NFIB’s press release declares that they joined the lawsuit to fulfil their mission of promoting and protecting the rights of small business owners.  The New York Times also has an updated story.  Mary Brown is an uninsured owner of an automobile repair shop in Panama City, Fla.   Kaj Ahlburg is from Washington State and prefers to pay his medical bills from his own funds rather than being compelled to obtain insurance.

The joining by NFLB and these two individuals addresses one of the  concerns over “standing” that may yet be raised in the Federal government’s response, which I understand is due June 16 with oral arguments scheduled for September.  Procedural rules, discovery and other filings such as motions may, in my opinion, push oral arguments later into the fall.

An excellent news review was posted by Amanda Coyne in the Alaska Dispatch titled Does Alaska have standing to sue over health care?

The issues need to be narrowed by the Federal government’s response before I can say more using statute and case references.  In addition, Congress may further revise the Act. But I will keep you posted!  www. garycjohnsonlaw.com

Representative Roberts presented House Bill 10-1025 which was recommended by the Interim Committee to Study Hospice and Palliative Care. The bill, recommended by the Interim Committee to Study Hospice and Palliative Care, repeals and reenacts the Colorado Medical Treatment Decision Act. The Colorado Medical Treatment Decision Act affirms the right of each patient to accept or reject medical treatment and creates a procedure to make such decisions in advance through a written declaration. The bill amends C.R.S. 15-14-501 et seq.  Note that sections 15-14-503 to 15-14-509 are known and may be cited as the “Colorado Patient Autonomy Act”.

This section of Colorado law to be amended is found in the Colorado Probate Code under Article 18 “Declarations – Future Medical Treatment.”  The bill itself can be found here.

The bill defines appropriate language to include in your living will, aka Physicians Directive or Advance Directive. A primary source of problems with some living wills was the lack of adequate definitions.  This bill is intended to bring Colorado’s laws in better alignment with the definitions used by the American Medical Association. The legislative recognition of the definitions used in living wills will be helpful to individuals and practitioners alike.  The unfortunate case of Terry Schiavo should encourage all of us to keep our living wills updated. Now is a good time to update and integrate your revised living will with the rest of your estate plan.

What is interesting to me as you read the Revenue Ruling is that each state has different coverage estimates.  For example, Idaho individual is $4,215 family 9,365 while Massachusetts is $5,700/$14,138.  That means that instead of a national uniform health program we will get different programs in each state.  The slippery slope here is that those states that offer more affordable premiums may attract more businesses.  Yet that is no guarantee that the quality of the care in those states will improve.  Nor is it a guarantee that the states will have the funding nor that  the insurance companies will have the incentive to issue policies in those states.

Okay.  You say that is what we had before.  Agreed.  The difference is that we now have another layer of government bureaucracy on the federal level overseeing a new layer of government bureaucracy on the state level powered by new insurance company actuary-determined premiums on a state by state basis. AND if you don’t comply you will face a federal penalty.  All paid for by us taxpayers.

This Revenue Ruling assists tax lawyers and accountants plan for the tax credits pursuant to The Patient Protection and Affordable Care Act for small businesses designed to increase levels of health insurance coverage. This year small businesses, defined as businesses with 25 or fewer employees and average annual wages of less than $50,000, are eligible for credits of up to 35% of non-elective contributions the businesses make on behalf of their employees for insurance premiums. Tax-exempt organizations are eligible for credits of up to 25% against payroll taxes. Any questions?  Contact  the Secretary of Health and Human Services.

Incidentally, Idaho has joined the lawsuit filed by 13 other states originated by Florida and joined by Colorado challenging the constitutionality of the Patient Protection and Affordable Care Act of 2010 as of March 23, 2010.  The suit now includes the States of Idaho, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington and South Dakota.  You can find the original filing in my earlier blog post http://www.garycjohnsonlaw.com/Wordpress/2010/04/florida-colorado-v-us/ .

“…Eye for eye, tooth for tooth, hand for hand, foot for foot…”Exodus 21:22, Leviticus 24:17; Deuteronomy 19.16 vs “…whosoever shall smite thee on thy right cheek, turn to him the other also.” Matthew 5:38.

Not to get theological, but the upcoming trial of Judge Garzón in Spain reminds me of the difference between “justice” and “the rule of law.” “Justice” implies a concept of righteous retribution while on its face seems to be “mirroring”. The rule of law, on the other hand, is applied impartially and without the emotional lust for revenge sometimes seen in demands for “justice.” That is quite a significant difference. Some laws are designed to incorporate an element of mercy. It is my opinion that the 1977 law passed in Spain was designed for that element of mercy and to help establish the new democracy in Spain.

Do not misunderstand me. When injustice is done then there should be a remedy. However, when injustice is done on a grand scale and society as a whole suffers if retribution is demanded, then there may be circumstances that dictate an “amnesty” that should not be challenged. A good case in point is what happened after WWI when Germany was forced to pay onerous reparations to the winning allies. Those staggering reparations were, in part, responsible for the rise of Hitler.

I lived in Spain during the Franco years. Horrible crimes were committed by both sides in the Spanish Civil War. There are persistent facts and rumors that support the proposition that horrible crimes were committed during Franco’s time in power.

An old english saying is “Let sleeping dogs lie.” This may be the intent of the 1977 law. Don’t restart the conflict. Let it go. A good example in the USA was when President Johnson issued the Amnesty Proclaimation of May 29, 1865 in an attempt to end the post-civil war conflicts. http://www.civilwarinteractive.com/DocsJohnsonAmnesty.htm

Much like in a divorce, there comes a time when the animosity must stop and you must get on with your separate lives. However wrong and bitter it may have been. By attempting to prosecute decades-old crimes Judge Garzón is seeking justice but defying the rule of law. It will be interesting to see how this plays out in Spain.

The New York Times published an article in defense of Judge Garzón. http://www.nytimes.com/aponline/2010/04/07/world/AP-EU-Spain-Judge-Indicted.html Judge Garzón has undeniably established a stellar reputation as being unafraid of the powerful in pursuit of justice. Yet with success often comes arrogance. In this matter, I believe that Judge Garzón overstepped his powers as a jurist because those powers derive solely from the rule of law. Enforcement of the 1977 amnesty law is more important than resolute pursuit of justice. That is not a wrong position.

It disturbs me when the press asserts that jurists have a religious or political motive. The best jurists, in my opinion, are those who apply the law. It may not be “justice”, but it is the law. If a law happens to be unconstitutional, then it should be declared so by judges. If not, then the law must be applied. If a law is unjust then legislators, not judges, should change the law if it furthers the best interests of the people. “Activist” judges who decide on their own that a law is unfair or unjust and act accordingly are egotistical and arrogant and should not be judges. “Strict constructionist” judges are, in my opinion, the intent of the constitution.

The only real question in my mind is whether he should be prosecuted. He has already been suspended from his judicial position and if convicted will be removed from the bench for 10 to 20 years. It seems a dreadful shame for such an illustrious jurist to be put on the sidelines, but even the best of us sometimes fail.

The VA requires attorney applicants meet their standards to ensure that VA claimants receive “qualified assistance in preparing and presenting their claims.” At a minimum, an attorney must be a qualified and competent in these areas: VA representation, disability compensation, dependency and indemnity compensation and pension benefits, claim procedures, eligibility requirements, and appeal rights. Of course, I had to demonstrate that I am of good character and reputation.

Now that I am accredited, I have to be certified on an annual basis, meet continuing legal education requirements, and generally maintain standards of conduct and comply with applicable laws set forth in the United States Code and the Code of Federal Regulations.

Attorneys who are not accredited may not assist claimants in preparing, presenting or prosecuting VA claims. They are, in fact, prohibited by law. See 38 USC chapter 59; 38 CFR part 14[especially 14.632, 14.629(b)(4), 14.629(b)(1)(iii) & (iv)].

My fees in representing a VA claimant are also regulated. Assistance in filing in certain forms, such as an eligibility verification report (“EVR”) is free. However, if the VA issues an adverse decision on a VA claim for benefits and the claimant files a notice of disagreement (“NOD”) or an appeal, then I can charge reasonable fees.

It is a great privilege to be able to represent you, the veteran.

Anyway, I thought it would be a good way to “give back” a little of the many blessings that have been given to me. If you like it, send me an email.

PS My website is only about a month old and is still not where I want it to be nor where it will be. For better and worse I have written it all myself (in Dreamweaver) and there is a heck of a lot more writing to do!

What am I talking about?  The Estate Tax law was allowed to “sunset” this year.  It means that the estate of anyone dying in 2010 is not subject to estate taxes.  However, it comes back in 2011 with a vengeance.

The biggest problem with the pretty notion that there are no estate taxes this year is that most trusts created in the last 20 years contained an “A-B” provision.  A trust with an A-B provision creates two trusts upon the death of one spouse.  The A portion of the trust remains for the benefit of the surviving spouse.  The B portion is transferred to their heirs to maximize the benefit of  the decedent’s “uniform credit” so the decedent’s uniform credit  is not lost and estate taxes are minimized on both the decedent’s estate and the survivor’s estate.

If there is no estate tax then theoretically the entire estate should be transferred to the heirs and not the spouse because that will maximize the estate tax benefit.  Determining which assets are best transferred is no longer an issue because everything goes to the heirs.  Children, charitable institutions, and other heirs will probably file suit because of this issue.

Next year the estate tax returns.  But while the exemption amount was $3.5million in 2009, the exemption amount  in 2011 will only be $1million and the tax rate will revert to 55%.

It is time to revisit your estate plan AND you will want to revisit it next year AND you will want to revisit it again if and when Congress passes any legislation regarding estate taxes.

http://myfloridalegal.com/webfiles.nsf/WF/MRAY-83TKWB/$file/HealthCareReformLawsuit.pdf

To my knowledge, the US has not yet responded.

The suit asserts two constitutional violations in support of its demand. Violation of Articles I & amendment X.

Several issues come to mind:

(1) Constitutionality. Several state Attorneys General have already filed lawsuits challenging the constitutionality of the act. To divest itself of responsibility, the Act transfers substantial responsibility to the states. Yet it does not provide a funding vehicle to ensure that the states will be able to fund their share of the costs. Also, the Act requires individuals to purchase non-government funded insurance or pay a penalty. Businesses are having to seriously look at their medical insurance costs to determine if it is better to drop their employee coverage altogether and simply pay the 8% fine. There was a good article in the Denver Post by John Conlin about this issue. http://www.denverpost.com/recommended/ci_14749931

(2) Veterans are at severe risk. The Act did not address exempting VA patients. At all! See http://www.vfw.org/index.cfm?fa=news.newsDtl&did=5415[3/25/2010 12:15:13 PM] Support the Burr Amendment!

SUMMARY: We do not yet know how the Act will impact our country. In fact, it may not even be implemented since it is very likely the Supreme Court will hear the State’s Attorneys General cases and may overturn the Act. Nonetheless, it will have far-reaching effects and we should all be very cautious and strive to create an effective, fair and uniform health care system.