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NAELA News Home - NAELA News July/August/September 2019Health Care Section
Medical Debt and Older AmericansBy Josh Ard, Esq.
Most elder law attorneys have little training and little experience in counseling clients about medical debt. There are certain things we ought to know and communicate to clients, preferably to avoid problems before they arise.
Medical debt is a major problem for Americans in general and older Americans in particular. Some of Sen. Elizabeth Warren’s research while on the faculty at Harvard Law School demonstrated the role of medical debt in bankruptcy filings.1 Older Americans are even more likely to file for bankruptcy over medical debts. Forty percent of those filers had trouble paying Medicare premiums and co-pays.
Most elder law attorneys have little training and little experience in counseling clients about such problems. There are certain things we ought to know and communicate to clients, preferably to avoid problems before they arise.
The National Center on Law and Elder Rights https://ncler.acl.gov/Resources.aspx), the National Consumer Law Center (https://www.nclc.org/issues/debt-collection.html), and other organizations have created materials and trainings that are very helpful in this regard.
The Affordable Care Act and Nonprofit Hospitals
Perhaps the most important recent changes in medical debt come from provisions regulating nonprofit hospitals included in the Affordable Care Act. These are a part of the Internal Revenue Code and administered by the IRS. Nonprofit hospitals have to report their activities on Form 990, Schedule H, and violations could lead to loss of nonprofit status. The final regulations were released on December 29, 2014, and apply to tax years beginning on December 29, 2015. The IRS overview, “Requirements for 501(c)(3) Hospitals Under the Affordable CareAct—Section 5019(r),” is available at https://tinyurl.com/ycggyp2p.
Nonprofit hospitals must have a written Financial Assistance Policy (FAP) that applies to all emergency and medically necessary care provided by the hospital and by a substantially related entity. The FAP must be widely publicized and include:
• Eligibility criteria for financial assistance and whether such assistance includes free or discounted care,
• The basis for calculating amounts charged to patients,
• The method for applying for financial assistance,
• For a hospital facility that does not have a separate billing and collections policy, the actions that may be taken in the event of nonpayment,
• If applicable, any information obtained from sources other than an individual seeking financial assistance that the hospital facility uses, and whether and under what circumstances it uses prior FAP-eligibility determinations to presumptively determine that the individual is FAP-eligible, and
• A list of any providers, other than the hospital facility itself, delivering emergency or other medically necessary care in the hospital facility that specifies which providers are covered by the FAP and which are not.
The FAP must describe the eligibility criteria. These eligibility criteria are not specified by the IRS, except that they must be reasonable for the community. Thus, unlike Medicaid, there is no nationwide or local source where one could simply look up to see if a person is eligible.
The FAP regulations place further requirement on plain language, usability (e.g., internet information must be available without a fee), and translation into other language when there are a significant number of speakers of that language in the community.
There are limits on the charge that can be made to FAP-eligible patients, even if they have not yet applied for financial assistance. In particular, nonprofit hospitals cannot charge FAP-eligible patients more than the “amount generally billed,” a technical term fleshed out in the IRS regulations. In essence, this prevents charging more than the amounts typically billed to insurance companies. Before this law went into effect, some nonprofit hospitals were notorious for charging very high rates to indigent patients in part to discourage them from seeking medical care.
Nonprofit hospitals are also required to make reasonable efforts to determine whether an individual is FAP-eligible before engaging in extraordinary collection actions (ECA). ECAs are defined as actions taken by a hospital facility against an individual related to obtaining payment of a bill for care covered under the hospital facility’s FAP that:
• Involve selling an individual’s debt to another party,
• Involve reporting adverse information about an individual to consumer credit reporting agencies or credit bureaus (collectively, “credit agencies”),
• Involve deferring or denying, or requiring a payment before providing, medically necessary care because of an individual’s non-payment of one or more bills for previously provided care covered under the hospital facility’s FAP, or
• Require a legal or judicial process.
Examples of actions that may require a legal or judicial process include, but are not limited to:
• Placing a lien on an individual’s property,
• Foreclosing on an individual’s real property,
• Attaching or seizing an individual’s bank account or any other personal property,
• Commencing a civil action against an individual,
• Causing an individual’s arrest,
• Causing an individual to be subject to a writ of body attachment, and
• Garnishing an individual’s wages.
Hence, persons in financial difficulty should always seek care at nonprofit hospitals. For-profit hospitals are not subject to these requirements.
A state may place further requirements on nonprofit hospitals. Nonprofits also receive major state tax benefits on both sales and property taxes and a state may require certain behaviors to retain those benefits.
Other Important Laws
There are other laws that are helpful in dealing with medical debt. The three largest credit reporting agencies — Experian, Equifax, and TransUnion — agreed in a settlement with state attorneys general to no longer report medical debts that are less than six months past due and to remove any debts that are later paid by insurance.
The Fair Debt Collection Practices Act forbids a debt collector from taking steps to collect debts that are unenforceable. Note that it only applies to debt collectors. In particular, it does not apply to hospitals, doctors, or other medical providers attempting to collect their own debts. It applies to any debt collector trying to collect after a demand isn’t paid, including lawyers. Prevailing plaintiffs can obtain statutory damages if actual damages are hard to prove or negligible plus attorney fees.
Medical Debt and Spouses
A special consideration is when one spouse is billed for the medical debts of another under the doctrine of necessaries. Some states have overturned that common law rule by statutes and in others courts have rejected it. Note that the federal Equal Credit Opportunity Act expressly forbids creditors from requiring one spouse to cosign for the sole debts of the other. That act has even higher statutory damages than the Fair Debt Collection Practices Act.
Even if there is no actual violation of the law, persons faced with medical debt have rights of appeal and the right to negotiation over amounts.
1 David U. Himmelstein, Deborah Thorne, Elizabeth Warren, and Steffie Woolhandler, Medical Bankruptcy in the United States, 2007: Results of a National Study, Am. J. of Med., Vol. 122, Issue 8, 741-746 (Aug. 2009). The results have been challenged as being exaggerated. See, for example, https://www.pymnts.com/healthcare/2018/bankruptcy-medical-debt-hospital-bills-elizabeth-warren/ where some of the competing research is summarized. According to that site, “What both the new research and Ms. Warren’s original paper agree on is that it’s not just medical bills that push sick people toward bankruptcy, but the lost income due to illness that disrupts consumers’ financial lives to the point that they are pushed to complete insolvency by a medical emergency.
About the Author
Josh Ard, JD, is principal of The Law Office of Josh Ard, Delaware, Ohio. He is a member of the NAELA News Editorial Board.
An excellent article that you'd think would be unimportant to wills and estate planning follows. Let me assure you that nothing could be further from the truth! It is SUPER important that EVERY name and address (and other vital info) is checked, confirmed, and double verified in ALL your documents. What I you named Bill Smith in Virginia Beach to get all your stuff when you died? Which Bill Smith? Maybe its actually Bill Smythe. Uh oh. I like to add middle names and addresses, with other contact info, to all my documents.
legal writing remindersName Plaintiffs or Other Parties PreciselyDon't inadvertently put both parties on equal footing in your briefs.By Josh Taylor
First impressions matter. The way that we introduce ourselves to others sticks with folks. We also can wear different introductions in different situations to suit our needs. In court, I can be Attorney Taylor or Counsellor. But I don’t introduce myself as such meeting friends of friends out at a wine bar (at least not if I want them to like me). The same is true of introducing parties or any other peripheral character in legal writing. Lawyers should make thoughtful, careful choices about how they refer to main players throughout a brief or motion. A wrong choice (or no choice at all) could result in lost impact, confusion or, at the very least, a missed opportunity.
Name Your Parties to Humanize and DehumanizeI always enjoy shocking my law students with this concept. But perhaps the more seasoned practitioners among you won’t cringe like some 1Ls when I advocate using naming conventions to humanize or dehumanize depending on your client’s needs. Let me clarify. Using uniform naming conventions for both parties in a case is a lost opportunity to do damage in your reader’s mind to the other side. If you refer to your client as “the Plaintiff” and the opposite side as “the Defendant,” you’ve inadvertently put both parties on equal footing and missed an opportunity to legitimately tip the scales in one direction.
When representing a plaintiff, take advantage of that position. Let’s imagine a simple tort case with the following facts:
Janine Smith was walking into a Walmart when she tripped in a cement pothole outside the front entrance on the sidewalk, fell, and broke her collarbone.
Now let’s consider a few things before we decide what we call our plaintiff. As you’ve probably guessed, simply referring to her as “Plaintiff” is out. That’s too dry, unrelatable and generic to work well for us. At this point, you may think the answer is simple — we want to humanize Janine Smith, and will therefore call her “Ms. Smith.” That’s absolutely the correct answer; but, what if she’s a seven-year-old child? We may get even more out of calling her “Janine.”
Creating a Power DifferentialAdditionally, we need to create a power differential with our defendant, the big bad multibillion-dollar corporation that has set out to harm regular everyday little girls going to the store with their parents. This is where the fun starts. “Walmart” may actually invoke brand loyalty, while something like “the Corporation” or “the Company” or “the Retail Chain” is a safer bet to invoke images of mechanistic money-hungry corporate America.
But now, what about when we’re representing the big bad corporate defendant? Part of our job as zealous advocates is to subtly dehumanize the plaintiff. Thus, we may have success by referring to Janine Smith as “Plaintiff” throughout our motion. Maybe we introduce the location at which Janine fell at her family’s local Walmart. Perhaps we can play up the community aspect in our naming convention and refer to it as “the Local Store” while also referring to the corporate party by name.
Of course, the facts of your particular case will dictate the naming conventions, but never let it be an afterthought. Make your names elicit thoughtfully considered characterizations.
Abbreviate, But Don’t Confuse Your ReaderIntroduce all characters with full names (people and businesses) before you start shortening in any way. When explaining this to students, I use the example of meeting someone new for the first time. Initially, you will likely introduce yourself by your full name. After, as you become acquainted, you may shorten it. We can never assume our reader knows our characters as well as we do. Thus, instead of launching into a brief about Mr. Smith, we meet our character as John Smith. Instead of launching in talking about GNP, Inc., we give a fuller picture by referring to the company as Goliath National Products, Inc.
When you do shorten, try your best not to confuse the reader. Just as meandering sentences and lack of proper grammar trip up readers, so too will ambiguous name abbreviations and acronyms. Bryan Garner and the late Antonin Scalia in their book, “Making Your Case,” advocate avoiding acronyms altogether, saying they can create a “brief of alphabet soup.” After all, they remind us, acronyms “are mainly for the convenience of the writer or speaker,” not the reader.
As all our writing tips go, the point is and should always be the convenience of our readers.
Yet often overlooked. Cities! Wake up!
NYC to improve sidewalks for disabled groups, settlement rules
July 25, 2019 Dive Brief:
Listen NowDive Insight: New York City sidewalks have posed hazards to the disabled community for decades due to inaccessible curb cuts, potholes, sloped ramps, and a lack of detectable warnings for blind pedestrians.
"New York City is a very walkable city," Disability Rights Advocates' Managing Director of Litigation Michelle Caiola told Smart Cities Dive. "The ability to traverse the city streets is just a very fundamental right and it requires that the city follow these guidelines to make sure everything is in compliant condition."
New York will be required to maintain curb cuts with the same frequency that roads are repaved, ensuring that the city's heavy traffic, weather and congestion don't erode the curb cuts over time. The city has also agreed to install detectable warnings at all corners, which is crucial for individuals who are blind, according to Caiola.
The settlement should remind cities that conducting a self-analysis to address these barriers is required by the American Disabilities Act, she said.
Cities across the country are working to improve their streets and sidewalks for disabled residents and visitors. Smart Cities for All, a collaboration between G3ict and World Enabled, launched "Inclusive Innovation for Smarter Cities" last year to encourage planners to consider people with disabilities in new technology design plans. The group partnered with AT&T to launch a playbook in May that outlines the steps cities can take to prioritize accessibility.
Despite the recent progress and attention paid to designing inclusive cities, new hurdles are also arriving on city sidewalks — literally.
Disability Rights California filed a lawsuit this year against the city of San Diego and scooter companies Bird, Lime and Razor, alleging the dockless vehicles make sidewalks unsafe. Bird and Lime advise users to stay off sidewalks and park their vehicles in safe places. But beyond urging consumers to use the devices responsibility, cities and private companies have little ability to enforce the rules.
A class action lawsuit was also brought against Uber by Pittsburgh-area residents for a lack of wheelchair-accessible vehicles (WAVs) in the city. Brought by the Disability Rights Advocate (DRA) and Carlson Lynch LLP, the DRA has filed similar lawsuits against Uber in California and New York. A recent report also found that 70% of Uber and Lyft ride requests don't offer WAVs in New York City.
Private sector companies are partnering with cities to bring a growing number of options to individuals with disabilities in cities. Lyft announced in June that it would bring more WAVs to San Francisco and Los Angeles through a partnership with First Transit.
May Mobility also recently released details about a wheelchair accessible-version of its autonomous shuttle. The company plans to roll out the vehicles in Columbus, OH; Providence, RI; and Grand Rapids, MI.
A Virginia Beach man died 94 days after a fall. Those last 4 days cost his widow $100,000.
If the 75-year-old man had died four days earlier, his widow would have probably collected on a $100,000 accidental death insurance policy.
But he didn't. So she won't.
A federal judge ruled last week for the Transamerica Premier Life Insurance Company, saying Blosch's policy was clear: The death "must occur within 90 days of the accident."
"On the basis of these undisputed facts, defendant is not required to pay," U.S. District Judge Rebecca Beach Smith wrote.
Attorneys for Transamerica and Blosch's widow declined or did not respond to requests for comment.
A veteran lawyer with 40 years experience in estate planning, however, said the court's ruling was not surprising.
John Midgett compared the lawsuit in question to a Hail Mary in football. There wasn't much the lawyer, or the judge, could do in light of the facts of the case and the policy's restrictive nature.
"When it says 90 days, it mean 90 days. Not 91. Not 89," said Midgett, who was not involved in the case.
Kevin Martingayle, a past president of the Virginia State Bar, and Gerald Schwartz, a past president of the Virginia Trial Lawyers Association, said that doesn't make it right since Blosch would likely have died sooner had doctors not intervened following his fall.
“If an insured individual’s life is extended by heroic medical means, it seems absurd and unfair that those medical efforts can relieve an insurance company from having to pay simply because the life was artificially extended past a deadline," Martingayle said. He believes the General Assembly should consider getting involved to prevent future problems.
Schwartz said the law places a policy holder's family in the awkward position of having to make end-of-life decisions based on an "arbitrary and unnecessary deadline."
"It's particularly bad in today's times, where doctors take all measures to save and prolong someone's life," he said.
Darlene Blosch, the widow, sued Transamerica last year in the hopes of forcing the company to pay.
Her husband, a former Marine who worked 20 years as an electrician for Peabody Coal, had secured the group accidental death insurance policy in 1998. The original policy was issued by Peoples Benefit Life Insurance, which later merged with Monumental Life Insurance Company, which later changed its name to Transamerica.
Following Blosch's Aug. 12, death, however, Transamerica balked at paying.
Yes, Blosch fell May 10, 2018, struck his head on a sidewalk, slipped into a coma and placed on a ventilator. Yes, he was hospitalized until he died from a subdural hematoma and medical complications arising from the fall. And yes, such a death would typically be covered by the policy.
But, Transamerica's attorneys argued, Blosch waited too long to die.
"The clear, plain meaning of the policy terms precludes recovery in this case," Michele Dallman wrote earlier this year.
Albert Selkin, Darlene Blosch's attorney, attacked the legality of the policy's 90-day provision. Among other things, he said in court documents, it was not included with the rest of the policy's exceptions or exclusions provisions and that the clause offended "the public policy of Virginia." He said it required the policy holder to die in an "unreasonably short period of time."
"It is absurd that the policy doesn't cover the accidental death of one who is hospitalized and invalid from the day of the accident," Selkin wrote in court documents. "This is accidental life insurance. The policy should be honored. That's what it covers."
The judge disagreed, noting that there is no Virginia case law supporting his argument and that the Virginia Bureau of Insurance has twice signed off on Transamerica policies, which included the 90-day provisions.
"Plaintiff has not provided the court with any basis upon which to conclude that the policy should not be enforced as written," Smith wrote in her order.
In an interview, Midgett questioned the value of an accidental death life insurance policy, comparing them to extended warranties stores sell people when they buy new stereos or lawn mowers. He said such policies are generally very restrictive and rarely result in payments.
Midgett went on to urge people to read their insurance policies before they sign and not blindly accept them like a website's terms and conditions.
"They control everything. They are of critical import," he said, explaining that is the only way to know a policy really covers. "Insurance companies are not in the business of giving money away."
Scott Daugherty, 757-446-2343, firstname.lastname@example.org
Medicare Advantage Plans Overbill Taxpayers By Billions Annually, Records Show
Health insurers that treat millions of seniors have overcharged Medicare by nearly $30 billion over the past three years alone, but federal officials say they are moving ahead with long-delayed plans to recoup at least part of the money.
Understanding Medicaid Buy-in: A Tool to Advance Employment for People with Disabilities
The Administration for Community Living, the Centers for Medicare & Medicaid Services (CMS), and the Department of Labor's Office of Disability Employment Policy (ODEP) are releasing a new "question and answer" document to help grantees, stakeholders, and self-advocates better understand the "Medicaid buy-in" program.
Jeff Sodoma, MPA, Esq. is a lawyer based in Virginia Beach, Virginia
Hello, there! Welcome to my blog. I will use this blog as a platform for my writing. I will write about topics in the legal world, certainly, as well as everything else under the sun, because I have many interests (and viewpoints). All views expressed in this blog, unless otherwise noted, are mine alone. One of my interests is music--my wife believes that I should go on "Beat Shazam" because I know so many songs--and I will be, from time to time, analyzing song lyrics and how they relate to the legal world.