted from prosecutor's erroneous statements of law to prospective jurors regarding legal standard for weighing aggravating and mitigating circumstances, after finding that misstatements were harmless given later proper jury instructions, was not contrary to or an unreasonable application of clearly established federal law -- District court properly rejected federal due process claims based on certain remarks by prosecutor in closing argument where those claims had not been raised in state court -- Ineffective assistance of counsel -- State court did not act contrary to or unreasonably apply clearly established federal law in denying relief on claims that counsel was ineffective during guilt and penalty phases for failing to object to prosecutor's misstatements of law, failing to conduct meaningful voir dire, presenting defense during opening statement that had no legal basis, failing to object to prejudicial testimony from state's medical examiner, questioning defense witness in manner that elicited prejudicial testimony, or failing to adequately investigate and present mitigating evidence at penalty phase of trial

Reported at 22 Fla. L. Weekly Fed. C1998a

 

Criminal law -- Sentencing -- Resentencing -- District court may consider post-sentence rehabilitative conduct at resentencing

Reported at 22 Fla. L. Weekly Fed. C2002b

Criminal law -- Sexual battery on child -- Lewd and lascivious battery -- Jurors -- Challenges -- Peremptory -- Gender discrimination -- Defense counsel's objection to state's peremptory strike of male juror on ground that state was discriminatorily removing men from panel was sufficient for trial court to require state to provide gender-neutral reason for strike -- New trial required -- Evidence -- Uncharged collateral crimes involving both prior and subsequent incidents between defendant and victim were not inextricably intertwined with charged offenses -- Evidence was not properly admitted as similar fact evidence where state failed to provide notice which was sufficiently particular to comply with statutory notice requirements -- Error in admitting evidence was not harmless where evidence was extremely prejudicial, minimally relevant, and became feature of trial

Reported at 36 Fla. L. Weekly D874a

Criminal law -- Habeas corpus -- Petition for writ of habeas corpus, in which a prisoner is seeking immediate release, may not be dismissed based upon the petitioner's failure to allege exhaustion of administrative remedies where such failure has not been raised by the parties

Reported at 36 Fla. L. Weekly S191a

Criminal law -- Search and seizure -- Incident to arrest -- Cell phone -- Although there was nothing which would have led arresting officer reasonably to believe that cell phone on defendant's person at the time of his arrest contained evidence related to the crime for which defendant was being arrested, the search of the cell phone was not illegal -- Trial court properly denied defendant's motion to suppress photographs discovered on the cell phone -- Question certified: Does the holding in United States v. Robinson, 414 U.S. 218 (1973), allow a police officer to search through photographs contained within a cell phone which is on the arrestee's person at the time of a valid arrest, notwithstanding that there is no reasonable belief that the cell phone contains evidence of any crime?

Reported at 36 Fla. L. Weekly D911b

Criminal law -- Search and seizure -- Warrant -- Trial court erred by determining that magistrate did not have probable cause to issue warrant authorizing ion scan of interior of vehicle driven by defendant to determine whether additional testing for presence of drugs would link defendant to charges of unauthorized acting as money transmitter and money laundering -- Affidavit in support of warrant contained information that defendant behaved erratically during traffic stop, that narcotics dog alerted during an air sniff and a controlled box test, and that over $80,000 in currency was discovered in a plastic bag hidden in rear of vehicle -- Moreover, after finding that officer's affidavit was insufficient due to material omissions, trial court should have addressed defendant's claims that omitted material, if added, would have defeated probable cause and that the omissions resulted from intentional or reckless police conduct that amounted to deception; and neither of these circumstances was present in this case

Reported at 36 Fla. L. Weekly D902a

Criminal law -- Trafficking in cannabis -- Search and seizure -- Residence -- Marijuana grow house which was surrounded by six-foot chain-link fence, which had as its sole entrance a driveway that had a closed, but unlocked, gate that could be readily opened and which was not posted with “no trespassing” signs -- Officers, who had received anonymous tip that marijuana was being cultivated at house, did not violate Fourth Amendment by entering property through an unlocked gate for purposes of knock and talk, which is a form of citizen encounter -- Defendant failed to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his front door -- Because evidence gathered to support search warrant arose from that brief intrusion into curtilage, trial court properly denied motion to suppress -- Omission of facts about fence and gate from affidavit in support of warrant did not invalidate the warrant or require suppression of evidence seized during search conducted pursuant to the warrant -- Standing -- Trial court erred in finding that defendant lacked standing to challenge search because he had not changed address on his driver's license to address of the grow house where it was undisputed that defendant was both working and living full time at the location

Reported at 36 Fla. L. Weekly D903a

Criminal law -- Habeas corpus -- Silence of defendant -- Defendant was not entitled to habeas relief based on prosecutor's reference to defendant's failure to disclose his version of facts prior to his testimony at trial, where Florida supreme court summarily rejected that claim, and fairminded jurists could disagree with claim that prosecutor's questions and argument violated defendant's constitutional rights as established in Supreme Court's decision in Doyle v. Ohio, which applies when a prosecutor comments on pretrial silence of defendant after he has been advised of his Miranda rights by law enforcement officer or other state agent -- Doyle does not apply, and defendant's constitutional rights are not violated, where defendant failed to prove that any of his silence before taking stand at trial came after he was given Miranda warnings -- Record is silent about whether any officer or agent ever read defendant his Miranda rights, and silent record is fatal to Doyle claim -- State court adjudication of Doyle claim was not contrary to, or did not involve unreasonable application of, clearly established federal law as determined by Supreme Court

Reported at 22 Fla. L. Weekly Fed. C2015a

Criminal law -- Sentencing -- Armed Career Criminal Act -- Prior convictions -- District court did not err in applying Section 924(e) enhancement of Armed Career Criminal Act to defendant's sentence, where defendant's convictions of two burglary offenses that were committed on same day at separate addresses on same street and conviction of escape committed on same day constituted three separate offenses, and the escape from custody under Florida statute constituted a violent felony under ACCA

Reported at 22 Fla. L. Weekly Fed. C2016a

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House kills health law provision - from The Boston Globe

House kills health law provision - The Boston Globe
"The House voted overwhelmingly yesterday to repeal an unpopular tax filing requirement for businesses tucked into the new health care law. 

The provision would require millions of businesses to file tax forms for every vendor that sells them more than $600 in goods each year, starting in 2012. The requirement is projected to raise nearly $25 billion over the next decade by ensuring that vendors pay their taxes. But lawmakers in both parties say it could create a paperwork nightmare for businesses and the Internal Revenue Service." More