Real Estate Lawyer on The Austin Real Estate Voice

On Sunday Austin Real Estate Lawyer and Realtor Sara Foskitt appeared as a guest on The Austin Real Estate Voice.  Sara answered questions about real estate transactions, contractual issues, and Texas real estate law in general.  In case you missed the broadcast, there is a podcast of the full length show available and segmented podcasts are on the way.



The Austin Real Estate Voice is broadcast every Sunday from 5-6p on Austin's 1370am.

Twitter, the IPO and the JOBS Act

Andrea Sloan's Story - Compassionate Use Denied by BioMarin Pharmaceutical

As Austin's Lakes Dwindle, Gulf Coast May Also Suffer

• by Neena Satija, The Texas Tribune
• September 18, 2013

As the Highland Lakes that supply Austin's water continue to dwindle, the Lower Colorado River Authority may take the unprecedented step of cutting off freshwater flows it normally releases from the lakes into Matagorda Bay.

Facing an increasingly desperate need for water to supply cities like Austin, the LCRA is considering whether to ask permission from the Texas Commission on Environmental Quality to cut off the freshwater flows, sometimes known as "environmental flows," that are usually required by the state to maintain the ecological health of water bodies farther downstream that the Colorado River empties into, namely Matagorda Bay. Board members will decide whether to ask permission for the cutoff in a meeting Wednesday morning.

The fact that the authority is considering such a move has prompted criticism from environmental advocates and some state and local officials. They worry that stopping the environmental flows could cripple wildlife and the fishing industry in Matagorda Bay — long considered a jewel of the Texas Gulf Coast — while Austinites are allowed to water their lawns without any new restrictions.

“All counties up and down the whole Colorado basin, we’re all in this drought together,” said Kent Pollard, a Matagorda County commissioner. “It certainly seems very unfair in my viewpoint for us, in this one area, to suffer any more economically than any of the other locations.”

Matagorda Bay is one of Texas' largest estuaries, transitional water bodies between the river and open sea. (The Colorado River feeds into the bay, which is connected to the Gulf of Mexico and ultimately the Carribean Sea.) Pollard said it is home to the largest shrimping fleet on the state’s Gulf Coast. Fish in the bay need freshwater to survive. Salt levels in the water have grown as a result of cuts the LCRA has already made to freshwater releases from the Highland Lakes, and area officials say oystering and shrimping have suffered.

If inflows to the bay are cut entirely for the rest of the year, as LCRA is considering, the water's salinity would rise higher, and the results could be dire, said Jennifer Walker, water resources coordinator for the Sierra Club’s Lone Star chapter.

“The bay has been on critical life support for a long time, and it’s about to be taken off,” she said.

Meanwhile, Walker and Matagorda-area officials say, there have been no new efforts to encourage conservation among Highland Lakes users, such as the city of Austin. 

“You’ve got Austinites continuing to fill up their pools, continuing to water their lawns, continuing to do pretty much everything they want to with the water supply,” said Mitch Thames, president of the Bay City Chamber of Commerce and Agriculture. 

Austin has been under Stage 2 watering restrictions since September 2012, meaning that businesses and residents can water their lawns once a week in the early morning or nighttime hours. 

Still, Lakes Travis and Buchanan are reaching near-historic lows. As of Tuesday morning, the two reservoirs combined were only 32 percent full. The lakes continue to lose about 2,000 to 3,000 acre-feet of water per day, about 0.5 percent of their current combined level of 643,000 acre-feet. If they fall to 600,000 acre-feet, which the LCRA expects will happen in October, more cutbacks will be necessary from its users.

Austin pays a premium for its guaranteed right to water from the Highland Lakes and has reduced its water demand despite major population growth. Some, including state Sen. Troy Fraser, R-Horseshoe Bay, say Austinites should not be asked to conserve more. Fraser said he hopes the LCRA will ask TCEQ for permission to end environmental flows to Matagorda Bay for the remainder of 2013. 

“Is the water to the critters more important than health and public safety?” Fraser asked. 

But even if the LCRA gets permission to end flows to Matagorda Bay for the rest of 2013, the water problems would remain. Cutting the flow would only save about 6,000 acre-feet — less than 5 percent of the amount of water Austin would use in one year. The authority already cut off water from the Highland Lakes to rice farmers for the second year in a row, and few other water-saving options remain. In desperation, the LCRA has floated such controversial proposals as lowering Lake Austin, which is usually kept at a constant level, to use it as a catch basin for rainwater. The idea was quickly tabled after public outcry.

Pollard, the Matagorda County commissioner, has his own proposal.

"It may be a time when they just say, ‘Hey, sorry, you can’t water your lawn,’ and actually completely cut it off,” he said. “I can guarantee you that [Austinites] use way more water in their lawn than what is being sent down to us.”

Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.

This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/09/18/austins-lakes-dwindle-gulf-coast-may-also-suffer/.

It’s All or Nothing With I-9s and Nothing Proves Costly

Watson Responds to Perry's Move to Regulate Texas Insurance Navigators

• by Becca Aaronson, The Texas Tribune
• September 19, 2013

Updated, Sept. 19, 12 p.m.: 
By directing the Texas Department of Insurance to enact strict regulations, Gov. Rick Perry has misappropriated the intent of the law that state legislators approved to regulate so-called navigators trained to help Texans purchase health care coverage under Obamacare, state Sen. Kirk Watson, D-Austin, said Thursday in a press statement.

In a letter to Insurance Commissioner Julia Rathgeber, Watson, the author of Senate Bill 1795, said the measure's intent was to make it easier, not harder, for Texans to secure health coverage. The measure allows TDI to implement additional training requirements for navigators if the federal requirements seemed insufficient.

“SB 1795 does not authorize the agency to place onerous restrictions on navigators that will make it harder for them to do their important work,” wrote Watson. “I’m sorry to say that many of the provisions suggested by Governor Perry seem to have this intended effect.”

Watson said his legislation does not authorize the department to do a number of tasks that Perry requested. For example, it does not impose age restrictions on navigators, does not require arbitrary amounts of additional training or exams, and does not compel navigators to undergo background checks or to submit fingerprints to TDI. It also does not create a database of people assisted by the navigators, or set restrictions on the time, place and manner in which navigators may assist people.

Original Story, Sept. 17:

Gov. Rick Perry has directed the Texas Department of Insurance to establish strict rules to regulate so-called navigators trained to help Texans purchase health coverage under "Obamacare."

While the governor says the extra regulations will ensure that people handling Texans’ private financial and health information are properly trained and qualified, the rules could present a significant roadblock to organizations helping to implement the federal Affordable Care Act.

"This is blatant attempt to add cumbersome requirements to the navigator program and deter groups from working to inform Americans about their new health insurance options and help them enroll in coverage,” Fabien Levy, a spokesman for the U.S. Department of Health and Human Services, said in an email. 

Along with many other provisions in President Obama’s signature health reform law, the individual mandate to purchase health insurance is set to take effect on Jan. 1. Texas' Republican majority, which vehemently opposes the federal health law, declined to establish a state-based insurance marketplace. The federal government is doing it instead, launching an Orbitz-like online insurance exchange starting Oct. 1. That exchange will require individuals to input sensitive tax information, including their Social Security numbers and estimated annual income, to determine whether they qualify for tax credits to purchase coverage.

To help uninsured Texans use the complicated new system, the federal government awarded nearly $11 million in August to local organizations charged with hiring and training navigators, who will help consumers input their financial information and pick a health plan through in the exchange, must undergo 20 to 30 hours of training, pass a certification test and renew their certification annually, according to the U.S. Department of Health and Human Services.

For Perry, those ground rules are not enough.
“The U.S. Department of Health and Human Services has repeatedly delayed explaining how its navigators were going to be created, how they were going to operate and how they were going to be regulated,” Perry wrote in a letter to Insurance Commissioner Julia Rathgeber. “Because of the nature of navigators' work and because they will be collecting confidential information, including birth dates, social security numbers and financial information, it is imperative that Texas train navigators on the collection and security of such data.”

In the letter, Perry specifically directed TDI to establish rules that require navigators to complete at minimum of 40 hours of state training in addition to the federal training requirements. He also demanded that navigators pass a rigorous exam based on that training, refrain from influencing a consumer's insurance choice by recommending a specific plan or comparing benefits offered by different plans, and submit to periodic background and regulatory checks and show state identification while on the job.

He also directed TDI to maintain a database of registered navigators, including background checks and fingerprints; set limits on when and where navigators can enroll people in the exchange; charge fees to provide navigator training and registration; and establish the department’s authority to suspend or revoke navigators’ registration for failing to comply with state requirements. 

“TDI agrees that the navigators in Texas have to be well trained and competent in what they’re doing,” said Ben Gonzalez, an agency spokesman. “Our goal is for them to be accountable and be conscientious about the confidential information that they’re going to be collecting.”

Federal officials said some of the rules Perry ordered the state insurance department to implement are forbidden under U.S. law. For example, navigators are not allowed to retain or report information on consumers who sign up for coverage through the exchange; therefore, they could not submit that information to TDI, as Perry has requested. The federal agency also emphasized that navigators are not allowed to access consumers’ information after it has been submitted to the exchange.

Levy said the U.S. government has similar programs already set up to help counsel people applying for Medicare, and that those have “never faced this kind of bullying from Texas.”

“This is clearly an ideologically-driven attempt to prevent the uninsured from gaining health coverage,” Levy said. “But despite the state’s attempts, we are confident that navigators will still be able to help Texans enroll in quality, affordable health coverage when open enrollment begins on Oct. 1.”

Given the governor’s directive, the department will begin putting together the rules with some urgency, Gonzalez added. The rule-making process can take several weeks, as the state is required to hold public meetings and solicit stakeholder input before the rules are drafted. After a draft is approved, the rules must be posted on the Texas Register to receive official comment before they can be codified. 

“It's our expectation the rules and training be in place by Jan. 1, when insurance can be purchased through the exchange,” Rich Parsons, a spokesman for the governor’s office, said via email.

The federal health exchange has a six-month open enrollment period — from Oct. 1 to March 31 — in which navigators can help the uninsured find health coverage to comply with the insurance mandate. Individuals who do not purchase insurance during the open enrollment period could be subject to federal tax penalties. If the state's regulations take effect on Jan. 1, the navigators will be required to undergo additional training during the open enrollment period, which could present significant challenges.

To address the privacy concerns raised about the navigator program, some grant recipients are already requiring navigators to undergo additional training on privacy protection. United Way of Tarrant County, in collaboration with 17 other organizations, received $5.8 million, the largest federal navigator grant in Texas. Tim McKinney, the organization’s chief executive officer, said the organization is requiring navigators to undergo an additional hour-and-a-half of training on how to comply with the federal privacy law HIPAA.

Lawmakers signed off on Perry's call for greater regulation of the navigator program in the last legislative session when they passed Senate Bill 1795, which authorizes TDI “to regulate navigators if it determined that federal standards did not ensure they were qualified to perform their duties or avoid conflicts of interest,” according to a legislative report. The new state law allows the department to enact rules that protect patient privacy and prohibit navigators from accepting payments from health insurance companies or posing as an insurance agent. At least 16 other states have also enacted or are considering laws to regulate navigators, according to a USA Today report.

Texas Attorney General Greg Abbott and 12 other state attorneys general have also raised concerns that the federal navigator program could pose risks to patients’ privacy. In a letter sent to U.S. Health and Human Services Secretary Kathleen Sebelius in August, the attorneys general asserted that the federal government’s screening process does not require uniform background or fingerprint checks, meaning convicted criminals or identity thieves could become navigators. They also expressed concerns that navigators would not undergo sufficient training.

Some medical professionals and advocates have objected to the privacy concerns raised by conservatives, suggesting they are politically motivated. For example, navigators must already comply with state and federal laws governing the privacy of sensitive medical information. If they do not adhere to strict security and privacy standards, including how to handle and safeguard consumers’ Social Security numbers and identifiable information, they are subject to criminal and civil penalties at both the federal and state level. The federal government imposes up to a $25,000 civil penalty for violating its privacy and security standards.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.

This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/09/19/perry-directs-tdi-regulate-federal-navigator-progr/.

Private Health Exchanges: Preparing for the Affordable Care Act

On the Horizon: FCC’s New Telemarketing Rules

Insurer Found Liable for Policy Holder Voluntary Payments

Norton Rose Fulbright blog post about Lennar Corp. v. Markel American Insurance Co. 56 Tex. Supt. Ct. J. __ (Aug. 23, 2013), rev'g 342 S.W.3d 704 (Tex. App.—Houston [14th Dist.] 2011) which held that a Texas insured could recoup some $6 million in voluntary payments:


20130828 - Legal update - Insurer liable for policy holder voluntary payments

De Leon & Washburn is Pleased to Announce Thomas P. “Pat” Washburn’s Thirtieth Anniversary with the Firm

Read about Pat Washburn on the De Leon & Washburn blog:

De Leon & Washburn is Pleased to Announce Thomas P. “Pat” Washburn’s Thirtieth Anniversary with the Firm

Federal Circuit Finds Online Purchasing System Patent is Invalid for Obviousness

Leadership Austin Blog: Announcing the ESSENTIAL Class of 2014!

Congratulations to the Essential Class of 2014!  I had a great experience as part of the Essential Class of 2010.

Leadership Austin Blog: Announcing the ESSENTIAL Class of 2014!: We are very pleased to announce the participants of the Leadership Austin ESSENTIAL Class of 2014! This year marks the 35th anniversary of L...

Go to the Leadership Austin site to learn more about the Essential program.

Basic Copyright Law Concepts

I found this video on JDSupra.com.  It's title is What Damages Can I Recover If My Copyright Is Infringed Upon: