Columns

Now, I have written about some very controversial issues, i.e. Trump, Ukraine, Israel-Hamas, the environment and many other topics.
Today, I am taking on an issue I was warned not to tackle. My family and friends repeatedly advised me to leave it alone.  But being a masochist, I can no longer resist; it has bothered me for years.
So here goes: Why do spectators at golf and tennis matches have to be silent?  (There, I did it and I think I hear the outcry already). Let’s begin by applying the “quiet” rule to some other sports.

Now, I have written about some very controversial issues, i.e. Trump, Ukraine, Israel-Hamas, the environment and many other topics.

Today, I am taking on an issue I was warned not to tackle. My family and friends repeatedly advised me to leave it alone.  But being a masochist, I can no longer resist; it has bothered me for years.

So here goes: Why do spectators at golf and tennis matches have to be silent?  (There, I did it and I think I hear the outcry already). Let’s begin by applying the “quiet” rule to some other sports.

Scene 1: A Detroit Tiger batter has finished scratching and adjusting his gloves/helmet when an announcement on the public address system commands fans to “be quiet please.” Some 45,000 fans comply.

Scene 2: A Detroit Piston is at the free throw line. A similar announcement orders fans to take their seats, not move a muscle, while the basketball player shoots.  

Scene 3: The Detroit Lions quarterback, ready to take the hike, is bothered by a fan slurping a beer in the upper deck. He stops, points to the stands and the announcer, whose voice reflects annoyance, chastises the offending fan to drink quietly.

None of the above is possible, you say?  Yup, you’re right; very true. So ...

Why is golf and tennis different?  What is it about these games that require fans to not only hold their breath, but also are ousted from stadiums and golf courses if they can’t control the sniffles?

The golfing great Tiger Woods became angry when he heard camera shutters click, and at a Wimbledon classic, one player complained that she was bothered by “groans” after she missed a shot. She said a sports psychotherapist was treating her for this mental/psychological dilemma. (I did not make that up; I could never have thought of that.)

In the in-depth interviews I conducted, I was told, “You just don’t understand.” Which, of course, is true. They explained:  it’s a matter of concentration.

Apparently, it takes more concentration to hit a golf ball sitting motionless on a tee, waiting to be whacked than hit a curving, twisting 95-mile an hour pitch from just 60.5 feet away.

A basketball player doesn’t need to concentrate shooting a free throw while fans engage in hilarious antics to force him to miss. Some of the signs and photos can’t be reported in a family newspaper. When the player does miss, given the raciness of the photos, a coach ought to be a little forgiving.

Question: Who needs more time to think: A golfer contemplating a 12-inch putt or a quarterback looking at six hulking, 300-pound salivating linemen who are planning to claw their way through the defensive line to crush every bone in his body.  

The internet provides many reasons (all are really about concentration), one arguing that a tennis player needs to hear the ball hit the opponent’s racket. Apparently, that sound provides vital info for the return.

If sound -- any sound -- is so disruptive, then the first people who should be ushered out are players who grunt, among them the great Serena Williams. Those grunts are annoying, I confess, to me watching on TV. Maybe that’s her secret to winning.

We might also observe golfers don’t grunt even when they hit a drive for some 300 yards. But they do stand like statues on the green when opponents putt. Professional courtesy.

Concentration?  What about doing backward somersaults on a beam just four inches wide and 4.1 feet off the ground? You think that might need a little concentration?

No, dear tennis players and golfers, concentration doesn’t do it. Citing that as the reason is nothing but sports elitism.  

Then, what is the reason? Answer: Tradition. These were rich people’s sports played at country clubs that required respectable behavior and appropriate manners. People at these clubs didn’t shout, let alone cuss, but behaved “properly.” One professional tennis player, discussing this issue on the web, called his colleagues “dilettantes.”

Moreover, tennis was played before royalty and that required acceptable protocol. It still is at Wimbledon where members of the royalty frequently attend matches. No one ever witnessed a king, queen, prince or princess, chugging a beer, and shouting, “Helluva shot, old chum.”

Admittedly, I never met the late Queen Elizabeth but from what I have read about her, I think she would have enjoyed a more raucous scene. I know Prince Harry would.

(If it’s not too much to take on at the same time, we might also change the scoring system in tennis.  What the hell is the point of 15, 30, 40 love? The numbers don’t make sense and what is meant by “love?” Yes, I read all the reasons for the scoring, but for the “love” of me, none makes any sense.  How about 1, 2, 3 and when the player reaches 4, he/she wins the game.)

We have witnessed several revolutions in the last half-century. We have made progress in civil rights, women’s rights, LGBTQ+ rights, and in other sectors of society.

It’s time to fight for “fan rights” at tennis matches and on golf courses.

With spring upon us, let’s make 2024 the year we begin to cheer and boo at these sporting events. I will start it if you promise to post bail.

We might just discover it doesn’t make a damn bit of difference -- and that it is a lot more fun.  

And the player who is upset by groans will save a lot of money on therapy.
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Berl Falbaum is a long-time journalist and author of several books.

Lawmakers in Michigan are considering bills that would impose rent control on mobile home operators. Five bills before the Senate create many new regulations, including restrictions on owners of manufactured housing communities. Instead of determining their rental rates independently, they would have to submit any rent increases above the inflation rate to a state board for approval.
Controlling prices is the wrong way to get affordable housing. Supporters of rent control want to make it easier for low-income families to afford rent. The best way to achieve that goal is through competitive markets. Markets, not state rules, are what allow people get better products at lower prices.

By James M. Homan
Mackinac Center for Public Policy

Lawmakers in Michigan are considering bills that would impose rent control on mobile home operators. Five bills before the Senate create many new regulations, including restrictions on owners of manufactured housing communities. Instead of determining their rental rates independently, they would have to submit any rent increases above the inflation rate to a state board for approval.

Controlling prices is the wrong way to get affordable housing. Supporters of rent control want to make it easier for low-income families to afford rent. The best way to achieve that goal is through competitive markets. Markets, not state rules, are what allow people get better products at lower prices.

There is already a lot of market intervention that substitutes political priorities for the priorities of customers.

Manufactured housing parks already have to receive a license from the state and are subject to state regulation. All housing is subject to state rules about safe construction, inspections and practices like the requirement to have a surety bond.

The legislation would add another layer on top of existing regulation. Senate bills 486 through 490 give a state board power to control every aspect of a manufactured housing community, including its construction, layout and business practices. It also prohibits construction workers from building or repairing mobile home parks without first meeting state qualifications and training. This would be regardless of whether they are already are licensed to perform this work.

All of these requirements are in addition to the requirement that rent increases above inflation be pre-approved. There are also bills in the House that would create other and different regulations of manufactured housing communities.

It’s understandable that people want to make sure that trailer park owners treat their customers well. The better approach, however, is competition. When the customer is king, people profit by finding ways to give customers what they want better and cheaper. The prices of computer software, toys, clothing and cellphone services are all lower than they were in 2000 — not because of government price limits but through competition. Bad landlords create profit opportunities for better landlords.

Competition coordinates the resources of society to get people what they want efficiently and effectively. It is not from the benevolence of the butcher that we expect our dinner, as the old lesson from economics demonstrates. Nor is it from state regulation. Making it harder or less lucrative to compete with bad landlords makes it more difficult for people to get better options. It also limits the competitive pressure that can force bad landlords to be better to the people who rent from them.

This is seen in reviews of the economic effects of rent control policies like the one Michigan’s Senate is considering.

A 2024 review of the literature concluded, “Rent controls appear to be quite effective in terms of slowing the growth of rents paid for dwellings subject to control. However, this policy also leads to a wide range of adverse effects affecting the whole society.” These include decreased mobility, lower wages, and fewer options for the people looking for low-income housing.

Rent controls will hurt even the people who would pay lower rent. Owners are less likely to offer improvements to units and have more incentive to let them wear out.

The people renting in manufactured housing communities may not feel like kings. But there are people trying to make an honest buck by giving them good deals. The bills in the Michigan Senate would make it harder to build new market-rate housing for low- income families. That’s not what lawmakers ought to want to do.

It has been more than 30 years since the Michigan legislature imposed “caps” on medical malpractice cases. Since that time there have been only a few challenges to the law. In fact, the paucity of challenges is rather curious, especially given the rather flimsy constitutional grounds on which the law sits.
Putting aside the legal merit of limiting recovery on damages, from a public policy perspective, it just doesn’t make sense. In the late 1980s early 1990s, when states were adopting laws capping damages on mistakes made by doctors and hospitals, studies over the following decades suggested that the industry-proclaimed “health crisis” was not rooted in reality and was likely the product of fear mongering to lower insurance premiums for health care professionals and limit exposure to legitimate claims of injury and death related to sub-standard health care.

It has been more than 30 years since the Michigan legislature imposed “caps” on medical malpractice cases. Since that time there have been only a few challenges to the law. In fact, the paucity of challenges is rather curious, especially given the rather flimsy constitutional grounds on which the law sits.

Putting aside the legal merit of limiting recovery on damages, from a public policy perspective, it just doesn’t make sense. In the late 1980s early 1990s, when states were adopting laws capping damages on mistakes made by doctors and hospitals, studies over the following decades suggested that the industry-proclaimed “health crisis” was not rooted in reality and was likely the product of fear mongering to lower insurance premiums for health care professionals and limit exposure to legitimate claims of injury and death related to sub-standard health care.

For example, one study from the Center for Justice Democracy at New York Law School found “indisputable” evidence that “caps” on damages in medical malpractice cases (euphemistically referred to as “tort-reform”) produced more medical errors and higher health care costs.

Perhaps more importantly, the study determined that the adoption of damage caps did not increase the number of physicians, shattering the myth that doctors were unable to enter the practice of medicine due to the high cost of insurance and exposure to significant jury verdicts.

Still, notwithstanding data to the contrary regarding them, Michigan joined a number of other states in the passing of reform placing caps on damages.

Following the legislative enactment, medical malpractice cases began to percolate through the appellate system centered on the constitutionality of the new law. In Zdrojewski v Murphy, the first appellate panel to address the issue — in an unpublished opinion — the court embraced the propaganda of a “perceived crises in the health care system” and found the public policy for “reducing medical malpractice liability” (the purported impetus behind the law) was sufficient to pass constitutional muster.

While the special interest of protecting doctors and their insurance carriers from having to be held fully accountable for medical errors influenced one panel of judges, the Court of Appeals quickly reversed course. In Wiley v Henry Ford Cottage (a published opinion) the court was outwardly critical of its predecessor opinion and re-emphasized Michigan’s Constitutional guarantee to a trial by jury did not end at determining liability but extended to the determination of damages. The Wiley court aptly pointed out that the fatal flaw in the Zdrojewski opinion was that the existence of a medical malpractice claim is not a creature of the legislation, therefore not subject to legislative abolishment. In other words, “while the Legislature may take away what it has given, it may not take away what the Constitution has given.” The fundamental unfairness of the caps is simple: arbitrarily reducing the amount of damages awarded by a jury handicaps its ability to provide full justice.

Unfortunately, the Wiley decision did not stand. Under the steady hand of a Michigan Supreme Court regime criticized for wreaking havoc on the rights of personal injury victims, Justice Clifford Taylor penned an opinion that would lead to three decades of discounted justice. Interestingly, the case that cemented the constitutionality of medical malpractice caps did not involve medical malpractice! In Philips v Mirac, the issue before the Supreme Court was whether a statutory damage cap on lessors of automobiles, i.e., rental cars, for injury caused by the negligent operation of the vehicle) was constitutional. In Phillips, the Supreme Court demonstrated its keen ability to perform the legal gymnastics of a proper constitutional analysis while pivoting toward a retrofitted opinion that protected the economic interests of the insurance industry. In finding caps to be constitutional, the court provided statutory examples of limitations on recovery. Of course, none of the anecdotal illustrations involved pure common law causes of action independent of statutory origin. Conspicuously absent from Justice Taylor’s opinion in Phillips is any reference, analysis, dissection or even mention of the Wiley decision. Perhaps in her dissent, Justice Elizabeth Weaver said it best: “No industry should be allowed to shift its burden of responsibility and accountability to the shoulders of the severely injured merely because it claims to be in crisis.”

The time is now.

Caps on damages have the ulterior consequence of de-incentivizing doctors to behave carefully. Lowering the risk of malpractice lawsuits weakens the deterrent factor necessary to maintain responsible care, judgement and decision making of medical professionals.

A jury verdict is not an “award” or “compensation,” these are terms associated with things we achieve or earn. Rather, a verdict is a monetary measurement of human suffering. The idea that caps lower insurance premium costs, increases the number of health professionals and creates greater access to health care has been debunked.

The only true consequence of placing a cap on recovery for those who have had the unfortunate experience of unimaginable suffering due to mistakes made by doctors and hospitals is cheating victims of their right to fully recover what has been lost or destroyed.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.

In the 24 years that Professor Reuven Avi-Yonah has been teaching tax law, he has seen a substantial uptick in interest: When he first started, fewer than half the JD students took a tax law class, but now roughly two-thirds do.
“I think everybody should take at least one tax class, in part because it doesn’t just affect your professional life—taxes affect your personal life, too. It is helpful to know something about this stuff,” he said.

By Bob Needham
Michigan Law

In the 24 years that Professor Reuven Avi-Yonah has been teaching tax law, he has seen a substantial uptick in interest: When he first started, fewer than half the JD students took a tax law class, but now roughly two-thirds do.

“I think everybody should take at least one tax class, in part because it doesn’t just affect your professional life—taxes affect your personal life, too. It is helpful to know something about this stuff,” he said.

Avi-Yonah—the Irwin I. Cohn Professor of Law and director of the International Tax LLM Program—regularly shares his tax expertise outside the classroom as well. He has served as a consultant to the US Department of the Treasury and the Organisation for Economic Co-operation and Development (OECD), and in August 2023, he published his latest work, Research Handbook on Corporate Taxation (Edward Elgar Publishing). Most recently, he began writing a regular weekly column for Tax Notes, the leading journal in the field.

In his new role as a columnist, Avi-Yonah has found no shortage of issues to write about. He recently answered five questions about some of the more pressing issues in tax law:

1. Several of your columns for Tax Notes have concerned Moore v. United States, which is currently pending before the Supreme Court. How important is that case, and what is at stake?

This has been the biggest tax law news of the last year—and arguably of the last century. Since 1920, the US Supreme Court has never invalidated the tax statute on constitutional grounds. Yet suddenly last year there was this case that has been percolating in the courts for several years, about whether the government can impose an income tax without “realization”—the sale of an asset.

The trigger for this was legislation in the Senate, with support from the White House, that would tax billionaires on the unrealized increase in the value of their property. This doesn’t mean that everybody would have to pay tax on the increase in the value of their homes. It is really only for rich people, and it only applies to things that are publicly traded, like stock. This would be the best change to the tax code that we could make. It would get rid of a lot of the problems with the income tax, such as eliminating the need for a lower capital gains tax rate.

The argument against this is that it is unconstitutional because these increases are not income, and opponents rely on a 1920 case to make that argument. If the Supreme Court so holds, this would have immense implications. There are very large areas in the tax code that do not involve a sale or exchange of an asset and that nevertheless impose tax. The estimated potential hit to federal revenue is in the trillions of dollars.

Since the oral arguments in December, most people do not think that the Court will go that far. Some people think the Court didn’t realize all the potential collateral damage when they granted certiorari. The result of Moore is likely to be a very narrow ruling for the government.

2. One of your columns said that even if Moore doesn’t upend the tax code, other challenges will come along that will be more likely to do so. Why is that?

This is where it gets interesting. We uniquely tax American citizens even if they live permanently overseas. The only way to escape taxation is to go to the American consulate and sign forms that give up your citizenship. About 3,000 people do that every year, and this triggers an “exit tax” that acts as if they had sold all of their assets. Many people do this because they avoid both the income tax and the estate tax.

This is exactly the kind of tax that is ripe for a constitutional challenge because the tax is imposed directly on the individual affected. This might be the next challenge, due to the same interests that brought Moore. Like most of these cases, the Moore case is not about Mr. Moore—it is about a bunch of conservative think tanks, all of whom filed amicus briefs in favor of the taxpayer to get this case to the Supreme Court. That is how many Supreme Court cases happen these days.

3. In November, the IRS announced what it called “a sweeping effort to restore fairness to the US tax system.” Do you think such an effort is necessary, and will this current effort accomplish its goal?

It is definitely necessary. This is not about changing the law; this is about enforcing existing law, and there is a lot of evidence that existing tax law is not adequately enforced. This is called the tax gap, the gap between what is supposed to be paid and what is actually paid. The basic problem is that there are lots of kinds of income that are neither subject to withholding nor to “information reporting,” such as a form 1099 that goes to the IRS: small-business income, “gig” work income, foreign income.

They’ve already collected something like half a billion dollars in taxes from simply pursuing the lowest-hanging fruit—situations where the income was declared on the tax return but the tax was not paid. But that’s really a drop in the bucket. The estimate was that they might be able to collect something like $240 billion, and they haven’t really made much progress yet, although I hope that they will.

One area that has seen significant progress is the issue of hiding money overseas. A law passed in 2010 requires foreign banks to let the IRS know if US citizens or residents have accounts there or have investments through them. That has been quite effective. It is showing up in quite a few court cases now in which penalties are imposed. These cases show that the IRS is getting the requisite information. So I’m a little hopeful that at least in this area, things will get better.

4. In the US, we are in the middle of “tax season,” when we typically hear some people call for grand schemes to simplify the tax system. Are these reasonable ideas?

Yes, but I think a lot of progress has actually been made on simplifying the system. Most people file a form called the 1040EZ, which is very simple if all that you have is wage income and you take the standard deduction. Over 90 percent of taxpayers don’t itemize deductions anymore.

One interesting thing about this is that the IRS already has all the information they need: They have your income and they have the standard deduction, so they can actually calculate how much tax you owe and send you a refund. And there’s now a pilot where you can do a free filing of a tax return through an IRS website, which for most people is perfectly adequate.

There is a lot more that can be done, mostly for people who have more complicated tax situations—the top 10 percent, let’s say, of the taxpaying population. The suggestion has been made that there is no reason, really, to have a tax return industry. Of course, TurboTax, H&R Block, and so on have been lobbying very fiercely against that. The problem is there is almost no lobby for simplification. Tax lawyers make their living off the fact that the tax code is complicated. It’s really only tax professors who argue for simplification.

5. We’ve been focusing on the US system, but a lot of your work is on international taxation. What is the biggest issue in international taxation right now that people might not know about?

I have been advocating for years that the biggest issue in international taxation is to prevent what’s called zero taxation or double non-taxation. It is to prevent income that crosses borders from simply not being taxed by any country.

In the last decade, there has been an international tax revolution led primarily by the OECD, which set up a two-pillar mechanism for reforming international tax. One is aimed directly at preventing double non-taxation. The other one is about shifting some element of income of multinational corporations to the country where their products are sold. In October 2021, there was an agreement in principle on these pillars by more than 140 countries. I am very supportive of both of these efforts; they are reflected in my writing from as long as 30 years ago.

A 2023 report from investment firm Vanguard estimates that about a quarter of Americans age 60 and over could move to a cheaper housing market and use the equity in their homes to upsize their retirement savings — making retirement more secure and enjoyable.

By Kate Ashford
NerdWallet

A 2023 report from investment firm Vanguard estimates that about a quarter of Americans age 60 and over could move to a cheaper housing market and use the equity in their homes to upsize their retirement savings — making retirement more secure and enjoyable.

Those with home prices near the national median could have cleared about $99,000 in equity, on average, in 2019 (the year the data was gathered). Homeowners in top-priced markets could have cleared an impressive $346,000, on average.

“We’re at a peak of where housing prices have been, ever, in history,” says Matthew Gottshall, a certified financial planner in Westlake, Ohio. “It’s been more and more common for people to weigh the option of, ‘Do I downsize? Do I take the equity that’s grown in my house?’”

Here are the steps to take as you consider the option.

Assess the market

Selling (and potentially downsizing ) your home and pocketing the equity is a good strategy in a market where you can make it work. This is easier in pricier housing areas, when you may be able to trade your high-value home for a smaller place in a more affordable market. Vanguard’s analysis noted that relocators in California, for instance, were more successful at clearing equity in their homes than those in lower-priced markets like New Mexico and Texas.

Selling property also isn’t a slam-dunk task. “Just because you want $800,000 for your home, the market may not care,” says Andrew Herzog, a CFP in Plano, Texas. “You may be in the mood to move, but if nobody wants to buy your place in the first place, you’ve got nothing.”

Additionally, you have to make sure you can afford to buy a replacement home that you like. Check home prices in your desired location before putting the “For Sale” sign out.

“My parents — the price of their house has gone up fairly substantially, but everything they want to sell and move into has increased even faster,” Gottshall says.

Research the costs

Make sure you understand property taxes and the basic costs of living in your desired locale, as well as the costs for selling your home. (Hint: The real estate agent commission is generally about 5.5%.)

Also, if you’re picking up a mortgage on the new home, there will be closing costs, and rates are probably higher than they were when you last purchased property. All these numbers could chip away at your net sale profit.

“We’re at a place where 30-year mortgages are at 6.5% to 7%,” Gottshall says. “It could very well mean your monthly payment on a much lower-priced house is almost equivalent to the home that you’re in right now.”

In an area with a very low cost of living, do some digging to make sure you understand what to expect from the municipality. Are the streets and sidewalks maintained? How is garbage collected? Is the fire department responsive?

“I had one client who had a beautiful home on the Mississippi Gulf Coast,” says Ralph Bender, a CFP in Temecula, California. “I said, ‘Wow, you must like it, you basically pay no taxes down there,’ and he said ‘Yes, but you get no services either.’”

Weigh the current price of upkeep

Keeping your house could mean maintaining a big yard, replacing an old roof and managing a second-story primary bedroom into your later years. Selling gives you a chance to downsize your responsibilities and look for something that makes it easier to age in place.

“You have people with these four- and five-bedroom houses that no longer have kids staying with them,” Gottshall says. Moving to a home with less to clean and fewer stairs can make it easier to stay in your home long term.

Think about family

You don’t necessarily have to move closer to loved ones — but it’s helpful. Bender recalls a client who moved with his wife to South Carolina because they liked to golf. When the client died, his wife moved back to California because she didn’t know anyone in the area.

“There’s got to be a support network for the family,” Bender says. A community, he says, encourages social participation and contributes to overall longevity.

Test-drive the location

If you’re buying in a new city, visit in every season to ensure you like the area year-round, even in the snow or blazing sun. Vacation there if you can.

“Every area has its negatives,” Bender says. “You have to find out what they are before you move there and be prepared to deal with them.”

Hazel Secco, a CFP in Hoboken, New Jersey, remembers clients who moved from New Jersey to North Carolina and found that the lifestyle wasn’t what they expected.

“I think they were visualizing and thinking about the difference theoretically, but I don’t think they fully grasped the implications,” Secco says. “They had to come back after selling the North Carolina (house), so it just ended up costing so much more.”

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession. Foonberg was a real character. He said a lot that day. One of the things I remember is that he referred to his law degree as a “magic carpet.” He carried the example even further saying that when he kneeled on it, it took him to places he could never imagine. I thought it was a funny line, maybe a bit wacky.

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession. Foonberg was a real character. He said a lot that day. One of the things I remember is that he referred to his law degree as a “magic carpet.” He carried the example even further saying that when he kneeled on it, it took him to places he could never imagine. I thought it was a funny line, maybe a bit wacky. As time has marched on, I am beginning to realize just how right Foonberg was. His magic carpet analogy just keeps coming back to me as I look back at some of our clients’ cases that shaped the law and served to help others in a tangible way.
Mayfield v. ASC Incorporated Health & Welfare Benefits Plan (E.D. Mich. 2007) was one such case. The case would have otherwise been a routine healthcare denial but for the person who brought it. Christopher J. Mayfield was a dynamic salesperson with an infectious enthusiasm for life. He brimmed with optimism and punctuated every observation with a huge smile and hearty laugh. As lawyers, we know there are some clients whose call we would take anywhere, anytime. Chris was one of those clients.

He and his wife, Liz, an impressive person in her own work life, had a son who was struggling during the early stages of his development. The child’s actions suggested that he was having difficulty communicating and making sustained eye contact.

The couple sought out help from the child’s medical providers. They were informed along the away that their son, in all likelihood, had autism spectrum disorder. The condition was on the rise, and statistically the number of cases among toddlers was growing rapidly– 1 out of 150, 1 out of 100, 1 out of 60.

Still, there was no known cause and no known cure.

The couple began researching treatment options and seeking out the advice of medical providers. What they found was that young children receiving a decades-old therapy known as Applied Behavioral Analysis — or ABA — showed progress in establishing improved communication abilities and independent living skills. For those children on the spectrum who were higher functioning, ABA held the promise to help those children’s functional abilities become almost indistinguishable from children without autism.

As promising as ABA therapy was, there was a dearth of treatment centers. And because the signs of autism tended to surface around 18 months, which coincided with the age for administering the Measles, Mumps, and Rubella (MMR) vaccine, the internet was awash in misinformation. This was a perfect setting for health insurers to exploit. Medical plans reflexively denied all claims for ABA therapy by labeling it “experimental” or “investigative.” That meant that ABA treatment, which was costly, could be denied under the general exclusions section that appear in all health insurance contracts.

The problem with this reason for the denial for the Mayfields was that they saw real gains in their son’s abilities. Their son’s ABA therapy, which sometimes involved 40 hours per week of intensive work, was showing real functional improvements. And the setting where the therapy took place was safe – it was kid-friendly but also had sufficient clinical controls and was overseen by top-notch physicians on staff with a major medical center.

The Mayfields also noticed what later became known as the “parking lot problem.”  The cars in the ABA treatment center parking lots tended to be expensive cars suggesting that care was available for those with means, not those without. At the time, the cost for ABA therapy was as much as a year of college tuition with room and board — and there was no 529 plan to tap. In other words, without insurance coverage, parents were paying college-tuition size bills for therapy being provided to two-year-olds.

The Mayfields resolved to fight the denials and fight them hard. They asked me to go and observe the ABA treatment of their son. They set up interviews with ABA experts.

They made arrangements for me to receive a crash course on the therapy’s efficacy by doctors who provided me with studies and literature that would allow us to challenge the underlying basis for the denial. So, we went to heart of the denial — was ABA therapy really still in its experimental stages as the insurers alleged? There was so much research showing it was an established mainstream treatment that the old studies were embarrassingly shallow.

The Mayfield’s case was 100 percent evidence based. They kept it data-driven by design.

After all the internal administrative appeals, litigation, and ultimately a federal court hearing, Judge Anna Diggs Taylor’s order in their case was elegantly simple. She overruled the insurance company, threw out the exclusion as applied to ABA therapy, and ordered the treatment covered. She ruled the therapy was proven, mainstream, and effective. It was a brief, terse ruling. But this brief order was like throwing a stone in water, as it would have real implications for the rights of children with autism and their parents in the coming years.

The Mayfield case led to many cases seeking ABA therapy on both an individual and class-wide basis (which will be discussed in a future column). But the universal takeaway is that a
lawyer should listen and learn from their clients. No one knows a case better than the client, even a case involving purely medical evidence, and there is an extremely valuable knowledge base there.

The idea of listening, learning, and incorporating those ideas into a case makes for a winning strategy and rewarding lifelong relationship.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.