Medical Records Retrieval for Law Firms

• MODERN MEDICAL RECORDS RETRIEVAL SERVICE – AUTOMATION, COMPLIANCE, SAVINGS

The modern Medical Records Retrieval (MRR) service is a combination of modern web-based technology and a rules-compliant outsource solution. Historically lawyers and their staff would have to set aside a portion of their time, often a lot of time, to capture necessary information for cases that involved medical records. It’s not that the process is complex. Quite the contrary, every attorney, paralegal, and litigation-support person knows exactly what needs to be done.

It may appear simple, but it is a very manually intensive process. Someone at the firm must acknowledge the need for the records. Necessary forms must be completed to ensure compliance with a myriad of laws (including HIPAA), which the firm and often the patient (who may or may not be the firm’s client) would need to initiate a request. Then, the firm must track the progress of the request, and eventually receive, review, and organize the results, or note that there were no medical records available related to the matter.

To support the business of running a law practice, sophisticated and affordable software tools include new client/business intake, workflow automation, and conflicts management. Vendors who provide early case assessment tools and e-discovery-based technology-assisted review have begun to offer solutions for small firm and solo practitioners. In this article, we will show you how you can improve productivity, lower costs, and better manage billing for MRR expenses.

How Medical Records Retrieval Services Work

Here’s how a typical MRR service works for a small firm/solo practice. One of the firm’s employees logs into a secure, encrypted website. He or she then submits an order outlining the patient’s information, the records being requested, and any other data necessary to complete the request. What happens next is truly a game-changing activity. Instead of the firm’s billable resources chasing record requests from hospitals, doctors, and other healthcare providers, they go back to doing other, productive work, while the MRR process self-executes, and eventually provides you with the requested information and documents or informs you that there were no responsive documents.

Questions Regarding MRR Services

The availability of MRR services presents all attorneys, but especially solo and small firms, with the following important questions:

• How do you start with an MRR service?

• How are the record requests processed?

• Is this process HIPAA-compliant?

• When and how am I alerted to the status of my requests?

• How do I distribute the costs/fees associated with outsourcing medical records retrieval?

Choosing Your MRR Provider

To reduce the risk of choosing the wrong MRR service, consider the following best practices:

1) Ensure that the MRR service can prove secure access to its website (and your records) via a login and password.

2) Understand the MRR service’s processes to ensure protection of privacy.

3) Understand its service level agreements, which explain their process and anticipated turnaround time.

4) Verify that the MRR service has experience with expediting record requests by requesting a list of reference clients.

5) Review the process by which you and/or your staff are notified of updates, including record availability or notice of “no record found.”

6) Ask for the MRR service’s price schedule, preferably in a format that will permit you to do an apples-to-apples comparison of the fees of other MRR services.

When possible, a dedicated MRR service is a better choice than a firm that offers a multitude of legal practice services of which records retrieval is only a small subset of their overall business.

Getting Started with the MRR Provider

Upon choosing your MRR provider, the steps to starting to work with the provider are straightforward and similar to those when signing up with any on-line type of service:

• The firm identifies the approved personnel who are authorized to access the secure system.

• A unique user ID is created for the firm at this time, with a strong password required for all future access.

• Often, this is also the time that billing information is provided, and thus a financial account with the firm and MRR is created for future invoicing.

• Each authorized person completes a new user profile and sign-on request. The user must provide email and phone contact information.

• It is the responsibility of the law firm to notify the MRR as soon as possible in the event that an existing authorized user should be removed from the access control. The MRR should remedy and respond as soon as the user access has been removed.

• While the use of the MRR site should be quite easy for most users with minimal training, additional site support generally is available from the MRR’s services personnel via phone or email request.

Safeguarding Privacy

No matter how beneficial the technology, the firm must ensure compliance of federal and state HIPAA guidelines and any ethical rules about maintaining client confidences. Therefore, they must ensure that the MRR service collects, hosts, and provides access to client(s) records while maintaining compliance with privacy guidelines. Note: This should be part of your due diligence when selecting a provider.

The MRR Service should comply with Federal and state privacy laws. MRR services should keep up to date with changing rules of privacy such as the HITECH Act.

MRR agreements should expressly state that no personally identifiable health information (PHI) can ever be used for non-business related activities such as marketing and/or sales lead generation.

Record Processing

Once you have chosen an MRR service and set up your account, obtaining medical records is relatively straight-forward:

• After you enter a request into the system, the MRR service creates an MRR record request connected to the unique ID of the requester (the specific user at your firm), and confirms receipt of the request via an email.

• A reviewer is assigned to assess the necessary actions to fulfill the request, and will notify the user of any questions regarding the record request. In some states, including California, an electronic request can be executed from the MRR service to the healthcare provider, eliminating the need for paper-based transaction.

• The provider then tracks the request, and conducts any follow-up communication by any means available, including email, telephone or in-person visits if necessary, to acquire clear copies of records requested.

• If the record is available and legible, it is scanned into the secure web-based system for access by the user. Otherwise, a “no record found” is annotated to the request, and communicated back to the user.

Communication Is Key

Nothing can be more frustrating to case management than waiting for needed information from a third party. The MRR service must not only forward the record request to the healthcare provider, but also must provide the firm an ongoing and timely response regarding status. Each record must be tracked in real-time with detailed notes from the MRR agents. The MRR service should send alerts if additional information is required, provide replies via email, and deliver the link to download and/or view completed requests as soon as the records become available. Again, during the selection process, you should ascertain the provider’s practices regarding communications, and include them in the contract.

Speed Is Critical Too

Obtaining the medical records timely is critical, whether to respond to discovery, to make or oppose a motion for summary judgment, to get an expert up to speed, or to settle a case. A reliable MRR service will offer a quick turnaround. They have the experience working with medical locations to obtain records faster than a law firm’s in-house staff. After all, a law firm staff member may encounter (or, in truth, may feel like they have gotten stuck with) the occasional medical record search, but the MRR service is a specialist in the process of collecting information, including “no records found.” So, the MRR service’s very job is obtaining medical records, and therefore will have the process down to a set of specific steps, and can support their clients via a web interface.

Relationships With Healthcare Providers

Sometimes hospitals, physicians’ offices, and other healthcare providers may treat the occasional request by an attorney for medical records as an inconvenience, not respond as quickly or perhaps as completely as the attorney or client would like. A smart MRR service will develop long-term relationships with healthcare providers and their staff to get the data needed promptly and efficiently. This will improve the quality of the document production, reduce its cost, and speed the process up.

Database Strength

Medical records often can be in a different location or city than the healthcare provider. For example, billing records for hospitals are usually in an offsite facility, sometimes in another state. With the advent of electronic records, more healthcare providers are centralizing their records offsite with the umbrella company of their medical group/hospital. Without the information on how and where to request records, in-house staff can waste valuable time sending requests to the wrong locations or having to spend the time to find out where to send the requests. A strong database on where and how to request records from healthcare providers therefore is key to save time, ensure complete result, and save money. MRR services have the incentive and the resources to develop such a database. Law firms, especially solos and small firms, do not.

In addition the importance on the database in requesting medical records, it is equally important on the production side. Virtually all medical records are produced in digital format. Records are typically available in PDF or TIFF file format, making them searchable by many document management systems – including on premise, cloud-based, web-based or hybrid systems. They are usually made available for download and/or viewing from virtually anywhere on any device that supports a secure micro-browser. The MRR service maintains the medical records for ongoing access by the user and any authorized personnel.

MRR Costs and other Considerations

The MRR service will charge you for their services. However, because the firm’s resources are freed up to work on activities that generate revenue for the firm, the costs of using an MRR service will be offset at least in part, and perhaps in full. In addition, depending on your fee arrangement with your client, the invoices from the MRR service may be directly billable back to the client or at least accounted for as a recoverable cost. (Many MRR services charge no monthly fees for having an account, and thus the firm only incur fees on a usage basis, which can then be charged to the cases for which they are required.)

Summary

While many firms may continue the “do-it-yourself” approach, solos and small firms should consider using an MRR service. In addition to the higher costs of installing and maintaining one’s own record management system, the soft costs and resource consumption make this a less favorable alternative. A qualified, experienced MRR service offers a cost effective, robust platform for processing, monitoring, and tracking medical records requests. Record management and processing is HIPAA-compliant, always available, and secure-which in-house processes may not be, with the attendant risks. Use of an MRR service does not require capital expense to leverage digitally filed and maintained medical records. Firm resources can be repurposed from tracking record requests to meaningful and fee-generating activities. Client satisfaction may improve as matters are able to be processed more efficiently, and firm business may increase. The results of using an MRR service are measureable and immediate. It’s literally a one-click quantum leap from manual, resource-heavy processes to a modern, digital, secure web based management for your practice.

Trust-Owned Annuities

IRC Section 72 governs the income taxation of annuity contracts. IRC Section 72(u)(1) taxes the income on an annuity contract owned by a “non-natural” person by treating it as though it was received by the non-natural owner. If, however, a non-natural person is merely holding the contract as an “agent” for a natural person, the income on the contract will not be so treated. Unfortunately, neither the Internal Revenue Code nor the regulations explain when an agency arrangement will be deemed to exist.

For 2010, irrevocable trusts reach the highest income tax rate (35%) at $11,200 of taxable income. In comparison, married couples filing jointly and single taxpayers do not reach the 35% income tax rate until $357,700 of taxable income! Thus, wealthier individuals tend to invest in trusts for growth rather than for income. This is particularly true for credit shelter trusts (also known as family trusts and residuary trusts) where the surviving spouse neither needs nor wants current income, but wants to allow the trust assets to grow – estate tax free – for the benefit of children and grandchildren. If an annuity contract is to be used as a trust investment, the critical question to avoid current income taxation becomes whether the trust, a non-natural person, can be an agent for its natural person beneficiaries.

Single Beneficiary Trusts

In PLRs 9204010 and 9204014, the IRS determined that a trust was acting as an agent for a natural person when it purchased an annuity for the sole beneficiary of the trust. Under the terms of the trust, the trustee had discretion to pay income and corpus to the beneficiary until the beneficiary attains age 40, at which point the entire trust corpus (including the annuity contract) was to be distributed to the beneficiary. The IRS simply concluded that the trustee’s ownership of the annuity contract was nominal compared to that of the beneficiary and, consequently, the beneficiary was the beneficial owner of the annuity contract. The PLRs did not address what bearing, if any, there would be on the ruling if the beneficiary died prior to age 40 and the trust property passed to a contingent remainder beneficiary.

In PLRs 200449011, 200449013, 200449014, 200449015, 200449016 and 200449017, with almost identical facts, the IRS determined that the trust was acting as an agent for a natural person when it purchased an annuity contract for the sole benefit of the grantor’s grandchild. In those rulings, the annuity contracts were to be distributed in-kind. The PLRs did not address, however, what the tax consequences would be under IRC Section 72 if any distribution from the trusts were in cash.

Multiple Beneficiary Trusts

In PLR 9752035, the IRS determined, with no discussion, that a trust was acting as an agent for a natural person when it purchased an annuity contract. In PLR 9752035, there was a life income beneficiary (who was also the annuitant) and remaindermen. Although the outcome of PLR 9752035 was favorable, it provides little guidance as to when a trust is acting as an agent for a natural person.

Trust Distributions

IRC Section 72(e)(4)(C) provides, in part, that if an individual transfers an annuity contract without full and adequate consideration, the individual will be taxed on the amount in excess of the contract’s surrender value. However, in PLR 199905015 and PLR 9204014, the IRS ruled that IRC Section 72(e)(4)(C) does not apply when an annuity is transferred in-kind from a trust to the beneficiary. The trust beneficiary would simply become the owner of the annuity contract, would inherit its cost basis, and would continue to enjoy its tax-deferred status.

Other Section 72 Issues

Required Distributions. IRC Section 72(s) sets forth the required distribution rules which an annuity contract must satisfy upon the death of the holder of the annuity contract. Following is a summary of those rules:

  • If the holder dies after the annuity starting date, the remaining interest must be distributed at least as rapidly as the method of distributions being used at the date of the holder’s death.
  • Generally, if the holder dies before the annuity starting date, the entire interest must be distributed within 5 years of the holder’s death.
  • An exception to the 5-year rule allows a designated beneficiary to elect, within 1 year of the holder’s death, to take distribution of the proceeds over his/her life expectancy. A designated beneficiary is an individual named by the holder as the beneficiary of the annuity contract. A trust does not qualify as a designated beneficiary.
  • If the holder’s surviving spouse is the designated beneficiary, the surviving spouse has the ability to continue the decedent’s contract as though it were his/her own.

With a trust-owned annuity contract, the annuitant is defined to be the holder. Thus, it is the annuitant’s death that triggers a required distribution under IRC Section 72(s)(6). If, as is usual, the trust is the beneficiary of the contract, then the 5-year rule applies. Since a designated beneficiary must be an individual, the opportunity for a life expectancy pay-out appears to be unavailable. But under IRC Section 401(a)(9), which governs distributions from qualified retirement plans and IRAs, the beneficiaries of a properly designed trust which name trusts as beneficiaries (called a “see-through trust” by the IRS) will be treated as having been designated as the beneficiaries of the plan or IRA. Does the same hold true for trust-owned annuities, thereby allowing a life expectancy payout for annuities that name see-through trusts as the beneficiaries? Unfortunately, this issue has not yet been addressed by the courts or the IRS.

What if the irrevocable trust is a “grantor” trust for income tax purposes and the grantor and annuitant (normally the trust beneficiary) are not the same person? While not clear, arguably the grantor should be treated as the holder of the contract. If so, then it would be the grantor’s death (not the annuitant’s) that would determine when distributions from the contract must be made.

Penalty for Premature Distributions. IRC Section 72(q) imposes a 10% penalty tax on premature distributions from an annuity contract. Generally, the penalty tax applies to distributions to the “taxpayer” prior to attaining age 59 ½. If the annuity contract is owned by a trust, then who is the “taxpayer” for purposes of IRC Section 72(q)?

As discussed above, the annuitant is treated as the holder of a trust-owned annuity for purposes of the required distributions upon the death of the holder. Thus, it is logical to look at the annuitant for purposes of applying the age 59 1/2 exception for the premature distribution penalty. Assuming the annuitant’s age is not the relevant measure, then presumably it must be the beneficiary’s or beneficiaries’ age. If so, must all the beneficiaries be over age 59 1/2 for the exception to apply? Moreover, if the irrevocable trust is a grantor trust, is the penalty then based on the grantor’s age? Unfortunately, each of these questions remains unanswered. To avoid these issues, consideration should be given to distributing the contract outright to the beneficiary before the date withdrawals are to begin.

Designing the Trust

Keeping in mind that the PLRs cited above are only binding on taxpayers who requested the ruling, they do suggest that an annuity contract acquired by an irrevocable trust or credit shelter trust can provide tax deferral. But great care must be exercised to make sure that both the trust and annuity contract are properly structured. Consider these factors when setting up a trust-owned annuity:

  • The trust agreement should not require its assets be invested in income-producing property.
  • The trust agreement should specifically authorize the trustee to invest in an annuity contract.
  • The trust agreement should specifically allow distribution of the annuity contract in-kind to avoid adverse income tax consequences. If separate contracts are established for each trust beneficiary, with each beneficiary named as the annuitant for his or her respective contract, the in-kind distribution of the contract to the beneficiary-annuitant should be a non-taxable event.
  • To avoid gift taxes, the trust should purchase the annuity contract directly.
  • The trust should be the owner and beneficiary of the annuity contract.
  • If the grantor of the trust is named the annuitant, his or her death will likely trigger a complete and taxable liquidation of the contract within five years.
  • If the annuitant were to die while the annuity contract was still held in trust, the contract will likely have to be liquidated in five years. Thus, consideration should be given to distributing the annuity contract to the beneficiary-annuitant before his or her death. By doing so, the beneficiary-annuitant, as the new owner, will continue to enjoy all of the contract’s benefits and guarantees, and can name a new designated beneficiary.
  • Avoid the 10% early distribution penalty when possible.
  • The named annuitant should never be changed. Otherwise, the contract must be liquidated within 5 years.

Although trust-owned annuities involve a significant degree of complexity and uncertainty, they can be extremely beneficial. This is particularly so for credit shelter trusts where it’s possible to pass on an inheritance and not an income tax bill.

THIS ARTICLE MAY NOT BE USED FOR PENALTY PROTECTION.

Q&A – Neiman Marcus Curator Julie Kronick Remains Focused on Company Goals

In 1951, Alexander Calder (1898-1976) was bursting onto the international art scene. Two years earlier, the Philadelphia native constructed his largest mobile, “International Mobile,” for the Philadelphia Museum of Art’s Third International Exhibition of Sculpture. His works were featured in the best galleries and a retrospective was mounted at the Museum of Modern Art in New York. Shows in Paris followed.

But before he began focusing on large-scale commissioned works — such as “.125” at John F. Kennedy Airport in New York and “El Sol Rojo” in Mexico City — Calder met Stanley Marcus (1905-2002). At the time, Marcus had just assumed the CEO post at Neiman Marcus, the department store founded by his father and aunt.

Impressed with the artist’s work, Marcus purchased a Calder mobile in 1951. “Today, it’s the most prized piece in the Neiman Marcus Collection,” says Julie Kronick, corporate art curator at the Dallas-based luxury retailer. “We like to say that’s when the collection officially started.”

“Stanley Marcus had impeccable taste,” adds Greg Rohan, president of Dallas-based Heritage Auction Galleries, “and that extended to his art collection.”

The Neiman Marcus Collection today includes more than 2,500 pieces spanning all mediums, including paintings, drawings, sculptures, mobiles and even ancient artifacts and textiles from across the world. Works range from Mexican artist Rufino Tamayo (1899-1991) to French artist and sculptor Jean Dubuffet (1901-1985). Unlike most corporate collections, pieces from the Neiman Marcus Collection are spread across the country, displayed at the company’s 41 full-line Neiman Marcus stores. “Most of the pieces are not housed in a warehouse or in the executive offices,” Kronick says. “The majority of the work is in our stores, on view for customers and associates to enjoy.”

Q: You first came to Neiman Marcus as a private consultant in 1990, correct?

A: I was initially hired on contract to work for four months. I had worked at the Whitney Museum of American Art in New York, and then at one of Leo Castelli’s galleries. I came to Neiman’s as a consultant to work on new store openings. Mr. Marcus had already left the company by then.

Q: How has the acquisitions process changed since Stanley Marcus left?

A: There are two big changes. First, while Mr. Marcus was at the helm, he made most of the decisions regarding art acquisitions. Mr. Marcus had an appreciation for all types of fine art, from textiles to sculptures to mixed media. He was at liberty to buy what moved him, and he made some significant purchases. I could never acquire a Jean Dubuffet today or an Alexander Calder. When I first came to Neiman’s, I thought it would be more wise to acquire three to four important pieces a year and really highlight them within the company and for our customers. But I soon recognized that we have so many spaces and so many stores that it’s better to buy more work and cover more ground. The second big change is that Mr. Marcus bought art without particular spaces in mind. That is why I found a lot of artwork housed in a warehouse, awaiting the appropriate space to be installed. On the other hand, I buy art for site-specific locations.

Q: What is your annual acquisitions budget?

A: I am not at liberty to tell you. The budget does vary, and when we open a new store, the art budget generally is based on the square footage of the store.

Q: What is the most you’ve spent on one piece of art?

A: It would probably be an outdoor piece, something that is much larger in scale. We do not always have the space to accommodate these monumental pieces, but when we do, they make quite a statement.

Q: How many pieces do you acquire each year?

A: It depends if we are opening a new store or working on a major remodel. An average per store is approximately 100 to 150 works. We may acquire several pieces by the same artist, so we may have 25 to 30 artists represented in a given store.

Q: So explain how you go about looking for pieces to fill a particular store.

A: Generally, about a year before a store opens, I begin the process of networking in a particular region. I sometimes start with the gallery guide for a given city and call on galleries from those listings. I also approach art dealers who live in various parts of the country. The ones who I work with understand our parameters, as far as taste level, style and price point. Sometimes I contact the curator at a local museum and inquire about some of the younger local artists who are doing exciting work. In addition to the above sources, I visit artist and gallery Web sites. All of this legwork is done before I make my first trip to the area.

Q: So when do the artists start fitting into your store layout?

A: When I have artists in mind, I look at the scope of their work. I take that information and work hours upon hours on my floor plans, looking at wall elevations and different options. It is similar to fitting puzzle pieces together. Adjacencies are extremely important. For example, if the presence of designer shops create several walls which are seen in the same view, it is crucial that the art pieces are complimentary. The works of art in any given store need to flow. Once I’m comfortable with the fit, I then approach the artist and commission him or her to produce a piece of a specific size. Approximately 85 percent of all the artwork purchased is commissioned.

Q: Most artists must be happy to work with you to achieve your goals.

A: They are usually quite pleased. Neiman Marcus is honored to have their work included in the collection and they, likewise, feel fortunate to have their work featured.

Q: What about artists who don’t want to cooperate?

A: There have been times, yes. Several artists have declined, most likely, because they would rather have their work purchased by a museum or private collector rather than a retailer. We respect their wishes and move onward. There are so many artists doing interesting, sophisticated work in abstraction who are pleased to be a part of who we are and what we do. As for the others, if it’s not a right fit, it would not be a successful project.

Q: You must receive unsolicited portfolios from artists all the time.

A: I get hundreds of portfolios. If an artist sends a package or directs us to his or her Web site and it is not what we are interested in, they are at least owed a response. I typically explain that we work with regional artists, local to where we are opening a new store. We also focus primarily on non-representational work. If someone insists on presenting images of their Western art pieces or traditional botanicals, we politely reply that the work is not in our scope or focus.

Q: So you must get lots of artwork featuring pricey bags and shoes?

A: Occasionally we do. Generally, we don’t mix fashion with art. The more recent acquisitions certainly reflect my taste. If someone else came on board as curator, his or her stamp would be left on this collection, too. But I am not interested in fashion as the subject matter for the art. It is important that the works in our collection stand on their own integrity. They should have the same strong presence and validity, whether they are installed in a retail environment or any other environment.

Q: Are any other themes off limits when you look for art?

A: We focus on abstract, non-representational work. If someone brought you into our Hawaii store, and then 15 minutes later blindfolded you and took you to our San Antonio store, you would see a consistency. Nothing is cookie-cutter in our stores, especially the art. The high level of taste and sophistication are the consistent factors. While we want the work to be interesting and thought-provoking, we believe it can be beautiful and entertaining as well.

Q: But that doesn’t mean you don’t push artists. There have been times you’ve asked artists to do things they don’t normally do, right?

A: I think we sometimes stretch an artist in a way that he or she may not have been stretched before. About eight years ago we asked artist Richard Beckman to create a large sculpture for one of our focal spaces. He had never worked in this large scale before. After some hesitancy, he took on the task, conquering several engineering challenges. The finished piece is dynamic and quite breathtaking. Sometimes, as in this case, we believe that if we can stretch an artist and open them up to something they haven’t considered, the end result can be an exciting step into another phase of their work. If we can encourage an artist to reach beyond his or her potential, it’s a win-win.

Q: Who are some of the artists you’ve acquired whose pieces have now skyrocketed in value?

A: Of course the most noticed price escalations are seen with our larger sculptures, such as our Alexander Calder, Jean Dubuffet, Alexander Liberman and Harry Bertoia sculptures. Some of our limited edition prints have also increased in value over the years. A lot of our artists have certainly received national and international attention.

Importance of Having a Clean Criminal Record

Having a criminal record can be a burden that can limit your choices in life. If you have a police record, there are many reasons why you would want to clear your record. Clearing your record will not only benefit you, but also your family. It will even affect your future personal and employment endeavors.

A police record contains all of the information of a criminal conviction which includes the charge, court dates, and the conviction details. The information will stay on your criminal record for the rest of your life if you do not make an attempt to have the conviction removed. When you have a police record, you will be treated differently than a person with a clean criminal record. For instance, a criminal record will affect your employment opportunities, travel endeavors, potential volunteer activities, and your child custody rights. It can even affect your ability to get bonded. If you have not been affected by your record, it is just a matter of time before your record prevents you from doing something that is really important to you and your family.

Having a police record will affect such aspects of your life as: child custody rights, job promotion opportunities, employment options, education, Immigration and Canadian citizenship status, travel and vacation choices, volunteer opportunities, ability to be bonded, and eligibility to adopt a child. A pardon is extremely helpful in child custody cases. A criminal record is often looked upon unfavorably by a judge. Having a pardon makes a positive impression and shows you are making important and productive changes in your life. Also, depending on your criminal conviction, you may be not be permitted to enter the United States.

A record greatly harms your work life, travel life, family life, reputation, and your self confidence. If you have a criminal record, you should take immediate action to get it cleared such as using the services of a company specializing in obtaining Canadian Pardons and U.S. Entry Waivers for people with Canadian criminal records. Getting your record cleared should be a top priority. The RCMP holds criminal records until you reach 80, and sometimes 100 years old.

It is is important to move forward in life and make the important changes to live a more productive and happy life. Getting your pardon or U.S. entry waiver is one important step to take so that you will not live the rest of your being haunted by your record. A pardons tells people that you have been held accountable and you want to leave your criminal past behind you and move forward in life. A pardon will enable you to do this because once you receive your pardon your criminal record will be by removed from all federal databases. To move beyond your criminal past apply for your pardon today because completing the pardon application takes time. You will have peace of mind knowing that you truly have the freedom to live a happy and quality life.

What Makes a Legal Document "Valid and Enforceable"?

In today’s world, there is no way to avoid dealing with contracts, legal agreements, documents and other legal instruments on a regular basis, especially if you own a small business. When we need to put something in writing to formalize a commitment or agreement between two or more individuals or businesses, our chief concern is that it is legally enforceable if any parties to the agreement fail to comply with its terms and conditions. Another major consideration is the cost of putting the relevant terms and conditions into writing. Before deciding whether to create an agreement ourselves; use a legal form; or hire an attorney, we want to make certain that the end result will be legally valid and enforceable.

For all of us non-lawyers, getting a simple answer to even the most basic legal question can be as difficult as it can be expensive. Sometimes it seems as if there is some sort of conspiracy to keep us from being able to meet our basic legal needs more simply and inexpensively so we can save our legal dollars for more complex matters. So, what we really want to know is how to legally protect ourselves in the most cost effective way possible. So, what makes a legal agreement valid and enforceable?

That sounds like a pretty easy question, right? Wrong! My interaction with the legal community began while I was still in college and worked part time as a paralegal doing title work. Although I had taken some paralegal courses, I received my practical training from both a junior attorney and an experienced paralegal at the firm where I worked. The quality of my training differed substantially depending upon who was doing the training. Whenever I asked the attorney a question, I would get long lectures but few direct answers. For meaningful training, my time was much better spent with Anita, the paralegal, who always gave me real answers to my questions so I could do my job.

In the decades since my work as a paralegal, I have hired countless attorneys for both business and personal matters. From time to time over the years, I have attempted to get various attorneys to give me a straight forward answer to that all important question – what makes a legal instrument legal and enforceable? I don’t know whether it’s because lawyers take a secret oath like magicians to never to reveal the secrets of their profession or some other unfathomable reason, but every response I received reminded me of the non-answers I used to get from the young attorney from my paralegal days. That is, until recently, when I met a highly regarded and newly retired attorney who had specialized in contract law. He shared the following with me:

  • If he were give three written agreements (a) one written collectively by the justices of the U.S. Supreme Court, (b) one a pre-created form, and (c) one written in crayon by the parties to the agreement, he couldn’t proclaim ANY of them to be valid and enforceable. He explained that only the courts had the legal capacity to declare either all or part of an agreement to be legally valid and enforceable. Further, the courts get involved only if an agreement is legally challenged by one of the parties or an outside entity with legal standing (something that the court also decides). If no one challenges an agreement and all parties abide by its terms and conditions, the subject isn’t relevant
  • No matter who creates a legal agreement, it can be challenged at any time, for any reason.
  • The more “plainspoken” and clearly written the document is, regardless of who created it, the more likely it is that the courts will uphold its terms and conditions if challenged.

The bottom line is that paying an attorney to draft simple contracts and agreements is no silver bullet and the premium you pay is no assurance that it would be upheld as “legally valid and enforceable” if challenged.

Now that I have a better understanding of the issues involved, I have been much more willing to use pre-created forms. I also am now more likely to create my own simple agreements and authorizations when the circumstances are appropriate. There are many alternatives to consider when deciding what approach to take when addressing your legal needs. Take the time to consider the various tools available before deciding which solution best fits your circumstances and budget.

California Birth Records – How Can You Order Birth Certificates in California?

Birth certificates are very important for identification purposes. Anyone born in the US is issued one at birth. They are useful for getting a job, getting a driver’s license and several other things requiring identification. However, they can sometimes become lost or damaged. If you need to obtain a copy of a California birth certificate, there are a few things you should know first.

All states, including California allow access to birth certificates, as well as other vital records, including, marriage, divorce and death records. However, the exact process for obtaining a certified copy of a birth certificate varies from state to state.

If you are trying to obtain a copy of a birth certificate in the state of California, you should keep in mind that birth certificate and other similar records, prior to July of 1905, are kept in the county where that event took place. All records since that time are kept in the office of the State Registrar, instead. So, it is important to know what year and what county you are looking for. That way, you will know whether you need to contact the county clerk to obtain the copy, or the State Registrar’s office.

If you are looking for a certified copy of your own birth certificate or that of an immediate family member, chances are that you will want records from after 1905. If that’s the case, you should contact the Vital Records Office in Sacramento, California. You can do so in writing, but, before you do, you may want to call them to check on things, such as fees involved and time it will take to obtain your copy. They can be reached at (916) 445-2684. You will want to have a notebook and pen handy, because you are likely to get a recorded message with such information. Once you are aware of the fees required to obtain a certified copy, you can make a check payable to the Vital Records Office.

Although that method is cheapest, it does take quite a while. It can take several weeks to obtain your certified birth certificate that way. Also, keep in mind that, as of 2003, you are required to sign a sworn statement, in order to obtain a copy. You must have the statement notarized and then mail it in, or it will be returned to you and you will not receive your copy.

If you are more interested in convenience or speed, you may prefer to order your certified birth certificate copy online instead. It is quick and easy. Simply log on to dhs.ca.gov/hisp/chs/ovr/ordercert.htm and follow the simple instructions there. By that method, you can have your certified copy in as little as a few days, depending on where you live.

If you follow all of the regulations that the State of California requires, obtaining a copy of your California birth record should be fairly simple. Once you have it, store it in a safe place, so have to worry about ordering one again.

Stop Wage Garnishment

One day you go to work and find that your paycheck is being garnished for a debt that you owe. This happens to people every day. In addition to all of life’s problems you now are worried about how you are going to pay your mortgage, electric bill, or even buy food. When people are experiencing the described problems associated with having a wage garnishment, normally the first question they ask is, “how can I put a stop to this?” The answer in many cases is that you’ll need the help of a qualified attorney. First, though, it helps to understand how garnishments happen in the first place.

The Creditor Must File a Law Suit

In order for a garnishment to take place, a creditor must have filed a law suit against a debtor and obtained a judgment. Garnishments typically take on two forms. Once a judgment is entered, the creditor has the option of either garnishing wages or placing a levy on a bank account (i.e. freezing a bank account). The creditor must choose and cannot exercise both options at the same time.

Fortunately, there are ways to stop a wage garnishment or bank levy. Options for stopping a garnishment include filing for bankruptcy but can include other methods. If creditors are threatening a wage garnishment or to freeze a bank account without first obtaining a judgment against you, the creditor has violated consumer protection laws including but not limited to the Fair Debt Protection Act. If a creditor has threatened to garnish wages or freeze your bank account without first obtaining a judgment, call a consumer protection attorney to discuss your rights and what steps you should take.

Garnished Wages / Bank Account Levy

Of the two forms of garnishment, most people experience garnishment of wages. Most state codes limit the amount of wages that can be garnished based on a person’s annual income. Typically, twenty-five percent of net earnings can be garnished per pay period until the wage garnishment limit is reached.

When a creditor chooses to levy a bank account rather than garnish your wages, your bank is required to hold the funds for a period of time, which includes any ongoing direct deposits. After the period of time expires, the funds are turned over to the sheriff to be transferred to the clerk of court. After the clerk of court has received the funds, the creditor must file to a Motion to Condemn Funds with the clerk of court in order to receive the money. If the amount turned over to the creditor exceeds the amount of the judgment, the debtor will receive any excess levied funds.

During the levy period, a debtor may not access their bank account to withdraw funds. It is advised that the debtor stop any automatic or direct deposits of pay checks or from other sources. Likewise, it’s advisable to stop all automatic withdrawals from the bank account during the levy period. Continued automatic withdrawals, in addition to the levied funds, can cause significant overdraft fees and bank charges.

Stopping The Garnishment or Levy

Stopping a wage garnishment can be a long and rocky road. Filing a chapter 7 bankruptcy or chapter 13 bankruptcy stops all garnishments and levies. This is because Bankruptcy Code 11 U.S.C. 362(a) provides that once a bankruptcy is filed an automatic stay goes into place restricting all creditors from any collection activity.

If only it were that easy.

Typically, even upon filing the bankruptcy, it will take anywhere from one week to a month or more to stop a garnishment. This is due to several parties having to work together. These parties include, but are not limited to the following: your bankruptcy attorney; the clerk of court where the judgment was entered; the sheriff’s office in the county where the garnishment was served; the payroll department or bank; the bankruptcy trustee; and the creditor’s attorney. Immediately after your bankruptcy attorney files your bankruptcy, they should send a Notice of Bankruptcy to all parties including the sheriff’s office. The sheriff is supposed to immediately notify your employer or the bank where the money is being levied and let them know they are to stop taking the money and release any held wages or money right away. The payroll department, whether local or out of state, can also play a role in how long it takes to stop a garnishment. Also, every clerk’s office and sheriff’s office in each county handles garnishments differently. Issues arise and tend to arise often.

As you can see there are numerous moving parts to getting levies and garnishments released. It’s important that you work with an experienced bankruptcy lawyer that has an efficient and effective method for dealing with garnishments and levies.

Getting Your Money Back

Finally, there is the issue of whether garnished funds can be retrieved and given back to the client after they have filed for bankruptcy. One determining factor is how much money was seized through the garnishment. The amount of funds that can be claimed as exempt decides how much can be returned to you.

This of course adds an additional step to the equation.

Once the garnishment is stopped your attorney must draft and have the bankruptcy trustee sign off on a motion to release funds. You’ll need to be patient and understand that it takes time to get everyone to do what must be done.

Why The Dentist In Finding Nemo Is Not a Villain

When watching the famous and family friendly film Finding Nemo, you may not have paid much attention to P. Sherman the dentist who provided his office as the fish tank home. This is a mistake, because without him and his office, the movie could have never played out in the way it did, and Nemo would have never found his way home. While traditionally considered a villain, P. Sherman is actually shown as a caring pet owner, loving uncle and an accomplished dentist.

In the earlier part of the film, the fish plot an escape plan for when P. Sherman cleans their filthy tank. When P. Sherman sees the terrible state of the fish tank, he makes sure, before seeing any patients, to address the issue and give the fish a sparkling clean tank. The AquaScum 3000 is the latest in fish tank cleaning technology and provides regular pH and temperature checks. Of course this thwarts any plans the fish had made for escape, but it demonstrates P. Sherman’s dedication to the care of his office pets. If fish had teeth, it wouldn’t be a far stretch to think he’d take excellent care of them too.

Most importantly, P. Sherman (with his tools and spit fountain) provides the only way for Nemo’s eventual escape back to the ocean, through the pipes. In the rising action of the film, Nemo plays dead in order to get flushed down the toilet, but it ends up being the spit fountain that he is flushed down as a method to escape. No other profession would offer Nemo this route of escape, which makes dentistry key in this film.

Not only does his office provide a safe and comfortable environment for the fish, they are also gaining a valuable education in watching him practice. In the start of the film the fish remark on an in-progress root canal and display their knowledge of the tools as they discuss. There’s no doubt that any dentist student would jump at such a marvelous chance to observe a true professional at work and absorb so much information about the practice.

Though it’s tough to see without pausing and zooming in certain screen shots, P. Sherman has been awarded a number of awards and certificates. These include, The Toothless Grin of the Society of Denture Wearers, a diploma from the Pixar School of Dentistry and the Gums Most Likely to Recede Award. It’s clear that he’s no hack and takes his work very seriously.

A loving uncle, reputable dental professional and great pet owner, P. Sherman is definitely not any sort of villain. In an animated world designed for kids, it’s important to display the adult characters with strong moral values and positive attitudes. Finding Nemo does this in spades and might even convince some kids to not be so afraid of the dentist in the future. If this film has taught us one thing, it’s that dentists aren’t so bad.

Caregiver Versus Personal Attendant – Wages and Benefits

Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?

If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.

A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.

A caregiver or “care custodian” is defined by Section 15610.17 of the California Welfare and Institutions Code as:

“… an administrator or an employee of…public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff.”

A “personal attendant” is not entitled to overtime compensation, unless: (1.) he or she is a live-in employee; or (2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or (3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.

In these three instances, the household worker is no longer considered a “personal attendant” and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.

Personal Attendant As Defined In CA IWC Wage Order 15:

Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines “personal attendant” as follows:

“‘Personal attendant’ includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of ‘personal attendant’ shall apply when no significant amount of work other than the foregoing is required.”

Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on “companionship services,” to wit:

“…(T)he term ‘companionship services’ shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.”

Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:

“The term ‘companionship services’ does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse.”

Thus, the acceptable duties of a “personal attendant” involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A “personal attendant’s” duties of “supervising” would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.

As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a “personal attendant,” he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as “personal attendant” also excluded minimum wage in California.

This overtime compensation exemption also applies to “personal attendants” as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.

Benefits Of Household Workers:

A. Minimum Wage:

The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and “personal attendants”) but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.

There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.

Independent contractors are not covered by minimum wage and overtime compensation statutes.

B. Overtime Pay:

Household workers who are not live-in employees, as well as “personal attendants” who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.

Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 3(A)-(B) (8 Cal Code Regs. 11150(3)(A)-(B)).

Under federal law, 29 U.S.C. 213(a)(15), “any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves” is granted exemptions from minimum wage and overtime pay.

C. Other Benefits Of Household Workers:

1. Hours And Days Of Work:

A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 3(A).

Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 3(B).

2. Rest And Meal Periods:

Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 11(A).

Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 12(B), 11(D). But “personal attendants” are not granted rest and meal periods.

3. Meal And Housing Deductions From Wages:

The employer may subtract meal and housing credits from the employee’s paycheck if: (a) the employee actually uses the meals and is provided with housing; (b) meals and housing are used as salary to comply with the minimum wage; and (c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.

Meal credit may be deducted as follows: breakfast – $2.45; lunch – $3.35, and dinner – $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 – 2001 10(C).

In summary, whether you are a caregiver or a “personal attendant” entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.

(The Author, Roman P. Mosqueda, practices wage and hour law in California.

This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)

Pros and Cons of Using a Professional Linen Services

Many larger businesses and facilities that deal with linens on a daily basis turn to the use of a professional linen service in order to get those items cleaned, pressed and ready for use. However, a laundry service is not always the best option, just like hiring individuals to launder those linens, for some companies, is also inefficient. For nursing homes, hospitals, restaurants and hotels, there are many positives and negatives as far as sorting out linen are concerned.

On the positive side, linen services save the establishment time and manpower. Rather than going through the process of hiring housekeeping staff to take care of the linens for a hospital, hotel or nursing home, the time of the administration can be better spent managing the other daily aspects of the facility. There is no rapid employee turnover in the laundry department, either, since linens are simply picked up and dropped off on a regular basis. For restaurants, a this type of service makes even more sense as far as staffing is concerned. Many eating establishments are so small that it simply does not make sense, monetarily, to hire individuals dedicated to cleaning linens every night.

The need for fewer staff members may make the hiring of linen services more cost-effective for larger businesses and health care facilities, but services are actually less affordable for smaller establishments. A diner in a small town might be charged more in order to have restaurant linens picked up and dropped off regularly, and the proprietor of a family owned eatery will likely find it cheaper to just take the tablecloths and napkins home and launder them himself than hire the work out to someone else.

Delivery time is also a factor to consider when debating whether or not to hire a linen service. Larger cities will have a much faster turnaround rate for clean linens than smaller areas where only an individual or single business may provide linen service. In any case, a business that hires a linen service takes a chance on not having its items ready for use when they are needed. When clean and sanitary linens are necessary, such as with hospital linens and those for nursing homes, this can create a huge problem that is avoided by just hiring laundry staff to do the work in-house.

Organization and sanitation are two final factors to consider. Most of today’s more successful linen businesses document every pick-up and delivery and arrive on a schedule set by the business hiring out the restaurant linen or hospital linen services. This takes a huge load off of the business owner or administrator as it puts someone else in charge of coordination of efforts and making sure every item that goes out also returns. Linen services are also able to properly sanitize the items they clean, which may or may not be the case in an internally run system.

Whether linen services are good or bad for a business boils down to the needs of each individual establishment. For some, linen services are a worthwhile investment, and for others they are an expensive exercise in futility when the work could be done better and cheaper in-house.