September 2, 2010

Health Insurance Tax Credit

Thanks to the Patient Protection and Affordable Care Act (also known as the Health Care Act) beginning in 2010 qualified small business employers may receive a health insurance tax credit for purchasing health insurance for their employees.

A qualified small business employer is one that meets all three of the following criteria.

  • The Organization employs no more than 25 full time equivalent (FTE) employees during the tax year, where one FTE equals 2,080 hours for the year. In this calculation seasonal workers who work less than 120 days during the tax year would be excluded.
  •  Total wages divided by the number of FTE employees is less than $50,000 after rounding down to the nearest $1,000.
  • The employer pays at least 50% of the premiums of a qualified health plan for employee coverage and the same percentage of premium is paid for each employee.

For tax-exempt qualified small business employers for tax years beginning in 2010 and through 2013, the credit equals 25% of the lesser of:

  • The amount of contributions the employer made during the tax year to its qualified health arrangement for qualifying health coverage for its employees. (Employee elective contributions do not qualify.)
  • The amount of contributions the employer would have made during the tax year to its qualified health arrangement if each employee had enrolled in coverage with a small business benchmark premium.

The small business benchmark premium will be determined by the Secretary of Health and Human Services each year on a state-by-state basis. The IRS will then provide the information. In addition, the credit cannot exceed the total amount of income and Medicare tax the employer is required to withhold from employees’ wages for the year plus the employer’s share of Medicare.

For tax years beginning after 2013, the credit for tax-exempt qualified small business employers rises to 35%. For for-profit qualified small business employers, the applicable credit percentages are 35% for tax years beginning in 2010 and ending before 2014 and 50% for tax years beginning after 2013.

A phase-out is in place for organizations that employ more than 10 FTE employees that have average FTE wages of more than $25,000. However, any organization under these thresholds qualifies for the full credit.

For for-profit organizations the credit is claimed on the employer’s annual income tax return. For a tax-exempt employer, the IRS will provide further information on how to claim the credit.

Jodi Garrison
jgarrison@ddfky.com

Garrison Jodi

August 17, 2010

The Price is Right? New IRS Rules Lead to Inconsistent Interpretation on Fair Market Value Measurements

The new Form 990 now requires private colleges and universities to report nontaxable perks as part of total compensation packages.  For many college presidents, one of the biggest nontaxable perks to be included is the fair market rental value of presidential housing.  This has become a focus area of discussion due to inconsistent interpretation of the requirement by different institutions. 

The IRS rules do not specify what portion of presidential housing should be considered compensation.  In a review of 10 private institutions, The Boston Globe discovered a wide range of valuation approaches.  Some schools conservatively valued the entire home as compensation, while others argued only the personal quarters of the school’s president considered to be private residence would be included as compensation, since many schools use areas of the president’s home for public functions.  This has sparked discussion not only in the higher education arena, but the real estate market as well, with many real estate specialists claiming the fair rental value of presidential homes would be worth much more on the open market than what is being reported by the schools.

Other hot button areas of disclosure under the new requirements include maid services, health and social club dues, and first class travel.     

The aim of the IRS in requiring these disclosures is to more accurately depict the nature of compensation of top administrators at colleges and universities in an effort to make the school operations more transparent to the public. 

Link to Boston Globe article:

http://www.boston.com/news/education/higher/articles/2010/06/13/light_shed_on_housing_for_college_presidents/?p1=Well_MostPop_Emailed4F

For more information please contact,
Rachel Brown
rbrown@ddfky.com

August 6, 2010

Medicaid Cost Containment Task Force Begins Seeking New Ideas

A meeting of the Medicaid Cost Containment Task Force and Medicaid Oversight and Advisory Committee was held on Tuesday July 20 in Frankfort, KY.  This is a joint Senate-House task force charged with advising the legislative chambers and the administration on approaches to reduce the growth in Medicaid spending.

Elizabeth Johnson and Neville Wise, Commissioner and Deputy Commissioner of Kentucky Medicaid, made a lengthy presentation to Senate and House members of the Task Force and Committee.  The Task Force and Advisory Committee included a number of lawmakers including Senate President David Williams and House Speaker Greg Stumbo, both aspiring governors.

The presentation by Commissioner Johnson and Deputy Commissioner Wise covered:

  • An Overview of the Medicaid Program
  • Medicaid Cost Drivers
  • Medicaid Cost Containment Measures
  • Medicaid Pharmacy Benefit

Medicaid provides coverage to approximately 800,000 of Kentucky’s most vulnerable citizens, including 60,000 children.  Medicaid paid for 21,000 births in Kentucky in 2009, approximately 37% of all Kentucky births for that year. That’s a startling percentage given that Medicaid is intended to cover our poorest citizens.

Kentucky’s Medicaid program has seen unprecedented growth in the number of new enrollees over the past year due to a weakening economy.  During 2009, over 3,000 new recipients were added each month compared to 930 per month in 2008.  Most of the new recipients were children.

According to Commissioner Johnson, Medicaid is the primary payer of healthcare in Kentucky.  Medicaid has approximately 40,000 enrolled hospitals, physicians and other providers. 

Commissioner Johnson identified the following cost drivers during 2009:

  • Extraordinary Events
    • Hospital Inpatient Medicaid Settlements
    • American Recovery and Reinvestment Act Payment Acceleration (stimulus funds provided to shore up state shortfalls)
  • “Unprecedented” Eligibility Growth related to the poor economy
  • Cost and Utilization Growth
    • More physician offices converting to Primary Care Centers and Rural Health Clinics (with enhanced payment rates from Medicaid)
    • New services
    • Physician payment increase

The Medicaid cost containment measures taken, or to be taken by Medicaid include the following:

  • Post payment pharmacy audits
  • Prior authorization of certain drugs
  • Changing time when recipients can refill a prescription
  • Fill prescriptions from Medicaid Providers only
  • Modify coverage of OTC medications
  • Enhanced Lock-In Program
  • Quit paying for hospital acquired conditions and never events

Efficiencies achieved by Medicaid outlined by Commissioner Johnson are as follows:

  • Diabetic supplies to be purchased through pharmacy instead of DME
  • New Program Integrity Support Vendor
  • Implement recoupment from providers billing in excess of coverage limits
  • Revenue Intercepts
  • Health Insurance Premium Payments

The following is a list of Medicaid benefit expenditures for selected categories of service in 2009:

  • Inpatient and Outpatient Hospital      $1.05 billion
  • PCC and RHC                                                 $149 million
  • Community living waiver                        $241 million 
  • Physicians                                                       $339 million

Total expenditures for these selected programs in 2009 were $1.78 billion (total Medicaid spending, when including other services such as nursing home care were about $5.5 billion). Commissioner Johnson outlined a total savings of $65 million or 3.6% of the selected services (around 1% of total spending) from the above cost containment measures and efficiencies. Some of those measures have not been implemented as yet.

One interesting point made by Senate President Williams was that Kentucky has many people in low wage jobs that have employer sponsored insurance.  These people would most likely qualify for Medicaid.  In 2014, when coverage mandates begin with Health Care Reform, he speculated that some employers will drop their health insurance and pay the penalty tax.  If this happens, many of these people will likely become Medicaid recipients.

There was much discussion about the Lock-In program proposed by Medicaid.  This is a program where recipients, who have certain utilization characteristics (inarticulately referred to as “frequent flyers” in the industry), will be “locked-in” to a primary care provider, pharmacy, and hospital for non-emergent care.  Commissioner Johnson estimated the savings for Medicaid would be approximately $5 million.  If a recipient goes to the ER for non-life threatening services, the Hospital is to discharge the recipient to their primary care physician (PCP) and will be paid an assessment fee only.

President Williams discussed Medicaid’s “Wrap Around” program.  This is where a Medicaid recipient is covered by an employee sponsored health insurance plan.  Medicaid would pay the recipients premium and be a secondary payer.  The discussion centered on whether the Kentucky Medicaid program was actually saving money with such a program.  Commissioner Johnson wanted to determine if more recipients are eligible for this program.  Senate President Williams wanted the Commissioner to quantify the savings the “Wrap Around” program brought to Medicaid.

Finally, Speaker Stumbo wondered aloud if savings could be achieved by scaling back “optional” programs. For example, pharmacy, dental and home care services are provided at the option of the state. There was some discussion, led by Representative Jimmie Lee of Elizabethtown, around the “unintended consequence of eliminating one of the so-called optional services”. For example, eliminating pharmacy coverage might result in diabetics not getting needed medicines and ending up in the hospital, thereby increasing costs in excess of the savings from cutting the drug benefit.

 

Dean Dorton Ford’s Point of View

Kentucky’s administrative and legislative leaders face many tough decisions over the next several years.  With growing enrollment as a result of the weakened economy and a reduction in federal matching funds from stimulus-enhanced levels, clearly something must be done to bring the Medicaid program under control.

It’s not just a question of saving money. Many are questioning our funding priorities from a longer-term strategic perspective. The Kentucky Chamber of Commerce has pointed out that the increasing percentage of the state budget devoted to Medicaid is coming at the expense of funding for education. Independent of that report, The Kentucky Institute of Medicine has published data showing that poor health status is directly correlated with low education levels.

We are racing to the bottom in this endless pattern of poor education, rising poverty, poor health status and ultimately a workforce that is holding our Kentucky economy back from any real growth.

In our view, this pattern must be reversed.

We believe the citizens of the Commonwealth should commit firmly and finally that our long-term priority will be to provide an outstanding education to every Kentuckian, whether through public or private schools. Our benchmark comparison should be to student achievement in India and Asia, not Arkansas, Illinois or California. Our Medicaid program should be examined with that long-term strategy as a backdrop.

We also firmly believe that health care costs, within Medicaid and generally, are driven by personal choices, in many cases enabled by governmental policies, impacting health status. Some are obvious such as choosing to smoke or deciding not to exercise daily. Some are less so, such as the impact farm subsidy programs have on the production (and consumption) of grains. The various issues leading to the high costs of health care illuminate a complex and multidimensional problem that will respond to decisions made by individuals, policy makers and clinicians.

With that as a background, we suggest that the Task Force, and others studying Medicaid and the Health System in general, consider adopting the following principles:

  • Commit to a singular focus on greater educational achievement.
  • Provide a well thought-out, effective and flexible approach to improving health, wellness and prevention.  An example would be to monitoring a diabetic recipient’s compliance with routine health maintenance and perhaps provide assistance in scheduling meetings with dieticians.
  • Change the way providers are paid, rewarding better health status and reductions in the use of high cost services such as hospital emergency rooms rather than rewarding high utilization.
  • Utilize the Lock-In program for all Medicaid recipients, providing a mechanism for reducing emergency room usage. 
  • Kentucky’s Medicaid program is isolated from competition.  Kentucky should explore encouraging private plans and networks to compete for Medicaid recipients.  Private plans and networks will have to design plans that will attract recipients. 
  • Kentucky’s Medicaid program could offer choice to its recipients.  Kentucky could offer a variety of packages aimed at specific health care needs.  Recipients could then choose the plan which suites their individual needs.
  • One problem Kentucky Medicaid faces is lack of predictability in expenditures, paying for services after they are performed.  Consideration should be given to providing Medicaid recipients with a defined contribution plan or a fixed subsidy with which they could purchase care.

Kentucky Medicaid needs to experiment and be innovative to foster much needed change.  The status quo in Kentucky’s Medicaid program is no longer acceptable.  The current status of the Medicaid program is unsustainable and will only get worse if nothing is done.  Experimentation and innovation must begin now in order to address a crisis once Health Care Reform changes are initiated during 2014.

In summary, we believe the following should be considered in reforming Kentucky’s Medicaid plan:

  • There is a correlation to ones education and health and wellness
  • Case Management plays a very important role in wellness and prevention
  • Without competition, Medicaid costs will continue to climb
  • Payment reform should be geared toward patient outcomes rather than fee for service which increases utilization

 For more information please contact Jeff Presser at jpresser@ddfky.com or Mark Carter at mcarter@ddfky.com

August 5, 2010

Are you a “Meaningful User”?

Do you currently use an electronic health record (EHR) or are you in the process of implementing a new EHR?  If the answer is yes, are you expecting your government incentive payment?  If the answer is yes, you need to first stop and evaluate if you are a “Meaningful User”.  It is not as simple as install the EHR and the incentive payments will come.  In order to be eligible for the Medicare or Medicaid incentive payments that were designated by the American Recovery and Reinvestment Act of 2009 (ARRA), you must first prove that you are using the EHR in a meaningful way.

In December of 2009, The Center for Medicare and Medicaid Services (CMS) released the Interim Final Rule on Meaningful Use.  During the time between December 2009 and July 2010, CMS accepted public comment and feedback on the proposed rule.  On July 13, 2010 the Final Rule was released with some significant changes.  The committees took the comments seriously and adjusted many of the requirements to allow for easier early adoption.  However, there still exists some significant effort to be sure you will be considered a meaningful user.

  healthcare graphic

The first step in this process remains unchanged:  to have a “Certified EHR” in place.  Not any EHR, but a certified EHR.  This is very important for those who have had an EHR in place for the past few years.  Has your vendor achieved the certified status?  If so, have you upgraded to the version that is certified?  If your EHR vendor has not committed to get their solution certified by 2011, it may be time to consider a different solution. 

Once you have a certified EHR, you must tackle the hard part of this process.  As things stand, there are 25 criteria for Eligible Professionals (EP).  Originally, all 25 criteria were to be met in full.  However, the Final Rule relaxed that requirement and broke the 25 into two separate groups, Core Criteria Set and Menu Criteria Set.  Currently, there are 15 Core criteria which must be met.  In addition, there are 10 Menu criteria and the EP must choose 5 of the 10 to meet.  That makes a total of 20 criteria that providers need to meet in order to be considered a Meaningful User.

Meaningful Use will be rolled out in three separate stages.  Stages 2 and 3 are expected to get stricter.  The proposed Stage 2 criteria is expected to be released in late 2011 and will not go into effect until 2013.  The timeline for Stage 3 is not yet determined.  The proposed rule had a timeline for Stage 3 but the final rule repealed any timing definition.     

What else changed between the proposed rule and final rule?  Most of the criteria measures were relaxed in the final rule.  In addition, two criteria were removed and two new criteria were added.

One important fact is the incentives and compliance with Meaningful Use is provider specific.  A multiple provider practice can have providers who are not Meaningful Users or who choose not to be Meaningful Users.  It is very important for each provider to understand the criteria and to do a self assessment.

Until recently, there was a great deal of hesitation to engage in any serious thought about Meaningful Use because it was not final and there were so many potential changes.  Now that the rules on Meaningful Use and the ruling on EHR certification criteria are final, it is time to start taking a serious look at your current EHR situation and how you use it.  It is likely that your practice will require some significant process changes to accommodate the new criteria defined in Meaningful Use.

If you would like more information on the Meaningful Use criteria or to get a copy of the Dean Dorton Ford Stage 1 – Meaningful Use Assessment for Eligible Professionals, please contact Jason Miller at jmiller@ddftech.com or (859) 425-7626

 

Jason D. Miller
Director, Technology Consulting

 Miller Jason

July 30, 2010

Disbursement Risk in the 21st Century

Over the past ten years we have seen significant changes in the way we pay our bills.  Not too long ago, no one would have ever dreamed that we could pay all of our bills without using a mail box or those old fashioned stamps.  I now find it a pain when someone gives me a check and I have to go to a bank to put it in to my account.  These changing times have also provided all of us with a little extra time in our day because it is easier and faster to pay our bills and review our accounts.  However, all of these efficiencies that we have gained have brought significant risks with it.  These risks have resulted in significant losses for some companies.  I hope to give you some insight in to some of the risks that come along with all of the efficiencies we now take for granted.

The main risk that occurs when employees have access to spend money electronically is obviously theft.  Theft of money electronically is much harder to detect than when someone steals cash.  We have had significant controls over cash for a long time.  We have authorized signers on our checks and some companies even require dual signatures.  We have all of these controls over checks and cash but what controls do we have over someone transferring money to their own account.  Most executives would say that it would be detected during the reconciliation procedures every month.  What if the person stealing the money electronically is also the person in charge of reconciling that account?  What if this person transferred small amounts each week or month over several years?  It could add up to a significant sum.

Companies need to have more controls/checks and balances over electronic wire transfers and automated clearing house (ACH) payments.  The best control I have seen is where an account is set up to only allow electronic transfers to certain payees.  There is a specific process with multiple signatures required in order to get a vendor added to this list.  If this same company wants to make a single electronic payment to a vendor, then it would require multiple authorizations.  Another way to control electronic payments is to employ proper segregation of duties.  Even the smallest of companies can segregate duties.  Let’s take an example of the company that only has one person in accounting and that person reconciles all accounts and performs all accounting functions.  In this case, I would recommend that the president/executive director or maybe the treasurer for the board or even someone from another department should be set up to perform electronic disbursements.  Under no circumstances should that accountant be the person in charge of wire transfers.

Another area of concern for electronic payments would be credit cards.  Having too many credit cards or a lack of control over credit cards can lead to theft.  Credit cards are an easy way to make purchases (business or personal).  There are various ways to use a company credit card to personal gain.  The easiest is to go to an office store to purchase supplies and then pick up a few personal items.  This can be almost impossible to detect.  Another way is to buy things online from companies that seem to have a business purpose but are actually for them personally.  Another horror story we have all heard about is using a company credit card while on a business trip for excessive expenses (i.e. expensive wine, Broadway shows, etc…). 

The key to safeguarding against theft of cash via the use of credit cards is to first limit the number of credit cards your organization has open.  The more credit cards that have monthly statements coming in increases the susceptibility for something to slip through the cracks.  The next key is to actually review the credit card statements every month.  Review each and every transaction and determine their specific business purpose.  Transactions should be questioned and receipts should be reviewed.  Even if the expense was charged by the chairman of the board – it should be questioned if the business purpose is not evident.  I have a client where the treasurer for the board gets a copy of all credit card statements each month and reviews the transactions for reasonableness.  This may not be feasible for some companies but is something to be considered.  I normally recommend that companies start by limiting the number of credit cards to one or two mainly to be used for office purchases.  I recommend that all travel and entertainment expenses go through an expense report process and have all receipts provided with that expense report.  Then all you have to do is review these few credit card statements every month.

I hope the information above has provided you with some insight into some of the risks related to electronic payments and ways to mitigate those risks.  If you have any questions or would like additional information, please feel free to contact me at lmann@ddfky.com.

Lance R Mann
Manager of Assurance Services

 Mann Lance

July 22, 2010

Scheduled Breaks and Their Effect in the Calculation of the Return of Title IV Funds

In our experience with College and University A-133 audits of Student Financial Aid, the second step in the Return of Title IV calculation could lead to many compliance issues for schools.  The calculation is very important because it determines how much money must be returned to the government; as well as who must return the funds. If calculated incorrectly, the school can return too much or not enough federal dollars. If too little is returned, then the school runs the risk of missing the 45 day deadline to return the funds.  The calculation of completed calendar days as a percentage of total calendar days in a term is seemingly simple; however, scheduled breaks and their exclusion from the calculation and/or the use of the mid-point cause some confusion.  Below is a refresher on how to handle scheduled breaks and the use of mid-point:

A scheduled break is a break of five or more consecutive calendar days that are excluded from the Return calculation.  For example, a school has an official break on the calendar that is Monday the 10th – Friday 15th and does not hold weekend classes. The break starts the first day after the last class is held (prior to the break) or in our example Saturday the 8th.  The last day of the break would be the Sunday before classes resume or in our example Sunday the 17th.  This causes for nine days to be excluded from the calculation (Saturday 8th to Sunday 17th).    Scheduled breaks for five or more days are excluded from both the earned days and days in the term.

If a school cannot determine a student’s official date of withdrawal, then they can utilize the mid-point method of returning funds.  The mid-point should not be confused with mid-term.  For mid-point, you calculate the total number of calendar days in the semester and find the mid-point or the number of days earned to make the calculation equal 50%.  For example, a school has 108 days in the term excluding scheduled breaks, when mid-point is used the numerator (number of days earned) would be 54 days or 50%. 

For more information, visit http://ifap.ed.gov or contact Megan Herde, MHerde@ddfky.com

Herde Megan

July 20, 2010

Surviving Today while Planning for Tomorrow

Most contractors that I work with have already cut costs to get through the past couple of years, but many are struggling with what to do to get through the next couple of years.  We continue to hear from national economic experts that the recession is over and the economy has begun to grow.  However, those same experts also warn us that the recovery will be slow.  Contractors are expected to continue to feel the impact of reduced work through 2012.  The 2009 CFMA Construction Industry Annual Financial Survey reported that 92% of the respondents to the survey identified “Sources of Future Work” as their top challenge in the next five years.  Leaders of successful construction companies realize that they must identify and exploit new opportunities to be successful in the future.   Some of the more common strategies that I see:

  • Joint ventures – working with another company can yield significant benefits for all involved.
  • Expand geographic regions – analyze new geographic regions that could provide opportunities for new work.
  • New market niches ­- investigate new and emerging markets for opportunities to diversify.
  • Merge with or acquire another contractor.

 

Each of these strategies provides both opportunity and risk.  Contractors must first identify the strengths of their own company/workforce and match that with the changing needs of the marketplace.  This type of strategic planning will allow companies to adjust to be successful not only today, but also in the future.  Questions you should be asking:  Do we need to hire/create expertise in emerging industries, such as green building?  Do we have the industry expertise but need to market to a broader geographic region with more opportunities?  By partnering with another company will we have the financial strength and experience to perform on a project that we could not do alone?

Continuing to do what you have always done and waiting for the market to come back is not an option in today’s economic environment.  Engaging your leadership in the very important work of planning for today, as well as tomorrow will position your company to thrive in the future. 

For more information please contact:

Crissy Fiscus, cfiscus@ddfky.com

Fiscus Crissy professional

July 6, 2010

Form 990 – Schedule H

During the re-design process of the new Form 990, the IRS placed more emphasis on tax exempt hospitals’ reporting requirements through Schedule H of the new form.  For 2008, Schedule H was optional except for information in Part V regarding the hospital’s facility information.  However, for 2009, the form is required to be completed in its entirety for all applicable activities pertaining to each hospital.  Substantially more documentation will be required by the filing organization.

Part I of the new schedule is designed to provide information regarding charity care and community benefit activities. Information is requested on whether the hospital has a charity care policy and the criteria surrounding the policy.  Hospitals are required to show a detailed analysis of their charity care and community benefit amounts at cost.

Part II is designed to detail any community building activities that the hospital completed during the year that helped to protect or improve the community’s health or safety.  Examples of community health and safety activities could be improvements to housing buildings for vulnerable populations, creating new employment opportunities for community residents, mentoring programs, support groups and disaster readiness programs.

Part III is designed to report the hospital’s bad debt, medicare and collection practices.  The hospital will be asked to report on costing methodologies and rationale for bad debt and medicare policies.  The hospital will also have to describe the collection policies utilized for patients who qualify for charity care and financial assistance.

Part IV is designed to describe activities associated with management companies and joint ventures in which the hospital is a partner or shareholder.

Part V was the only section that was required to be completed with the 2008 return. Within this section, the hospital describes the types of services the hospital provides, such as whether it is a licensed hospital, a critical access facility, a research facility, etc.

Part VI of the schedule, Supplemental Information, allows the hospital more room to describe information listed in other parts of the schedule.  The hospital will also be asked to provide information on how the hospital assesses the health care needs of the community, how the hospital educates and informs patients and persons about their eligibility for financial assistance, information about the community it serves, and how the hospital furthers its exempt purpose.

While the new Schedule H appears cumbersome, it allows the hospital an opportunity to describe the good things it is doing for the community it serves. 

With state governments considering whether to implement minimum amounts of charity care and the federal government considering whether hospitals should lose their tax exempt status, it is becoming increasingly important for tax-exempt hospitals to place a greater emphasis on their community benefit activities.

Please see the following link for Schedule H:   http://www.irs.gov/pub/irs-pdf/f990sh.pdf

Allison Carter
alcarter@ddfky.com

Carter Allison

June 9, 2010

IRS is Seeking Input from Exempt Hospitals on New Requirements

IRS has issued Notice 2010-39 in which it seeks comments from the exempt hospital community on the requirements of new section 501(r), enacted as part of this year’s healthcare legislation.  The new statute specifically requires exempt hospital organizations to:

  • conduct community health needs assessment every 3 years,
  • establish financial assistance policy,
  • limit amounts charged for emergency or other medically necessary care, and
  • agree to forego extraordinary collection actions before determining whether individual is eligible for assistance under organization’s financial assistance policy.

IRS is specifically requesting comments regarding the need, if any, for guidance relating to the new requirements, what constitutes “reasonable efforts” to determine eligibility for assistance under a financial assistance policy for purposes of the billing and collection requirements, and the provisions of section 501(r)(2)(B)(ii), which provides that an organization that operates more than one hospital facility “shall not be treated as described in [section 501(c)(3)] with respect to any such facility for which such requirements are not separately met,” including the tax consequences of a failure with respect to some, but not all, facilities and the proper tax treatment in future periods in such a case.

Click here to see  notice for additional information and let us know if there’s anything you want to discuss.  Comments must be submitted by 7/22/2010.

For more information please contact Leigh McKee at lmckee@ddfky.com

McKee Leigh

May 24, 2010

Subcontract Clauses

Contractors have been using many different ways to shift risk in contracts with owners for as long as the industry has existed.  Contractors have also shifted risk when it comes to subcontractors.  One of the ways to shift risk is the use of “paid-when-paid” and “paid-if-paid” clauses in contracts.  Often these terms are used interchangeably, but in actuality, the two terms are slightly different.  Pay-if-paid clauses state that the party responsible for making the payment will not make the payment unless and until they are paid for the work.  Pay-when-paid clauses usually state that the party responsible for making the payment must pay within a set amount of days from which they receive their payment for the work.  Pay-when-paid usually does not excuse responsibility of the payment, but establishes a reasonable time to make payment.

Courts have been looking at pay-if-paid clauses for some time now to analyze their values, legality, and fairness.  The issue is whether it is fair to shift the risk of nonpayment to the subcontractor that does not have control over the insolvency of the owner.  The issue is being addressed at the state level in three different ways.  The first approach simply states that the clause is illegal and therefore unenforceable.  In this case the courts interpret the payment obligation to mean payment is required within a reasonable time from the completion of the work invoiced.  The second approach states that the provision violates public policy.  The reasoning of the clause violating public policy is that it eliminates the subcontractor’s lien right.  A mechanics’ lien is a statutory right to preserve the contractor’s security for payment of sums due.  This approach is then interpreted the same as the first in that the payment obligation is required to be made within a reasonable time rather than a condition to be paid.  The third approach is that some states will enforce the clause as it is written.  This approach usually requires precise language that clearly indicates the parties intend for the subcontractor to assume the risk.  If the court decides the language states a pay-when-paid rather than pay-if-paid, the clause is deemed to establish a reasonable time for payment.

State courts are also taking positions on the responsibility of the surety.  Some states are of the position that is the pay-if-paid clause is enforceable as to the claim of the subcontractor against the general contractor, then the surety is not responsible to pay the subcontractor.  Other states view the payment bond as the insurance for when the owner or general contractor does not make payment and allows the subcontractor to make claims against the surety.

It is important to remember when preparing subcontractor agreements to use language that clearly states that the risk of insolvency of the owner passes to the subcontractor.  Also, it is important to know which state will have jurisdiction over the contract and consult your attorney as to that state’s position on enforcing pay-if paid clauses.

If you would like more information please contact Hunter Stout at hstout@ddfky.com

Stout Hunter

Older Posts »