Recent interview that introduces the Asset Protection topic from a legal perspective - the first in a continuing series on the topic:
http://www.ahluwalia-law.com/wordpress/wp-content/uploads/audio/April_2010/04-03-10_Attorney_Madan_Ahluwalia.mp3
Thursday, April 8, 2010
Tuesday, March 23, 2010
STATES WITH MOST ABUSIVE LAWSUIT SYSTEMS
A TRIO of startling articles are linked below for your information. The first one highlights the erosion of what we have always cautioned as being the "emperors new clothes" tort reform and med-malpractice caps which the penny-wise and pound foolish have always thought would protect them. The second article is on the most abusive lawsuit jurisdictions in the U.S. which include not only what you'd expect (California) but also some southern states; good ol' boys love torts too. Finally, a short piece on illinois and the lawsuit crisis there. All good quick reads.
Yours, Ike
THE LINKS:
Wednesday, March 3, 2010
Warning For Employers: Service Helps Job Applicants Lie to You
Warning For Employers: Service Helps Job Applicants Lie to You
Please read this important warning about a troubling web site brought to my attention by my friend and employment law expert Rachel Weiss. Many of my clients have employees that are in sensitive positions, and whose actions can potentially place those I serve in jeopardy - this service creates huge liability. I'd love to see the owners of the company below SUED when one of their "clients" kills or injures someone or creates some other harm, theft or loss because they got a job based on the false history and credentials they created. This is especially terrifying for medical businesses.
Please read this important warning about a troubling web site brought to my attention by my friend and employment law expert Rachel Weiss. Many of my clients have employees that are in sensitive positions, and whose actions can potentially place those I serve in jeopardy - this service creates huge liability. I'd love to see the owners of the company below SUED when one of their "clients" kills or injures someone or creates some other harm, theft or loss because they got a job based on the false history and credentials they created. This is especially terrifying for medical businesses.
Thanks, Ike
If any of you are involved in any way with your company’s hiring process, you need to be aware of a service called Career Excuse.
Career Excuse essentially provides job applicants with a completely or partially fabricated work history, complete with fake company names and fake references with phone numbers.
Real people will answer your phone calls and confirm whatever the applicant states in his or her resume. Career Excuse has become so popular that they’re not taking new “subscribers” at this time. (Of course, individuals currently filling out applications and submitting resumes may already be signed up).
Visit their website – CareerExcuse.com – for more information. In particular, read the “What If I Get Caught?” page, which assures its clients that lying on a resume is not a crime.
Please do not hesitate to contact me with any questions about this or any other employment or litigation issue. Rachel R. Weiss (602) 256-4448 rweiss@gblaw.com
Tuesday, March 2, 2010
Increased Physician Exposure Under the False Claims Act
Increased Physician Exposure
Under the False Claims Act
This is a guest piece by my friend Matt Weber, an expert health Care Attorney that helps protect doctors through out the Western U.S. with the law firm of Holland & Hart.
The Federal Goverment is cracking down on Medicare (and other provider) billing errors and lumping those with errors in the same boat with criminals and those commiting intentional fraud. Matt has provided some simple steps that will allow your practice to spot and fix these issues in a proactive, time and cost efficient manner, rather than at the point of a gun and at considerable disruption, heartache and expense.
Yours, Ike
By Matthew G. Weber, Esq., Holland & Hart LLP, Denver
The HHS Office of Inspector General reported healthcare fraud, waste and abuse savings and recoveries of nearly $21 billion last year. In addition, Congress enacted the Fraud Enforcement and Recovery Act of 2009 (FERA).
FERA dramatically increases funding for enforcement activity and also amends the False Claims Act (FCA) to create additional risk areas for physicians and medical practice groups. Now more than ever, your practice needs a solid compliance program to avoid costly investigations and penalties.
Physicians immediately can reduce this exposure by enhancing their ability to:
•Promptly return overpayments,
•Correctly bill government contractors such as Medicaid Managed Care Organizations and Medicare Advantage plans, and
•Protect non-employee agents and contractors from retaliation for good faith attempts to stop FCA violations, including whistleblowing activities.
Under FERA, it’s now a FCA violation to improperly retain an overpayment even if the overpayment is not the result of the submission of a fraudulent claim. In addition, a claim that is fraudulent can violate the FCA even if it is never “presented” directly to the government for payment. It’s enough if the claim is submitted to a federal contractor such as a Medicaid or Medicare managed care plan. It’s also enough if an “under arrangements” provider submits a false claim to a hospital that receives DRG Medicare payments.
That means that plans and hospitals will be monitoring billing by their providers like never before. At the same time, anti-retaliation protection has been extended to agents and contractors, so physicians must guard against actions during billing disputes that could be misconstrued as retaliation against those plans and hospitals.
What can you do right now to protect your practice? For starters:
• Implement a system for tracking and promptly returning overpayments,
• Step up monitoring and audits to ensure appropriate claims, and
• Revise your anti-retaliation policy to protect agents and contractors, and train your staff so they don’t inadvertently create the basis for such a claim during a billing dispute.
For more information or a personal review, please contact Matt Weber in Holland & Hart’s Denver office at 303-395-8565, mweber@hollandhart.com or through his LinkedIn profile: http://www.linkedin.com/in/matthewweber
Under the False Claims Act
This is a guest piece by my friend Matt Weber, an expert health Care Attorney that helps protect doctors through out the Western U.S. with the law firm of Holland & Hart.
The Federal Goverment is cracking down on Medicare (and other provider) billing errors and lumping those with errors in the same boat with criminals and those commiting intentional fraud. Matt has provided some simple steps that will allow your practice to spot and fix these issues in a proactive, time and cost efficient manner, rather than at the point of a gun and at considerable disruption, heartache and expense.
Yours, Ike
By Matthew G. Weber, Esq., Holland & Hart LLP, Denver
The HHS Office of Inspector General reported healthcare fraud, waste and abuse savings and recoveries of nearly $21 billion last year. In addition, Congress enacted the Fraud Enforcement and Recovery Act of 2009 (FERA).
FERA dramatically increases funding for enforcement activity and also amends the False Claims Act (FCA) to create additional risk areas for physicians and medical practice groups. Now more than ever, your practice needs a solid compliance program to avoid costly investigations and penalties.
Physicians immediately can reduce this exposure by enhancing their ability to:
•Promptly return overpayments,
•Correctly bill government contractors such as Medicaid Managed Care Organizations and Medicare Advantage plans, and
•Protect non-employee agents and contractors from retaliation for good faith attempts to stop FCA violations, including whistleblowing activities.
Under FERA, it’s now a FCA violation to improperly retain an overpayment even if the overpayment is not the result of the submission of a fraudulent claim. In addition, a claim that is fraudulent can violate the FCA even if it is never “presented” directly to the government for payment. It’s enough if the claim is submitted to a federal contractor such as a Medicaid or Medicare managed care plan. It’s also enough if an “under arrangements” provider submits a false claim to a hospital that receives DRG Medicare payments.
That means that plans and hospitals will be monitoring billing by their providers like never before. At the same time, anti-retaliation protection has been extended to agents and contractors, so physicians must guard against actions during billing disputes that could be misconstrued as retaliation against those plans and hospitals.
What can you do right now to protect your practice? For starters:
• Implement a system for tracking and promptly returning overpayments,
• Step up monitoring and audits to ensure appropriate claims, and
• Revise your anti-retaliation policy to protect agents and contractors, and train your staff so they don’t inadvertently create the basis for such a claim during a billing dispute.
For more information or a personal review, please contact Matt Weber in Holland & Hart’s Denver office at 303-395-8565, mweber@hollandhart.com or through his LinkedIn profile: http://www.linkedin.com/in/matthewweber
Thursday, February 25, 2010
Issuing a form 1099-C May Bar a Lender From Pursuing a Deficiency
This article came to me from my friend Attorney Phil Guttilla, a tax and estate attorney that is one of my go-to guys and who is helping people with the tax consequences of being part of entities that are in crisis due to the current market.
Yours, Ike
A recent Arizona Court of Appeals decision held that an Internal Revenue Service Form 1099-C sent by a lender to a delinquent borrower was prima facie evidence that the lender intended to cancel the debt.
In AmTrust Bank v. Fossett, 1 CA-CV 08-0840, the Court stated that this evidence may be rebutted by the lender; however, the lender's intent was a factual issue which barred both parties from obtaining an early decision by summary judgment.
Generally accepted accounting principals and Federal tax law require lenders to report a discharge of indebtedness, which may give rise to taxable income for the borrower.
Under Arizona law, a discharge of debt may occur when a lender agrees not to sue or otherwise renounces its rights against the borrower by a signed writing.
In AmTrust Bank v. Fossett, the borrowers argued that because they reported and paid taxes as a result of the lender's Form 1099-C, the lender was precluded from pursuing a deficiency under Arizona law. The Court recognized that under Federal law, certain conditions mandate that the lender file a Form 1099-C even if it still intends to pursue collection. The Court also noted that if the lender was not required to report under Federal law but did, then that is also a factor to be considered in determining whether the borrowers were still liable for the debt.
The concurring judges noted that other courts have remarked in similar situations that there is no reason why a lender can not include a statement with the Form 1099-C sent to a borrower explaining the reason for issuing the Form 1099-C and a notice of the lender's intent to continue to pursue collection. While not controlling, the comment was instructional and we believe that a lender should include a reservation of rights and explanation letter with each Form 1099-C.
For more information on when a lender must file a Form 1099-C or for more information regarding the suggested form of letter, please contact Attorney Phillip Guttilla, pguttilla@rcalaw.com , (602) 440-4845 or see more about Phil Here:http://www.rcalaw.com/View-user-profile.php?qsln=g&user=96
Yours, Ike
A recent Arizona Court of Appeals decision held that an Internal Revenue Service Form 1099-C sent by a lender to a delinquent borrower was prima facie evidence that the lender intended to cancel the debt.
In AmTrust Bank v. Fossett, 1 CA-CV 08-0840, the Court stated that this evidence may be rebutted by the lender; however, the lender's intent was a factual issue which barred both parties from obtaining an early decision by summary judgment.
Generally accepted accounting principals and Federal tax law require lenders to report a discharge of indebtedness, which may give rise to taxable income for the borrower.
Under Arizona law, a discharge of debt may occur when a lender agrees not to sue or otherwise renounces its rights against the borrower by a signed writing.
In AmTrust Bank v. Fossett, the borrowers argued that because they reported and paid taxes as a result of the lender's Form 1099-C, the lender was precluded from pursuing a deficiency under Arizona law. The Court recognized that under Federal law, certain conditions mandate that the lender file a Form 1099-C even if it still intends to pursue collection. The Court also noted that if the lender was not required to report under Federal law but did, then that is also a factor to be considered in determining whether the borrowers were still liable for the debt.
The concurring judges noted that other courts have remarked in similar situations that there is no reason why a lender can not include a statement with the Form 1099-C sent to a borrower explaining the reason for issuing the Form 1099-C and a notice of the lender's intent to continue to pursue collection. While not controlling, the comment was instructional and we believe that a lender should include a reservation of rights and explanation letter with each Form 1099-C.
For more information on when a lender must file a Form 1099-C or for more information regarding the suggested form of letter, please contact Attorney Phillip Guttilla, pguttilla@rcalaw.com , (602) 440-4845 or see more about Phil Here:http://www.rcalaw.com/View-user-profile.php?qsln=g&user=96
Tuesday, February 9, 2010
9 Tips for Negotiating with Corporate Creditors
This is a great simple outline by my friend Sean Shepherd about negotiating with corporate creditors. As always, get good legal counsel and implement a professional asset protection plan NOW to help protect your family's assets from an infinite universe of personal and professional exposure. - Ike
Guest Column By Sean Shepherd
Negotiating with creditors to effect an out-of-court workout is certainly not an easy task. Facing a loss, creditor managers and banks often adopt an adversarial posture that initially may be difficult to overcome.
The goal is to establish a consensual tone and tenor while acting to protect your own interests. Despite what they may say, credit managers and banks will be acting in their best interest and it is important to realize that their goal is to maximize their recovery. Accordingly, here are some tips that will help during negotiations:
1) Liquidity Analysis - Start by performing a comprehensive liquidity and cash flow analysis that uses current operating characteristics as a base line. The goal is to first determine what the business can afford to pay on a periodic basis.
2) Game Plan - Have a game plan BEFORE approaching the creditor and never agree to pay more than what the cash flow analysis suggests is feasible.
3) Understand the Other Side – This is one of the universal keys to negotiating—i.e., understanding your opposition’s needs and objectives. During negotiations, attempt to uncover the creditor’s needs and their bottom line—that is, the absolute minimum that they will or can accept. Depending on individual circumstances, 50% to 70% percent of the current balance of the credit is generally not unreasonable.
4) Stay Calm - Credit managers and banks may use a variety of tactics to coerce the borrower into a revised arrangement that is ultimately unrealistic. Hence, stay calm and never become intimidated by the person that you're negotiating with, even if they threaten you with lawsuits or other actions. Studies indicate that a calm person thinks more clearly and effectively than one aroused.
5) Timing - Don't lose sight of the fact that most successful negotiations take place over a matter of days or even weeks, with several rounds of offers and counter-offers. Don't become discouraged if the process seems to be taking longer than expected.
6) Alternatives – Try to present a couple of different restructuring/repayment alternatives so that you’re presenting a ―choice‖ to select from. This is, again, a key tactic in successful negotiations. If the company can afford, for example, to settle an account by paying a lump sum (as opposed to a payment plan), you'll have much more negotiating leverage. This is the universal power of cash, and it works in all venues.
7) Opposing Tactics - Remember that the person you're negotiating with is a trained professional when it comes to debt collections. A common tactic is for them to use complex legal terminology (during conversation or in correspondence) in order to confuse or intimidate the counter-party. Attend very carefully to what's being said and make sure that you understand exactly what you're being asked to agree to. If a legal issue arises during negotiations, side-line the topic by simply indicating that you can’t agree or comment until you’ve consulted with the attorney involved in the process.
8) Draft & Execute the Agreement - Once a workout agreement has been reached, make absolutely sure that everything that's been agreed upon is accurately expressed in writing, and that the agreement is fully executed by all parties—i.e., signed and dated.
9) Know the Law - Never lose sight of the fact that anyone attempting to collect a debt outside of court must conform with the Federal Fair Debt Collection Practices Act—understand what this says and what rights it affords the borrower.
Sean Shepherd is the Director of Business Development for VALCOR Consulting. VALCOR provides a full menu of enterprise valuation services and restructuring support to the middle market. Mr. Shepherd can be reached at: sshepherd@valcoronline.com or 602.214.4321
Guest Column By Sean Shepherd
Negotiating with creditors to effect an out-of-court workout is certainly not an easy task. Facing a loss, creditor managers and banks often adopt an adversarial posture that initially may be difficult to overcome.
The goal is to establish a consensual tone and tenor while acting to protect your own interests. Despite what they may say, credit managers and banks will be acting in their best interest and it is important to realize that their goal is to maximize their recovery. Accordingly, here are some tips that will help during negotiations:
1) Liquidity Analysis - Start by performing a comprehensive liquidity and cash flow analysis that uses current operating characteristics as a base line. The goal is to first determine what the business can afford to pay on a periodic basis.
2) Game Plan - Have a game plan BEFORE approaching the creditor and never agree to pay more than what the cash flow analysis suggests is feasible.
3) Understand the Other Side – This is one of the universal keys to negotiating—i.e., understanding your opposition’s needs and objectives. During negotiations, attempt to uncover the creditor’s needs and their bottom line—that is, the absolute minimum that they will or can accept. Depending on individual circumstances, 50% to 70% percent of the current balance of the credit is generally not unreasonable.
4) Stay Calm - Credit managers and banks may use a variety of tactics to coerce the borrower into a revised arrangement that is ultimately unrealistic. Hence, stay calm and never become intimidated by the person that you're negotiating with, even if they threaten you with lawsuits or other actions. Studies indicate that a calm person thinks more clearly and effectively than one aroused.
5) Timing - Don't lose sight of the fact that most successful negotiations take place over a matter of days or even weeks, with several rounds of offers and counter-offers. Don't become discouraged if the process seems to be taking longer than expected.
6) Alternatives – Try to present a couple of different restructuring/repayment alternatives so that you’re presenting a ―choice‖ to select from. This is, again, a key tactic in successful negotiations. If the company can afford, for example, to settle an account by paying a lump sum (as opposed to a payment plan), you'll have much more negotiating leverage. This is the universal power of cash, and it works in all venues.
7) Opposing Tactics - Remember that the person you're negotiating with is a trained professional when it comes to debt collections. A common tactic is for them to use complex legal terminology (during conversation or in correspondence) in order to confuse or intimidate the counter-party. Attend very carefully to what's being said and make sure that you understand exactly what you're being asked to agree to. If a legal issue arises during negotiations, side-line the topic by simply indicating that you can’t agree or comment until you’ve consulted with the attorney involved in the process.
8) Draft & Execute the Agreement - Once a workout agreement has been reached, make absolutely sure that everything that's been agreed upon is accurately expressed in writing, and that the agreement is fully executed by all parties—i.e., signed and dated.
9) Know the Law - Never lose sight of the fact that anyone attempting to collect a debt outside of court must conform with the Federal Fair Debt Collection Practices Act—understand what this says and what rights it affords the borrower.
Sean Shepherd is the Director of Business Development for VALCOR Consulting. VALCOR provides a full menu of enterprise valuation services and restructuring support to the middle market. Mr. Shepherd can be reached at: sshepherd@valcoronline.com or 602.214.4321
Wednesday, February 3, 2010
Florida Court: Insurer of Physician is not obligated to indemnify based on business liability policy’s professional services exclusion
The District Court of Appeal of the State of Florida (the “Appeals Court”) recently affirmed the trial court’s determination that a doctor’s business owner insurer was not obligated to indemnify the doctor for a wrongful death suit that resulted, in part, from the mis-filing of laboratory results by the doctor’s assistant, although it did have a duty to defend.
SEE THE WHOLE STORY HERE: http://tinyurl.com/yar5tva
SEE THE WHOLE STORY HERE: http://tinyurl.com/yar5tva
Subscribe to:
Posts (Atom)