OGC Referral Process for Probate & Estate Matters

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1 OGC Referral Process for Probate & Estate Matters Kevin C. Brown June 17, 2015

2 What are Estate accounts? When an individual who owes a debt to a UT institution dies, an estate account is created. The most common estate account our section handles is the medical billing account of a deceased patient that still has an outstanding balance at one of our health institutions. It must be a person treated by your medical institution The patient has died but not necessarily at the institution How would you find out a patient has died if they did not die at the institution? Regular searches of the Social Security Death Index Returned statements with deceased written on them A death certificate is mailed in A relative notifies you Receiving a four (4) month notice from the estate representative

3 What are Estate accounts (cont d)? There must be an outstanding balance on the account this includes all balances whether pending with insurance, bad debt or patient responsibility Those combined balances must meet the minimum of $2,500 for referral unless a 4 month notice was received, then a judgment based on cost of referral must be made There is an increased likelihood that some or all of the balance will be paid if someone is taking the time to probate the estate Cost for referral - $50/account type (hospital and physician) and 25% of collected amount pre-litigation or 30% of collected amount post litigation

4 What needs to be included in the referral? This depends on the institution and whether we can access their billing systems. If we have access to the billing system, we just need a name and medical record number. If we don t have access to your billing system, then we need patient demographics, debtor financial information, a death certificate if received, a 4 month notice if received and the total current balances owed for each side if you have a facility side. Patient Demographics full name, address, medical record number, social security number, date of birth, date of death, marital status, guarantor if other than patient, spouse or next of kin contact, their address, and last county of residence

5 What needs to be included in the referral (cont d)? Debtor financial information Did the patient qualify for charity care? If so, what percentage 50%, 100%, or another amount? Was the discount limited to certain dates of service? The death certificate if one was sent in It s a good policy to request a copy of death certificate if you were notified of the patient s death They can provide additional information that was not already in the billing system The Four (4) month notice if sent in by the estate representative It is typically a legal looking document stating that the patient has died, the estate is being probated, and you have four (4) months to file a claim This type of notice needs to be expedited to the Claims Section of OGC It will provide us with a contact point and case information so we can timely file a claim

6 What needs to be included in the referral (cont d)? All balances owing on this patient s account This includes both hospital (facility) and physician (professional) charges Claims against the estate must include all contingent amounts which means all balances that are due or may become due so make sure to include balances still pending with insurance and anything put into bad debt The UT System and its institutions are state agencies. As such, we are exempt from the four year statute of limitation on collection of a debt per Section , Tx Civil Prac Rem Code so, those charges, no matter how long ago they were put in to a bad debt code, are still due and should be included in a referral. Are any balances still pending with insurance? We include language in our claims and letters of inquiry (initial contact letters) letting the estate representative know that some charges are still pending insurance and the balance(s) may come down

7 What happens once it is referred? A file is opened and a search is performed in the state of residence to determine if the estate is being probated. If the estate is being probated, then we will most likely file a claim with the court A claim is a formalized bill, not a law suit In dependent administrations, we may have a short 90 day period to file suit if the claim is denied by the administrator We handle matters across all 50 states but rarely work on out of country matters We are in compliance with the new e-file regulations for Texas Probate Courts. As of July 1, 2015, all Texas counties with a population over 50,000 must have an e-file system in place If no probate case is found, then we will contact the next of kin or emergency contact with a letter of inquiry. If there is a spouse, we can pursue them for payment of the debt jointly or separately from the estate. The State of Texas, and a majority of the other states, has a law that recognizes that a spouse is personally liable for a debt arising from medical care Tx Family Code

8 What happens once it is referred (cont d)? Any time we send a letter to a representative of the estate, we need an updated balance We have access to one billing system but with others we rely on contacts at the Institution for updated balances Once again, it is important that we get a full and complete balance to include on the letters. Once contact has been made, we work with the family, estate representative, insurance representative and/or attorney to resolve the outstanding balances We do this by mailing out itemized statements for the charges and going over how copays, coinsurance and deductibles work We explain how to read the statements they have received from the Institutions We review explanations of benefits sent in by the estate representatives to see if there are valid defenses to the charges such as part of another procedure, failure to timely file, additional documentation needed or if there was no preauthorization

9 What happens once it is referred (cont d)? When the balances are agreed to, we can use Financial Evaluation Forms and Inventory & Appraisements to determine if a discount is warranted. We will also utilize online resources to confirm asset information. An Inventory and Appraisement is a standard filing in a probate proceeding and provides a list of assets. Our Financial Evaluation Forms include a two page financial statement form and a one page cash flow statement. In addition, we can check with the tax appraisal district to see if the decedent owned real property or conduct a Westlaw search to see if there are any personal property records on file for the decedent. Tx Property Code sets out property that is typically exempt from creditor s claims, amendments this session have increased the exemptions

10 What happens once it is referred (cont d)? Whether the estate is paying in full, a settlement was reached or a payment agreement is put in place, we have the checks mailed to our office to make sure the payment is applied per our agreement with the estate. Checks are usually forwarded to the institutions at the end of each week. Large checks are forwarded as soon as possible. These letters may also give instructions as to closing the account.

11 How will you know to close the matter? Once we have determined that there are no viable sources for further payment or that the balance is paid in full, we send a close letter to the institution explaining our reason for closing the matter. Typical reasons include paid in full, settled must adjust remaining balances, insufficient assets, no responsible parties, bad addresses, statute of limitations, balance is zero, unable to confirm death (embarrassing to have the deceased call us), claim on file (may be no visible assets but we keep the claim on file in case something shows up), small balance (not worth filing suit over), or out of state (mixture of cost of court case and different laws such as a statute of limitation or a requirement that you hire local counsel)

12 Tips for handling estate accounts You are not writing off the balances. The outstanding charges are being forwarded to the Office of General Counsel as required by state law. The balances are still due. If an estate representative would like to contact us, they can call (512) and ask to speak with Miranda Macias or Lance Willard. Miranda and Lance are the legal administrative assistants that work on Estate matters. They can answer questions about our process and take the information needed to open a file. We need all of the outstanding balances This includes all of the hospital and physician (facility and professional) charges that are unpaid such as patient balances, insurance pending balances and bad debt. It s embarrassing to settle a balance or be in the process of settling a balance and find out there were additional charges due that were not reported previously.

13 Tips for handling estate accounts (cont d) Timely referral remember that the clock is always ticking with an estate We don t want to miss out on payment because we missed a four (4) month deadline or the money was already distributed. Some states apply their statute of limitations on collection of a debt and instead of a four month window with personal notice can drop to as few as two months to file a claim SB 462 will go into effect on September 1, 2015 and authorizes a transfer on death deed A real property owner can file a transfer on death deed and have their ownership interest automatically transferred to someone else at their death This can greatly reduce the strength of the claim we filed against an estate Currently, our claim clouds the title of real property inhibiting its sale or transfer until the claim has been resolved After September 1, 2015, a person can file a transfer on death deed and avoid the issue with a clouded title for that first automatic transfer Creditors still retain their right to pursue the real property for payment of a debt but the window for doing so is dropped to two (2) years from the debtor s date of death and you will likely incur court costs in pursuing this asset.

14 Rules requiring referral to OGC Comptroller s Accounting Policy Statement 27 https://fmx.cpa.state.tx.us/fm/pubs/aps/27/index.php Restates TAC requirements and sets out procedures for adjusting obligations to bad debt Uniform Guidelines and Referral of Delinquent Collections Title 1, Part 3, Chapter 59, Rule 59.2, Texas Administrative Code (TAC). Outlines procedures regarding collection of obligations by state agencies and indicates agencies should establish collection guidelines Chapter 2107, Texas Government Code Includes guidelines to be followed by state agencies in referring accounts to the Attorney General or outside agencies PORTIONS ARE NOT APPLICABLE TO UT SYSTEM BASED ON A DELEGATION OF AUTHORITY

15 Rules requiring referral to OGC (cont d) Title 1, Part 3, Chapter 59, Rule 59.2(c)(1)(A), Texas Administrative Code (TAC). The Attorneys in the Claims and Financial Litigation section of OGC have delegated authority from the Attorney General s Office to represent UT System and its Institutions in the litigation of certain matters which includes probate matters Policies Regarding Clinical Enterprise Business Operations, UT System Administration Policy UTS 155 Cash Management and Cash Handling Policy, UT System Administration Policy UTS 166

16 Rules requiring referral to OGC (cont d) Regent s Rules and Regulations, Series 40701, Section 1. Obligates UT health care institutions to obtain payment for services rendered except in the case of indigent patients

17 Important Notes for UT Institutions Can a UT Institution pay current wages directly to a surviving spouse of a deceased employee? Yes. While the Texas Workforce Commission has stated it is a best policy to wait for the executor or administrator of the employee s estate to collect the pay, Section (a) of the Texas Estates Code permits the employer to release the pay to the spouse based on an affidavit stating that the affiant is the surviving spouse and that no one has qualified as executor or administrator of the deceased s spouse s estate. We are available to assist as these situations come up. Creditor access to debtor s financial information at banks if no probate HB 705 or, as of September 1, 2015, Chapter 153 of the Texas Estates Code Creditors can seek a court order requiring a financial institution to provide the balance of each account held by the deceased if no probate proceeding has been initiated and ninety (90) days have elapsed since the decedent died. Certain types of accounts are exempt: one with a beneficiary designation, a P.O.D. account, a trust account or an account with a right of survivorship.

18 Probate Process in Texas Probate is the process of gathering all of the assets of the decedent s estate, paying their debts and distributing any remainder per their will or state intestacy laws. What follows is a brief overview of the steps in the probate process and does not cover every possibility and some steps may be in a different order. The first step is to file an Application for Probate in the county probate court where the decedent resided or died. Based on this Application, the County Clerk will post a notice at the courthouse giving any interested parties the opportunity to contest the will or administration of the estate over the next couple of weeks.

19 Probate Process in Texas (cont d) After two weeks have passed, the assigned judge will hold a hearing and legally recognize that the decedent died, that the court has jurisdiction over the matter, whether the person submitting the application is qualified to administer the estate and whether there was a valid will. Executor vs. Administrator and Independent vs. Dependent Within thirty (30) days of appointment, the administrator shall publish a Notice to Creditors in the County newspaper letting Creditors know that the estate is being probated, they must file a claim against the estate if they want to be paid, the name of the administrator and the name of the attorney representing the administrator. In addition, the Texas Estate Code allows the administrator to give Permissive Notice by certified or registered mail to known creditors and start a four (4) month deadline for filing a claim.

20 Probate Process in Texas (cont d) The administrator will then make an inventory of the assets owned by the decedent and file this Inventory and Appraisement with the court. This should occur within 90 days after they are appointed unless granted a longer period of time by the court. If there is a valid will, then the administrator will notify the beneficiaries of the estate within 60 days of appointment. If there was no will, the court must determine the heirs based on Texas intestacy laws. If there are any disputes by potential heirs or beneficiaries, the court will hear those issues and make a decision prior to final disposition of the assets.

21 Probate Process in Texas (cont d) The Texas Estate Code provides for eight (8) classes of claimants. In the case of medical expenses for last illness, the creditor would split the first $15,000 in assets with funeral expenses as a Class 1 claimant. Any amount still owing after this split would fall back to a Class 8 claim and classes 2 through 7 would be paid prior the remaining balance. Parties within a single class will normally split the amount available pro rata if there are insufficient funds to settle all of the debts in that class. Once all debts against the estate are settled, the heirs or beneficiaries will split the remainder per the will or Texas intestacy laws.

22 WRAP UP More QUESTIONS? (if time!) This is one presentation in a series of seminars that OGC will be offering this year. For more on Estate Referrals please contact Kevin Brown at or We will be ing you a written set of all of the questions (and answers) we didn t get through today.

23 Thank you for your support We hope you will tune in again next month! If would like to set up a training on another legal topic through the UT System Office of General Counsel, please contact Tamra English or Jason King

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