Most Surprise Medical Bills Will Finally End

Originally published by William K. Berenson.

Accident victims got some unexpected good news yesterday. A sweeping new law that will prevent most surprise medical bills was approved by the House of Representatives and Senate as part of pandemic-related legislation. The bill now moves to the President for approval where it is expected to be signed into law. Bravo!

This has been a serious problem for many years. One of the biggest problems injured victims face comes weeks or even months later when they open their mail and see enormous these surprise medical bills. They may have been treated by a hospital or doctor outside of their health insurance network and their company paid little, if any, money.

Of course, rarely if ever do people in emergency situations like car wrecks have the ability to consult their policies and know which providers will be paid.

This has resulted in an abusive practice called balance billing.

And the victims had no idea that the emergency room could charge any amount of money that it wanted to. We often see hospital bills exceeding ten thousand dollars due to treatment by multiple physicians and extensive diagnostic testing including x-rays, computed tomography, not to mention the huge costs for surgeries.

If the bills are in-network, there is generally no balance due other that the co-pay and deductible.

And adding to the financial stress, often someone has a health insurance plan but it claims that it is secondary and refuses to pay, or it eventually pays after a long delay, but then demands to be repaid in a surprise process called subrogation.

To make matters worse, the at-fault driver’s liability company has no legal duty to pay the plaintiff’s medical bills up front, so it doesn’t pay until it knows what all of the damages the injured victim has suffered and how much money they are demanding for compensation.

Surprise medical bills are a huge problem, especially in Texas where they are generated at two times the national average.

The new law took two years to be negotiated. It will help hundreds of thousands of Americans every year.

Unfortunately, it does not take effect until January 1, 2022.

The bills for out-of-network services will now be based on what would be charged if the facility or professional were in-network. There will be a dispute resolution process to resolve disputes.

Further, patients must be given estimates of the charges by out-of-network providers 72 hours in advance and be allowed to refuse to receive that care. But that places the injured person in a bind if he wants to use a certain specialist.

Everyone, including health insurance company officials, hospitals, doctors, attorneys, and the U.S. Congress, have known for many years that surprise medical bills were abusive. But they are mailed out almost 90% of the time in some Texas cities.

This has resulted in endless collection notices, lawsuits, bankruptcies, and financial hardship.

It took over years for representatives of both parties to reach this compromise.

Unfortunately, ground ambulances, which can have the highest billing rates for any out-of-network facility, are exempt from the new guidelines. At least air ambulances will be governed by the new law. Their bills can exceed $50,o00.00, so this is more welcome news.

Texas already banned some surprise medical bills

Texas surprisingly adopted one of the strongest anti-surprise medical bills laws in the country last year. SB 1242 created an arbitration process that forced the parties to resolve their disputes. However, it had a glaring exception which allowed the highly-priced out-of-network providers to force patients to agree to their bills.

Our state has had a medical dispute process for over ten years. However, it was so popular that the system was overwhelmed. Medical bills medication requests stun Texas officials

We know how horrible being in a car or truck collision is, and the last thing you need is to have to be an outrageous medical bill later. A personal injury lawyer will attempt to cut down your medical bills.

Here is more information on this topic: Best ways to reduce huge medical bills

Please contact us if you have any questions.

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Dallas Bar Association and Dallas Association of Young Lawyers launch mentorship program

Originally published by Adam Faderewski.

The Dallas Bar Association and the Dallas Association of Young Lawyers are launching the 2021 STEER program, a mentorship program that focuses on cultivating relationships and providing substantive and practical legal advice.

STEER, or Stability Tools for Employment and Economic Resilience, is aimed at attorneys in the first three years of practice and recent law school graduates. Participants are matched based on practice area, practice goals, and other criteria. Mentors and mentees will meet in large and small groups (virtually as need) several times throughout the year.

To apply and for more information, go to dayl.com/mentoring.

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The City of Houston is Taking Steps to Bridge the Digital Divide

Originally published by Sabrina Davis.

Image by janjf93 from Pixabay

The “digital divide” refers to “the economic, educational, and social inequalities between those who have computers and online access and those who do not.” This divide can affect access to justice (for self-represented litigants in civil courts), education, employment opportunities, and more.

In May 2019, the Pew Research Center stated the following with regard to lower-income Americans: “Roughly three-in-ten adults with household incomes below $30,000 a year (29%) don’t own a smartphone. More than four-in-ten don’t have home broadband services (44%) or a traditional computer (46%). And a majority of lower-income Americans are not tablet owners.” As a result, “many lower-income Americans are relying more on smartphones” for internet access. Further, in August 2019, the Pew Research Center found that about “25% of Hispanics and 23% of blacks are ‘smartphone only’ internet users – meaning they lack traditional home broadband service but do own a smartphone. By comparison, 12% of whites fall into this category.”

As of October 2019, the Texas Comptroller reported that “[m]ore than 2 million Texas households don’t have high-speed internet.” In addition, the nonprofit group Common Sense found in 2020 that “34% or 1.8 million K-12 public school students in Texas do not have adequate access to the internet at home, and that 25% of Texas’ kids do not have an adequate device at home like a laptop or a computer.”

Locally, Comcast has partnered with the City of Houston on two initiatives designed to help bridge this digital divide. First, the Houston City Council “approved a $624,960 program to provide internet vouchers to low-income Houstonians,” which provided “approximately 5,000 vouchers to qualifying applicants” in December 2020. The vouchers were to “ensure qualifying applicants can continue to stay connected to the internet for education, work, and personal health reasons for one calendar year.” The second initiative involves WiFi-connected “Lift Zones” in nine City of Houston Community Centers. These “Lift Zones” are intended to offer “robust WiFi hotspots in safe spaces designed to help students get online, participate in distance learning and do their homework.” This program provides free WiFi in the designated community centers for the next three years.

Finally, even if you are not covered by these initiatives, our blog post from October 6, 2020 discusses a map of free WiFi spots in Texas, which allows you to enter your address and search for free public WiFi within a specified distance.

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Pro Se Plaintiff Loses Summary Judgment

Originally published by Thomas J. Crane.

Pro se cases (i.e., for self) typically result in dismissal. These are lawsuits filed by a layperson on his/her own behalf – without a lawyer. I previously posted about a pro se lawsuit here. In another such case, Wynne v. Jubilee Academy, No. 19-CV-00739 (W.D. Tex.), the plaintiff filed the suit herself. Although Ms. Wynne prepared professional looking pleadings and even successfully sought to amend her Complaint, her case was dismissed. The employer filed a motion for summary judgment, which the court granted.

The plaintiff alleged she was fired in violation of the Family Medical Leave Act, when she needed time off to care for a family member. Jubilee Academy was a charter school. The Department of Labor, Employment Standards Division, had issued a letter finding she had indeed been fired in violation of the FMLA. That is a rare event in itself. But, in court, a finding by an agency may or may not be admissible. Ms. Wynne tried to use that DOL notice as an exhibit, but the employer objected. The employer argued the finding was “conclusory.”

Ms. Wynne was fired seven days after requesting FMLA leave. That short span of time would suggest retaliatory intent. But, as with most pro se litigants, the plaintiff did not make her arguments on the merits clear. The court found that caring for her adult sister was not the sort of care protected by the FMLA. The court did not address the possibility that Ms. Wynne may have missed the statute of limitations. She was fired in August, 2016, but did not file suit until July, 2019. The court may have afforded the plaintiff substantial latitude since she was pro se.

As I have mentioned before, employment cases is one of these few areas of law where pro se litigants appear with some regularity. It can be difficult to find a lawyer willing to accept an employment case. Some pro se parties do prevail, at least for a time. But, unfortunately, this time, it was not to be.

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2020: It’s Better to Give Than Receive (Usually)

Originally published by Michael Cohen.

As year 2020 comes to an end, it is a good year to make gifts for some due to the CARES Act and potential future law changes – unless there is a possibility of applying for certain public benefits within an applicable “lookback period”.

Due to the pandemic, there are certain incentives to give to charities in year 2020 only including:

1. Individuals who do not itemize can get up to $300 deduction in addition to the standard deduction.

Due to the increase in the standard deduction several years ago, most Americans do not itemize.  As a result of many Americans being either unemployed or having reduced income due to the pandemic, it is likely most charitable giving will be reduced this year.  Thus, the CARES Act permits a deduction of up to $300 for year 2020 only for cash (not property) contributions to a qualifying charity in addition to the standard deduction.  Contributions to a donor advised fund do not qualify.

• Charitable contributions limit increased to 100% of AGI for those who itemize.

The CARES Act permits individuals to increase their charitable cash (not property) contributions from 60% of adjusted gross income (AGI) to 100% of AGI for those taxpayers who itemize.  If contributions exceed 100% of AGI, it can be carried forward for future years. Thus, for some (especially if the charitable gift is not from a retirement account as described below), this may be a good year to bunch charitable gifts (giving amounts in that were to be given in 2021 in year 2020 in addition to the contribution that was going to be given in 2020) due to the increase limitation.

• No required distribution from IRA this year, but if you do and don’t need income, then consider gifts directly to charity

Although the CARES Act does not require a minimum distribution for year 2020, if you are concerned about an increase in future income tax rates and if you are charitable, then you could consider a direct distribution from your IRA to the charity (if you are over 70 ½).  Although this is not an itemized deduction, it would not be included as part of your income (distributions from retirement accounts are income taxed) thus reducing your IRA balance.  President-elect Biden has proposed a higher income tax (37% to 39.6%) for individuals whose annual income is $400,000 or more.  The limit for the withdrawal directly to the charity is $100,000. If you are unconcerned about an increase in your income tax rate and do not plan on making a required minimum distribution from your retirement account in 2020, then you can consider bunching (not making the contribution from the retirement account in year 2020 and making more of a contribution in year 2021) charitable contributions next year when it is anticipated minimum distributions will again be required.  As indicated above, although you would not be receiving a deduction for your charitable donation, you would not be income taxed on the direct distribution from the retirement account.

• Consider gifting appreciated assets such as stock.

Instead of paying the capital gains tax on the sale of an appreciated asset (i.e., stock, or mutual funds), consider giving the stock directly to the charity. The charity (or donor advised fund) could then sell the appreciated asset received.  As a result, you would get the charitable deduction on the stock at its appreciated price (if you itemize) without paying capital gains tax.

Gift and Estate Tax Planning:

Although an individual can continue to give up to $15,000 per year per person without reporting to the IRS  and although the lifetime gift and estate tax exemption (which requires the donor to report) is increasing from $11.58 million to $11.7 million in 2021 (increasing from $23.16 million to $23.4 million per year for married couples jointly), some are concerned about President-elect Biden’s proposal to reduce this amount to $3.5 million ($7 million for a married couple filing jointly) that possibly could be retroactive to January 1, 2021.  As a result, some wealthy taxpayers are considering making large gifts now (see article in our November newsletter entitled “Potential Tax Ramifications of the 2020 Election on Individuals”) since there is no claw back.  For example, if one has a large estate and has not made gifts exceeding the annual exclusion previously, that individual donor could technically make a gift (which should be reported to the IRS) of $11 million in year 2020 without being taxed on the gift.

CAVEAT:  Penalty if applying for certain Medicaid or VA benefits:

One of the most common misconceptions is that one could always make gifts subject to the rules above without effecting eligibility for public benefits such as certain Medicaid and VA benefits.  Public benefits are often “means-tested” (the government looks at resources of the applicant prior to granting benefits).  As a result, the government has anti-fraud measures in place to prevent an applicant from simply giving away their resources so that the government would pay for benefits such as home care, assisted living or nursing home or drug costs that Medicare does not cover.  There are over 100 Medicaid programs in Texas and each program has its own rules, including different rules on penalties for gifting (some programs do not have a penalty) within the applicable “look-back” period.  For example, long-term care Medicaid determines the amount of days of ineligibility by dividing the average daily cost for skilled care into the amount of the uncompensated transfer if made within five (5) years of the application.  Veterans (or their surviving spouse) who served during wartime who become disabled later in life (unrelated to the military service) and need assistance with two (2) activities of daily living or are homebound are subject to a 3-year look-back period for gifts with the divisor being the amount of the monthly benefit the veteran would receive.  Notwithstanding the Medicaid and Veterans benefits laws, elder law attorneys often use transfer planning strategies permitted by law to achieve eligibility in a quicker time frame to preserve resources (even if within the applicable look-back period).

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming virtual Estate Planning Essentials workshops by clicking here or calling 214-720-0102.  We make it simple to attend and it is without obligation.

The post 2020: IT’S BETTER TO GIVE THAN RECEIVE (USUALLY) appeared first on Dallas Elder Lawyer.

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Contaminated Butane and Propane Creates Fight Over General Terms and Conditions

Originally published by Charles Sartain.

Enterprise Products Operating v. Trafigura, A G. asks, Who should pay when a “black blob” that had “the stench of a skunk” was left behind after $27 million worth of an odorless product is delivered from a ship? The case holds that:

• a plaintiff can recover for losses paid by its insurance company and
• the parol evidence rule can be avoided in favor of the parties’ course of dealing.

 

Over hundreds of transactions Enterprise sold and Trafigura bought petroleum products. In each, the parties exchanged short documents highlighting key transition-specific terms.

Under an Export Contract Enterprise sold pure propane and butane that were to meet certain specifications. The Export Contract incorporated general terms and conditions (GTC’s) that were not attached. A separate document required specific purity standards for substances and prohibited contamination of the cargo. After the propane and butane were offloaded from a ship at its destination, a residue (the black blob) was discovered that was conspicuously different from the appearance and smell of the cargo. The residue tested positive for caustics and the ship required extensive cleaning. Test results revealed that the cargo met basic purity standards. But was was the cargo was contaminated?

Which GTC’s governed?

The Export Contract required Enterprise to indemnify Trafigura for contaminated cargo. Ship owners sued Trafigura in arbitration. Trafigura sued Enterprise for indemnification under the Propane GTC’s. Trafigura settled with the ship owners for several million dollars.

At the heart of the dispute were “2001 GTCs” and “Propane GTC’s”. The 2001 GTC’s barred Trafigura’s claims. Trafigura’s said the Propane GTC’s applied.

Did Trafigura have standing?

Trafigura’s insurance carrier paid the arbitration damages. Enterprise challenged Trafigura’s standing to sue because Trafigura suffered no injury. The court concluded that to have standing Trafigura did not have to pay the damages, but only that had to be “aggrieved”. Trafigura paid a $50,000 deductible and needed to settle with the ship owners because its expert concluded that the tribunal would have determined that Trafigura was at fault based on Enterprise’s contaminated cargo. Thus Trafigura’s injury was concrete, particularized and definite and was fairly traceable to Enterprise’s conduct in supplying contaminated goods.

Beating the parol evidence rule

The contract was subject to two or more reasonable interpretations and was, therefore, ambiguous. This created a fact issue as to the parties’ intent. The parol evidence rule (extrinsic evidence is not admissible to vary or contradict the words of a written contract) does not bar consideration of surrounding circumstances that inform, rather than vary from or contradict, the contract text. The Export Contract itself mentions the 2001 GTC’s but had a latent ambiguity.  Extrinsic evidence of the parties’ course of dealing throughout hundreds of transactions showed that they never performed under the 2001 GTC’s. The parties intended to incorporate the Propane GTC’s.  The jury resolved the dispute in Trafigura’s favor and awarded $2.4 million in actual damages and $889,000 in attorney fees.

Legal and factual sufficiency

Challenging the legal and factual sufficiency of the evidence, Enterprise argued that once the cargo was determined to have met agreed quality specifications, it didn’t matter if the cargo was contaminated. After the parties argued over the meaning of “contamination” and “quality specifications”, the court determined that those were two separate and distinct obligations under the Export Contract and that Enterpise had not met the contamination requirement. Based on the evidence, a reasonable person could conclude that the quality spec tests were not used to determine the presence of contamination and that the cargo was contaminated. Victory for Trafigura.

Same Christmas carol, same Jon Batiste, totally different presentation!

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What is Estate Planning?

Originally published by dpl_admin.

I was talking to a friend recently who innocently confessed that he just didn’t understand what I meant by “estate planning.”  I guess, like other attorneys, I take for granted that people understand what we mean by estate planning.  Simply put, what I mean by estate planning is planning for the eventuality of death and […]

The post What is Estate Planning? appeared first on Pyke & Associates PC.

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