IRS Issues Seasonal Employee Guidance

On November 22, the IRS issued guidance to employers that hire seasonal workers.  Under the health care law, many employers may have questions as to whether they are subject to the law if they hire seasonal employees.  The issues hinges on whether the employer is an applicable large employer.

The IRS issued IRS Health Care Tax Tip 2016-77 to address this issue.  The key takeaway is:

“If you have at least 50 full-time employees, including full-time equivalent employees, on average during the prior year, your organization is an ALE. Here’s the exception: If your workforce exceeds 50 full-time employees for 120 days or fewer during a calendar year, and the employees in excess of 50 during that period were seasonal workers, your organization is not considered an ALE. For this purpose, a seasonal worker is an employee who performs labor or services on a seasonal basis.”

This guidance may offer some relief to small employers that hire seasonal workers.  As always, it’s important to understand your obligations as an employer under the ever changing legal landscape.

Where There’s A Will… There’s Peace of Mind

The end of the year is here and most people are starting to think of their resolutions for the new year. In addition to the usual resolutions of eating healthier, saving more, or using your tech devices less,  think about having your estate documents prepared.

I know, it seems a bit dismal thinking about preparing your estate documents at the beginning of the new year, but, really, it makes sense.  By having your estate planning prepared and completed, you can rest easier knowing that you and your family are prepared for anything.

Some reasons to add Estate Planning to your New Year’s Resolutions:

  1. If you do not have a will, the laws of the State of Texas will determine who gets what and how much.  Maybe you gifted some money to son Johnny to help him get his business off the ground and plan on leaving the remaining money to your daughter Daisy.  Without a will, this may not happen.  And, if you do not have a will, your surviving family members may need to take extra steps to dispose of your property, including filing an Affidavit of Heirship and Application for Letters of Administration.
  2. Help to make a plan for your healthcare in the event that you unexpectedly fall ill.  Having an advanced directive, medical power of attorney, and/or living will will help your family members know what to do if you are unable to make medical decisions for yourself.  Planning in advance helps to guide families through difficult times and provides them with peace of mind that they are following your wishes.
  3. Make sure that your finances are being managed if you’re unable to do so for any reason.  Another important document is a general Power of Attorney, which allows the person of your choice to manage your finances (to the extent of your choosing) if you are deemed incompetent to do so.
  4. Find out if a trust is right for you.  A trust may be able to protect your assets and help to avoid long probate proceedings.

If you have questions regarding estate planning or would like to learn more about how JVG Law can help, please contact our office at (281) 370-1810 to find out about our Estate Planning Package.

*The above information is provided for informational purposes only and does not constitute legal advice.  No attorney-client relationship has been created. If you have questions regarding your specific case or circumstances, please contact an attorney to discuss your case individually.

Oxford Commas and Contract Review

Gurinder Sangha, a lawyer and entrepreneur, has developed technology to allow lawyers to find ambiguities in contracts and other documents to help avoid loopholes and inconsistencies in the document.  The technology stems from the drafting nightmare that was the Patient Protection and Affordable Care Act (PPACA or ObamaCare).  More information about Sangha’s vision and the technology he has developed is available here.

Sangha’s technology is innovative.   As an attorney, Sangha understands that a drafter’s word choice or comma placement can make or break a contract and resulting relationship. (Take a look at the classic Oxford Comma dilemma here.)   He recognizes the importance of sound legal advice, while recognizing that unintentional drafting errors can cause confusion and cost parties time and legal fees.

The need for the technology underscores the need for thorough contract review during all stages of the contract: drafting, review, negotiation, implementation, and enforcement.  Having an attorney assist you throughout these stages may help to avoid future disputes.

If you have questions or would like to discuss how JVG Law can assist you with your contract issues, please contact our office.

Landlord/Tenant FYI: Can Rent Payments be Subject to Online Payment Fees?

On June 16, 2016, Ken Paxton, the Attorney General of Texas, issued an opinion (Opinion No. KP-0095) addressing whether a Real Property Owner (“Owner”) may impose a fee or charge on a tenant who uses an online payment option to pay rent and ancillary charges to the Landlord through a third-party vendor.  Specifically, the Attorney General addressed whether this fee or charge for paying online would constitute a prohibited surcharge on the use of credit or debit cards in violation of Section 339.001 of the Finance Code and section 604A.002 of the Business and Commerce Code.

The short answer:  Yes, online rent payments may be subject to fees or charges, so long as the fee or charge is uniformly charged to all online payments by an arms-length third-party payment processor.

To ensure compliance, the Attorney General cautioned that owners must take care to ensure that the online payment system is truly a third-party, arms-length transaction.  If the arrangement is truly an arms-length transaction, then the Owner would not be imposing an additional fee and would not violate the statutes. In this case, the third-party processor is charging the fee, not the Owner; therefore, there would likely be no violation of Section 339.001 of the Finance Code or section 604A.002 of the Business and Commerce Code.

If there is a question of whether the Owner is truly separate and autonomous from the third-party processor charging the fee, then, depending on the facts, the Owner and third-party processor may be determined to be one of the same. In this case, the Owner may be in violation of Section 339.001 of the Finance Code and section 604A.002 of the Business and Commerce Code.

This opinion is in accord with the Advisory Bulletin issued by The Texas Office of Consumer Credit Commissioner in June 2015, Bulletin B15-2.

This Advisory Bulletin recommends the following to ensure compliance with relevant laws:

  1. If the Owner contracts with a third-party payment processor to accept payments by credit card, the Owner should not contract to receive any portion of the fee charged by the processor, either directly or indirectly;
  2. Ensure that the relationship between the Owner and the third-party processor is an arms-length relationship that is limited to processing payments.  Otherwise, the tenant could claim that the Owner and third-party processor have a general agency or joint venture relationship; and
  3. Provide the Tenant with multiples means of payment, so that the Tenant is not required to pay the third-party processor’s fee. If an Owner requires the Tenant to make payments through the third-party processor, without any other option, and there is a fee associated with that form of payment, then there is an argument that the Owner is imposing a credit card surcharge.

Small Business Disaster Prepartion

I have lived in the Houston area for a little over seven years.   Hailing from the Northeast, I never really understood what hurricane season is or the damage that heavy rains and flooding can do.  Now that I live here, I get it.  I also understand how important it is for everyone, including businesses – and especially small businesses – to be prepared for these events.  A little preparation may mean the difference between some down time and having to close down.

The Small Business Administration provides advice and assistance to small businesses across the country, including recommendations to prepare for these events, to be given via webinar.

Similarly, businesses – especially small businesses – need to protect themselves legally, whether its ensuring that contracts are drafted properly or to seek advice regarding a legal dispute.  Like anything else, a little preparation can save you time and money.

If you would like to discuss how our office can assist you or your business, please contact us at (281) 370-1810.

ABA Makes Recommendations to Proposed Medicare Appeals Rules

On July 5, 2016, CMS proposed amendments to the Medicare appeals process to address the backlog of current matters.  On August 29, 2016, the Health Law Section of the American Bar Association submitted comments to the Department of Health and Human Services relating to the proposed rule issued by the Centers for Medicare & Medicaid Services (“CMS”).
The proposed rules present numerous changes for providers, including some increased procedural difficulties relating to Medicare appeals.  The Health Law Section’s comments address, among other things, CMS’s proposals relating to whether certain final decisions are precedential, requirements for the amount in controversy, and requirements to consolidate proceedings related to the same issues.
Although these rules have not been finalized, it is imperative that health care providers and their business personnel continue to monitor these amendments, as it could have long-term effects on how and when a provider can file an appeal to Medicare.
For access to the Health Law Section’s comments, please visit:
http://www.americanbar.org/content/dam/aba/administrative/healthlaw/comments_alj_proposed_rules_final.authcheckdam.pdf

Protecting Your Business and Personal Information

We use the internet for almost everything – business and personal – from communication to online banking and shopping.  Protecting your information while conducting your day to day business is essential to your personal and business well-being.

Education is important.  If you think the communication is suspicious, do some research. Remember the FTC has excellent resources, with examples of phishing scams, how to deal with the scams, and steps that you can take to avoid the scams.

You can find more good advice on how to protect your information here.

GREAT NEW JOB? LET US REVIEW THAT CONTRACT!

You’re looking for a new job and you finally get the offer of your dreams.  The problem is that your new employer wants you to sign an employment agreement and maybe a separate non-disclosure agreement.

What do you do?  Our advice is to always seek legal counsel before committing to an employment agreement to ensure that your rights are protected and that you are not agreeing to too much.  Even if you think that the agreement is not actually enforceable, disagreements about this later could mean unanticipated and unwanted fees and costs (legal or otherwise) if and when you want to terminate your employment.  Having independent legal counsel review your employment agreement before you start could save you time and money in the long run.

For more information and reasons why seeking legal advice is to your benefit:

http://www.hcplive.com/physicians-money-digest/contributor/investingdoc/2016/08/why-you-should-have-a-lawyer-review-your-employment-agreement

Kentucky Court of Appeals Offers Hospitals Relief from Overreaching Utilization Review Recoupments

Providers subject to utilization review recoupments in Texas should review Kentucky v. Owensboro Med. Health Sys., Inc., No. 2015-CA-000229-MR (Ky. Ct. App. Aug. 12, 2016).  This case addresses the question of whether a State Medicaid Agency (Kentucky) can retroactively recoup the entire amount paid for an inpatient admission.

In Owensboro, the inpatient admission was determined to be not medically necessary, but the services provided were medically necessary and provided in the appropriate location (a hospital emergency room).

The Court held that the improper admission of a patient as an inpatient did not mean that the services provided were medically unnecessary, as the term is defined for the purposes of Medicaid reimbursement.  Importantly, the Court noted that “medically necessary outpatient care is not to be treated the same as medically unnecessary inpatient care,” as only the inpatient admission was unnecessary.  The Court further went on to state that having the provider “absorb the costs of medically necessary treatment it provided to a Medicaid beneficiary simply because the services were provided on an inpatient basis rather than an outpatient basis” was inappropriate.

While the case is not binding on Texas courts and the Commonwealth of Kentucky may still seek further review in the Kentucky Supreme Court, it does provide hospitals with some hope in these situations, as Courts may be increasingly willing to review Medicaid agency practices and procedures for their practical implications, including Medicaid’s refusal to reimburse a hospital for otherwise medically appropriate and necessary treatment.

(Given that the deadline to seek further review in the Supreme Court of Kentucky has not run, there may be updates to this case forthcoming.)