Health care

What everyone gets wrong about health insurance

Posted on by Kenneth Ballard / 0 Comment

Unless you’ve been living under a rock, you’ve likely encountered the story of Brian Thompson, the murdered CEO of UnitedHealthcare (herein, “UHC”), one of the major health insurance providers in the United States. And social media being flooded with everyone treating his death like the American version of Red October is about to begin.

One of the stories that came up in the aftermath was UHC’s use of AI, and the broader use of AI in the health insurance industry, and the continual mention that it’s only purpose is to deny claims. And that health insurance companies routinely deny claims in bid to save money because… stockholders.

Except all the discussion on this misses a lot of detail.

Loss ratio

And the first major detail being missed is the regulations that health insurance is subject to. It’s… a lot.

Let’s flash back to 2020 and the pandemic. If you drive a vehicle, hopefully you’re insured. And during the pandemic lockdowns, you more-than-likely got a message from your insurer that you’re getting either a refund or a credit toward future premiums on your auto insurance. Why did this happen?

It’s due to a regulation known as the “loss ratio”. That is the percentage of revenue – i.e., premiums – that must be spent on claims. Every type of insurance has this regulation to ensure they aren’t raking in tons of money on premiums and doing nothing with it.

And, again, every type of insurance is subject to a “loss ratio”. For health insurance, the Federal minimum standard is 80% for individual and small group insurance, 85% for large group insurance. (42 CFR §438.8) So that means every health insurance provider must spend around 85% of premiums on claims. That leaves about 15% for all other expenses. So that means for every $100 in premiums, they must put about $85 to paying claims, leaving the rest for other business expenses and building a reserve.

Which means…

Insurance companies aren’t denying claims purely to save money

Well, they kind of are, but not for the reasons people want to think.

During the discussion on UHC, it was pointed out that UHC had the highest claim denial rate in the industry. Which… okay… that has the potential to be a very misleading statement since… obviously there’s always going to be one who does. So how far away from everyone else are they on that claim denial rate?

Well, turns out, they’re allegedly denying about 1 in 3 claims. That’s… a lot. But that’s not the full story.

First, how many of those claims get appealed successfully? The typical cause of a claim denial is bad paperwork. And generally if there’s an issue with the claim, it should be getting kicked back to the provider who filed it without you hearing about it. But this, I know, doesn’t always happen and an insurance company may still send out an EOB on a problem claim showing the claim was denied.

And if you receive such, your next move should be to talk to whomever filed the claim so they can handle any issues and resubmit. Because.. mistakes happen.

There’s another possibility to entertain as well. Remember that “loss ratio” I mentioned earlier? If UHC’s claim denial is legitimately that high, meaning they are denying 1 in 3 claims, none of those denials are overturned on appeal if they’re appealed at all, UHC is complying with the loss ratio regulations, and you remember anything from your high school math courses, something else should be obvious: UHC is denying low-cost claims to pay out the high cost claims.

“High cost claims” would include things like… surgeries or lengthy hospital stays. “Low cost claims” would be things like doctor visits and prescriptions.

So, again, if UHC was legitimately denying 1 in 3 claims but still being compliant with the loss ratio… that’s the only explanation. They’re prioritizing the fewer big claims over the far more numerous smaller ones.

Which UnitedHealth Group’s balance sheet reports an overall loss ratio of about 83.2% for 2023.

Insurance companies aren’t as profitable as many think…

I’ve discussed business profit before on this blog. In short a lot of people have a lot of wrong ideas about it, starting with presuming the “profit” reported in the news and on financial statements is cash in the bank. And that presumption was on display in the wake of the UHC CEO’s death:

UnitedHealth Group’s cash flow statement paints a far different picture. Their cash position, the actual cash in the bank, increased by only $2 billion in 2023 across UnitedHealthcare and Optum, both of which are UnitedHealth Group subsidiaries. (As of this writing, final figures for 2024 are not yet available.)

Their change in cash position compared to almost $368 billion in revenue also means not even a 1% cash profit margin.

And, here’s the kicker, that’s funded by a $4 billion increase in long-term borrowing, with their balance sheet showing them sitting on over $62 billion in long-term debt. Without that increase in long-term borrowing, they would’ve had a cash shortfall of about $2 billion.

… and they can run out of money

This is a reality of insurance a lot of people don’t want to consider and goes beyond the loss ratio.

An insurance company isn’t going to pay out only up to the loss ratio and nothing beyond that. That’s how they get sued. But insurance companies aren’t sitting on bottomless buckets of cash either. And claims may get denied by an insurance company for the simple fact… they can’t pay on it. So they may kick back a claim merely to delay it.

Back in 2011, Cracked.com posted an article called “5 Useful Organizations You Think Are Evil (Thanks to Movies)“. Unsurprisingly on that list is insurance companies.

But you can’t lose sight of this: The thing that we really want insurance companies to do — pay for everything every deserving sick person needs, ever — is physically impossible.

Transport yourself to an alternate dimension where every insurance company employee is 100 percent honest and 100 percent compassionate. We’re talking a company whose cubicles and board of directors are both full of Mother Theresa. By the sheer, mathematical realities of the insurance industry, they will still find themselves denying claims to poor people who badly need care.

This is why during that health care debate, the opposing sides were both able to cite coverage-denial horror stories from every single system on Earth. Horror stories will always be part of the equation. It’s as simple as this: We want insurance companies to say money is no object when providing coverage, but we don’t say the same when paying premiums. That creates a gap into which sick people fall and die.

Again, though, a lot of people seem to presume that insurance companies – and businesses in general, if you look at the minimum wage debates – are sitting on bottomless buckets of cash. And the thought that insurance companies can run out of money just never occurs to people. No, if a claim is denied, it’s entirely because greedy corporate billionaires want grandma to die because it’s better for their bottom line.. Give me a fucking break…

Your premiums cover claims plus all other business expenses – this includes things like taxes and salaries. And under Federal and State labor laws, everyone who works for the insurance company must be paid their agreed upon compensation. So if an insurance company can’t make payroll and pay the claim for your mother’s open-heart surgery, guess which one takes priority…

And…

Making all health insurance non-profit won’t change that

In the general sense of the term, “profit” means only that a company did not overspend their revenue, meaning even non-profit organizations also need to… turn a profit. Meaning, like all other businesses, they can’t overspend.

And we have non-profit health insurance in the United States.

The Blue Cross Blue Shield Association is a 501(c)(4) public welfare non-profit organization, as are all member organizations. Not the only one, but easily the best known name. Does anyone honestly think they never deny claims merely for being non-profit? While non-profits that run in the red can turn to donors to make up the shortfall, a non-profit organization that is careless with its cash will soon lose their donors.

Single payer isn’t unlimited either

The idea that insurance companies can’t run out of money is topped only by the idea that the government can’t either. Proponents of single payer health insurance in the United States seem to think that, under such a system, no one will be denied care, everyone’s claims will be paid, nobody will die of anything, and… everything will be just great!

Reality, though, paints a far more bleak picture. For starters, look no further than the Department of Veteran’s Affairs, the Center for Medicare and Medicaid Services, and health care on the various Native American reservations.

It also highlights that few in the United States remember the COVID lockdowns and why those occurred. Namely to prevent the entire health care system from being overwhelmed, insurance included. Since hospitals do not have an unlimited number of beds, clinics don’t have an unlimited number of exam rooms and personnel, pharmacies don’t have an unlimited supply of drugs, and insurance doesn’t have an unlimited amount of money.

Yet advocates for single payer seem to presume that, under a single payer universal healthcare system, all of those limitations just magically vanish. Yet most every country in the world was having COVID lockdowns, including the ones with single payer universal healthcare! The reality of what would happen under single payer is highlighted with what happened after the Affordable Care Act started taking effect: demand for health care would surge.

And with single payer, wherein all cost of healthcare gets foisted onto the government, it could easily overwhelm supply because the cost incentive to dissuade consumption and engage in preventative measures is not there.

The reality of single payer, as well, is it can only work when demand for health care doesn’t even meet supply, let alone exceed it. The same applies to insurance overall, actually, not just health insurance. Meaning with health insurance, you need a generally healthy population. A lot of European countries fit that specification. The United States… absolutely does not. And a lot of the countries everyone points to also have a lot more providers per capita than the United States, a metric known as “physician density”, something else I’ve also discussed on this blog.

And speaking of “countries everyone points to”, it also hasn’t escaped my notice, at least, that when discussing single payer, everyone points to countries that are an order of magnitude smaller than the United States as models the US can follow. I’ve already debunked that notion, so I won’t address it again here. They never point to health care in countries like… China and India, Pakistan, Brazil, or Indonesia. Countries much closer to the US in population – or bigger in the case of China and India – than the largest of the European countries.

Again, it’s extremely regulated

The notion that the United States has “unfettered” capitalism gets thrown around so much. And with that comes the thought that, since the United States has “unfettered” capitalism, nothing is regulated. Not health care and insurance, finance, drugs, food, automobiles. Nope, nothing. It’s all unregulated and companies can do whatever the fuck they want.

And that’s not even close to reality.

But even when the notion that nothing is regulated is not being proffered, a similar mindset is still on display. That an industry, as opposed to the entire economy, isn’t regulated at all if the industry or specific players within it do anything they don’t like. Insurance company denies claims? Industry needs a governing board and regulation. Despite being one of the most heavily regulated industries in the country.

And a similar idea was floated back during the health care debates ahead of the ACA passage, and in the aftermath of the 2008 financial crisis. Finance and health care are the most regulated industries in the United States, and were even prior to 2008. And contrary to popular belief, neither were ever “deregulated”. Instead the details of those regulations changed. It was labeled a “deregulation” because some regulations were repealed, but only so those could be replaced by others.

And a lot of people have the thought in their minds that repealing regulation, regardless of the reason, is always “deregulation” and always bad.

Insurance companies aren’t “practicing medicine”

No, seriously, they’re not.

In all the discussions about health insurance, the idea that insurance companies are denying care crops up all the time. And from this comes the idea that insurance companies are practicing medicine.

I’ve also seen the notion that the percentage of claims denied by insurance should always be zero, that insurance should pay on every submitted claim regardless of the details and whether the claim is just pure fiction. And that insurance companies should never be second guessing physicians, that if a physician says a patient needs something, insurance should pay for it regardless of the details or whether the idea is just completely laughable or entirely fictitious.

Setting aside how pervasive that would allow fraud to become, it flies in the face of the basic reality that health insurance is not sitting on bottomless buckets of cash. Even if UnitedHealthcare was operating on a 100% or higher loss ratio – given the amount of cash and equivalents they’re sitting on, according to their balance sheet – that still means they will eventually have to deny claims.

But when a claim is denied, insurance isn’t denying care. Only payment. The question then becomes how the provider and patient settle what the provider is alleging is owed.

But in most instances, insurance is brought in after the fact. I’ll use my most recent ER visit as an example since… there was no preapproval for setting my shoulder after I dislocated it. There also wasn’t any kind of preapproval for physical therapy, only periodic measurements for continued approval from insurance. Meaning eventually Cigna would choose to not continue paying their end of it.

And I think that came after about 16 sessions, twice a week.

Cigna didn’t say I could not continue the physical therapy, only that they weren’t going to pay anything toward it. Meaning if I did continue, it was entirely my cost. And I did keep going after that for a couple more weeks, following on my PT’s advice.

Sure one could say that insurance should’ve kept paying so long as I kept going. But that insurance decided to cut me off raised the question with the physical therapist of whether I still needed directed physical therapy. And Cigna chose to cut me off because my latest round of measurements showed my range of motion was pretty well back to normal.

Again, though, we did continue for a couple more weeks to make sure there weren’t any underlying issues that had yet to present. That then freed up the physical therapist’s calendar for patients who needed the directed therapy a lot more than me.

And insurance deciding to cut me off also freed up that little bit of money they otherwise would’ve spent on me to instead be spent on another patient.

You can’t “vote with your wallet”

In a market economy, that potential customers can “vote with their wallet” by walking away to competition is generally what keeps businesses doing what they can to keep customers happy. It is the check people have on market players, and it’s extremely important. If one brand has been going downhill in quality, excluding one-off issues that can never be completely eliminated, you generally have other options if reaching out to the brand doesn’t result in a change of course. And social media today gives you a platform to voice your dissatisfaction with the reasons for your dissatisfaction.

And where those checks cannot properly function or otherwise fail, the law provides a fallback wherein people can raise grievances to seek redress and compensation for any losses or damages.

That option largely doesn’t exist with health insurance in the United States. And a lot of that is thanks to the Federal government.

In an actual market economy, UnitedHealthcare would never be able to get away with a reported 1 in 3 denial rate on claims. Their customers would walk unless there was a very, very good explanation from UnitedHealthcare as to why their denial rate was that high.

But… customers largely… can’t just walk away.

If UnitedHealthcare is the employer-sponsored health insurance, employees can’t drop that until the company’s open enrollment period. And the employer also can’t drop it until their renewal period comes around – provided they aren’t locked into a multi-year contract in exchange for lower premiums.

And if the insured has a private plan through UnitedHealthcare, again, they cannot walk away from them until open enrollment unless you have a qualifying life event.

And you can thank the 111th Congress for this state of affairs with the inaptly-named Affordable Care Act.

That eliminated choice in the health insurance market in the United States by reducing everything down to just four options – bronze, silver, gold, and platinum – if you weren’t getting insurance through your employer. Throw on top the “individual mandate” and requirements for what even individual plans had to cover – e.g., maternity even if the policy holder is male or a woman unable to get pregnant – along with the fact it was sold to Americans with wild promises that never came to fruition.

The requirement that, for example, single men purchase insurance with maternity care stems from the false idea that insurance companies were maintaining separate pools for each type of coverage when there’s nothing to suggest any health insurance company was doing anything of the sort. Instead you purchased care you needed, and insurance companies paid out claims pursuant to the loss ratio.

Before the Affordable Care Act was passed, I was able to buy an individual health insurance policy without having to wait for a specific enrollment period. And the plans were relatively inexpensive since you weren’t forced to buy coverage you were never going to use.

Now that option is not available unless you have a qualifying life event. And the premiums skyrocketed as well, nearly tripling in the about 6 years I had the plan before I canceled it as a new employer had a better employer-sponsored plan through the same company – Blue Cross Blue Shield of Kansas City – for less out of my paycheck compared to what I was paying per month on the individual plan.

And single payer eliminates choice entirely. Since if the single payer provider reveals that they were denying 1 in 3 claims, you can’t go anywhere else. You’d have no choice but to just… live with it.

Which, unfortunately, isn’t much different from the current state of affairs.

Virtualization

Installing Volumio into VirtualBox

Posted on by Kenneth Ballard / 0 Comment

Three simple steps:

  1. Download the Volumio image
  2. Convert the Volumio image to a VHD
  3. Create the VirtualBox VM using the converted VHD

Note: Follow these steps on your VirtualBox host.

Download the Volumio image

Go to their download page and download the PC (X86/X64) option. Extract the .img file from it using your favorite compressed archive utility.

Convert the Volumio image to a VHD

Now to convert this to something that VirtualBox can use. And VirtualBox provides a command-line tool to do this: VBoxManage. So run this command:

VBoxManage convertfromraw /path/to/downloaded_volumio.img /path/to/converted_volumio.vhd --format=VHD

On Windows, VirtualBox does not install itself into the path, so you’ll need to do this first:

path=%path%;C:\Program Files\Oracle\VirtualBox

Once you have the converted Volumio VHD file, you can create the virtual machine.

Create the VirtualBox VM

Note: these steps presume you’re using VirtualBox 7.1 or later. In the VirtualBox Manager, create a new VM with these settings:

  • Name and Operating System:
    • Name: Volumio
    • Type: Linux
    • Subtype: Other
    • Version: Other Linux (64-bit)
  • Hardware
    • Base Memory: 4096 MB
    • Processors: 2
  • Hard Disk
    • Use an Existing Virtual Hard Disk File: (Add the converted Volumio VHD made earlier)

Click Finish. We’re not done yet. Open the settings for the new VM and change these settings:

  • Display
    • Video Memory: max it out
  • Storage
    • Remove the IDE adapter and CD drive
  • Network
    • Adapter 1
      • Attached to: Bridged adapter

And click OK, then start the VM, preferably using a Detachable Start. It should boot successfully into the UI, presenting you with the first run setup.

Programming/Technology

Why we “romanticize” past developers

Posted on by Kenneth Ballard / 0 Comment

Let’s look at this:

And quoting it directly in case it disappears later:

People like to romanticize the devs of the past. “People just don’t care about engineering now…”

JFC, there was an entire crisis(Y2K) that had to be averted because 70’s and 80’s devs couldn’t think past the year 1999 because they wanted to save a couple bytes.

Software engineering is just as lazy as it’s ever been, we just have more ways of doing it now.

Looking through his profile, he lived through Y2K, going into community college starting in 2009. And he likely also would’ve learned in his programming classes why that happened. Meaning to say the software engineers of old wanted to save 2 bytes, and so got lazy in their coding, is just outright stupidity.

And what we largely have here, what Chris is putting on display, is taking the technology of today, the standards of today, and applying them to past events. He’s taking what is possible today – the fact we can store all 4 digits of the year without issue in any system – and acting like it had to have been possible back then.

And technically it was. But there were significant trade-offs. Because there were significant limitations that Chris has never had to face. Limitations the majority of software developers alive today have never had to face.

Two of which were processing speed and storage capacity.

On the latter, you’re probably aware that your cell phone today has more processing power than all of the computers that allowed NASA to put Apollo 11 on the moon. You’ve probably also seen this famous picture of Margaret Hamilton standing next to a printout of the code that she and her team wrote to accomplish that:

And back in the 1960s, the whole field of computing and software development was in its infancy. The code that Hamilton is standing next to is dwarfed by anything today in terms of functionality and size. Because back then computers didn’t have the breathing room for everything we take for granted today, and took for granted even 20 years ago when Windows XP was still the dominant operating system with Vista on the horizon.

Meaning cutting 2 bytes out of a record size made all the difference.

This blog post wouldn’t even fit in RAM on most desktop computers from the 1970s and 1980s. The full-size version of the above picture available on Wikipedia Commons wouldn’t fit in the RAM on the IBM XT I used when I was a kid back in the 1980s.

That isn’t to say that people are spoiled today, though they certainly are. Programmers especially. Imagine writing programs for this:

That is the Texas Instruments TI-82 graphics calculator. It was considered a pocket computer back when I was in high school, sporting a Zilog Z80 processor running at 5 MHz with 32 kilobytes of RAM… oh wait, let me repeat that. It had just 32 KILObytes of RAM. Of which 28 kilobytes was user-accessible and the other 4KB reserved for the “operating system”. And that RAM was used for storage as well – if both the AA batteries and the coin cell battery died, you lost everything stored on it. (The OS was stored on a separate ROM and copied back into RAM after the batteries were replaced.)

For comparison, the computer I’m using to write this blog post has 32 GIGAbytes of RAM. A million. times. more.

The preceding TI-81 was worse still, having only 2400 bytes of user-accessible RAM. Imagine writing a program for that! Given Chris’s post above, I think that needs to be part of any modern programming curriculum.

As a calculator, the TI-81 and TI-82 were very capable, but I very much preferred the HP 48 I had in my high school AP calculus class. (Pretty sure it was the 48G.) It had a more capable programming language compared to the TI-BASIC featured on the TI-82, though it’s reverse-polish functionality took some getting used to. The 48G wasn’t much better than the TI-82 in terms of user storage, but it at least gave you the full 32 kilobytes. The GX had 128 kilobytes. It also used a separate 512KB ROM for the “operating system”.

Back when I was first learning to program, the early 1990s, my father gave me a torn up book of text-based games written in BASIC – the Beginner’s All-purpose Symbolic Instruction Code. And it was fun and one hell of a learning experience taking those programs and adapting them into TI-BASIC for my TI-82 and, later, the TI-85.

The largest in that book was a Star Trek game. It wasn’t possible to convert that for the TI-82 due to limits in how many lists and matrixes it could store, but I could just barely convert it for the TI-85. It took forever to type into the calculator and barely fit due to the storage limits. But when I showed it off to my friends at school, it immediately made them envious.

Anyway…

When the total memory space for your code and any variables it uses is measured in only kilobytes, imagine the compromises you have to make, the ingenuity you needed to exercise to write a program that met your requirements – after convincing the bean counters that half what they wanted isn’t even physically possible.

Then scale things down smaller still.

We’re talking about a time when single-character and two-character variable names were the norm out of necessity. Because having longer variable names peppered through your code meant risking running out of storage space for the code, provided your compiler or interpreter didn’t run out of memory trying to process it. Comments weren’t really a thing either, again due to storage and memory limitations – they were almost non-existent in that BASIC programs book I mentioned earlier.

As memory and storage capacities grew, and processors became far more capable, better practices were adopted. More comments for your code started becoming a thing, followed by self-documenting code. Frameworks and APIs became more capable as well because the systems that would be compiling or running the code could handle all of that without running out of memory – mostly.

We romanticize the developers of the past – including those like Margaret Hamilton and her team, Adm. Grace Hopper, Dennis Ritchie, John Kemeny and Thomas Kurtz – because of the limitations they had to work with, because of what they were able to accomplish despite those limitations.

Again, Hamilton and her team wrote the code that helped put Apollo 11 on the moon. And programmed that for systems dwarfed by even my TI-82.

And, again, those are limitations software engineers today will likely never have to face.

Programming

Chart.js and Ghost

Posted on by Kenneth Ballard / 0 Comment

I’m migrating this site over to Ghost. Over the 15+ years I’ve had this blog on WordPress, there are a few plugins I’ve come to rely on heavily. And the one that’s been the toughest to find an alternative to is Visualizer. It renders the graphs on the several pages that use it, such as my very long article on abortion.

In the search I discovered Chart.js, which looks to be a viable replacement. But integrating it into Ghost isn’t all that easy. Rather than use code injection on the posts where I want to use it, I opted to create a “partial” that is scoped based on an internal tag:

{{#is "page,post"}}
  {{#post}}
    {{#has tag="#chartjs"}}

    <link rel="stylesheet" href='{{asset "css/chartjs.css"}}' />
    <script src='{{asset "js/chartjs/chart.js"}}'></script>
    <!--<script src="https://cdn.jsdelivr.net/npm/chart.js"></script>-->
    <script>
    function chart(chart_options) {
      new Chart(
        document.getElementById(chart_options.container_id),
        {
          type: chart_options.chart_type,
          data: chart_options.chart_data,
          options: {
            responsive: true,
            plugins: {
              legend: {
                position: chart_options.legend_position || 'right'
              },
              title: {
                display: chart_options.display_chart_title || true,
                text: chart_options.chart_title
              }
            }
          }
        });
    }
    </script>

    {{/has}}
  {{/post}}
{{/is}}

This is the code I’m using as of this writing. I’ll update this post as I go, but for now this appears to give me what I want. I have the above in a partial – chartjs.hbs – and call it from within the header on my default.hbs template file after everything else. That way I’m not relying on per-post code injection to use it. Instead I rely on an internal tag – #chartjs – to turn it on for posts that use it over loading it for every post.

For the time being I’m not loading chart.js externally while I’m developing a theme, hence the CDN line being commented out in favor of pulling from the assets.

And this is an example of calling the chart function through an HTML card to provide a line graph like this:

<div class="chartjs"><canvas id="mass-shootings-per-year" /></div>
  <script>
  chart({
    container_id: 'mass-shootings-per-year',
    chart_type: 'line',
    chart_data: {
      labels: ['1982', '1983', '1984', '1985', '1986', '1987', '1988', '1989', '1990', '1991', '1992', '1993', '1994', '1995', '1996', '1997', '1998', '1999', '2000', '2001', '2002', '2003', '2004', '2005', '2006', '2007', '2008', '2009', '2010', '2011', '2012', '2013', '2014', '2015', '2016', '2017', '2018', '2019' ],
      datasets: [{
        label: 'Mass shootings',
        data: [ 01, 00, 02, 00, 01, 01, 01, 02, 01, 03, 02, 04, 01, 01, 01, 02, 03, 05, 01, 01, 00, 01, 01, 02, 03, 04, 03, 04, 01, 03, 07, 05, 04, 07, 06, 11, 12, 10 ]
      }]
    },
    chart_title: 'Mass shootings per year, United States, 1982-2019'
  });
</script>

Which looks like this:

This can definitely be enhanced further, and I’ll update this post or put everything on Github as things progress.

Contract law

Labels won’t save you

Posted on by Kenneth Ballard / 0 Comment

Over on Threads, a user going by brandothecommando_ said this:

If you are a photographer don’t put non refundable deposit for booking. If you get sued you may end up having to pay back the client’s deposit. Use non refundable retainer or booking fee. Please keep in mind the verbage you use for the contracts so that way it’s strong. And for the love of god as a photographer make sure you don’t break your own contract and loose out on money because you got sued.

And since I’m writing this article, it should be plainly obvious that this is NOT correct. Before we dive deeper, here was my reply:

Nothing wrong with calling it a deposit. Since “deposit” implies that it will be credited toward the final balance without needing to spell it out.

“Retainer” or “booking fee” have different meanings under common law and it won’t be clear, unless you spell it out in your contract, that said “retainer” or “booking fee” will be credited toward the final balance and isn’t a separate charge.

But you do need to make it clear that the deposit is non-refundable except where required by law.

And calling it a “booking fee” or “retainer” doesn’t save you from having to refund that if you’re sued and the client is seeking a refund of everything paid because you failed to uphold your end of the contract.

“Deposit” vs “retainer” or “fee”

If I say that I charge $1,000 for a photo shoot and there is a $500 deposit due up front, what is your assumption? Likely that the $500 is going to be credited toward the $1,000 (plus any other fees per the contract). But if I call it a “retainer” or “booking fee”, you’ll likely think that fee is a separate charge from the $1,000.

And so will the law.

The easy demonstration on this is the “application fee” for an apartment vs the “security deposit”. The security deposit is credited toward anything you owe your landlord after you move out. This could include costs to clean the apartment to get it ready for the next tenant or repairs to any damage you cause. And if the deposit you paid is more than the costs incurred, the landlord is supposed to refund the remainder – unless the contract says it won’t refund anything less than a certain amount, like anything under $10.

Fees are also typically not refundable, but deposits generally are. Unless you say the deposit isn’t refundable. But to elaborate on that idea, I’ll just pull in the section “Non-refundable deposits” from this article:

If you’ve bought a house, you should be familiar with “earnest money”. For those not in the know, it’s a cash deposit (mine was $500) that shows that you are serious about buying the house. It is credited toward your closing costs, but is non-refundable if you back out of the purchase with some exceptions (e.g. you discover something substantial about the home not on the seller’s disclosure form).

So for services booked months or longer in advance, the non-refundable deposit is similar to “earnest money”. It shows you’re serious about their services, secures them for the date in question, and is non-refundable should you back out.

Making anything similar to this idea incorrect: “Services were never rendered, so the videographer has no right to keep the money.”

And the contract will stipulate the deposit is not refundable under any circumstances (except where law requires), or will give only some circumstances in which the deposit may be refundable in whole or part. This doesn’t mean the money is absolutely gone. But getting it back requires getting the contract nullified in Court (good luck there!) or the other party (photographer, etc.) must have backed out for some reason or failed to show.

That doesn’t mean the service provider cannot refund the deposit under any circumstances. Only that they won’t be obligated to do so under the contract for circumstances not expressed in the contract. The refund will, instead, be entirely at their pleasure.

You’re free to request it, but they won’t be under any obligation to give it.

So this begs the question, when is a non-refundable deposit actually refundable?

Refunding a non-refundable deposit

Obviously the party receiving the non-refundable deposit always has the option of refunding it absent an obligation to do so. So when is there an obligation? In short, when the contract or the law says so. The contract can enumerate conditions under which the deposit is refundable in whole or part, thus creating a contractual obligation – e.g., when the opposing party dies.

But when is there a legal obligation where the contract is otherwise silent? Generally the party receiving the deposit must be in breach of contract. (There are plenty of other circumstances wherein that money, and potentially more, may be recoverable by the other party, but I’m not writing a dissertation here.)

Going on photography, since that’s the context for the statements that prompted this article, that would mean the photographer fails to show for the shoot for reasons not outside their control, or fails to otherwise fulfill their obligations under the contract – e.g., not turning over the photos in the amount of time the contract specifies, absent extenuating circumstances. And if the photographer recognizes they’re in breach, they should do the right thing and refund the deposit without any fuss.

But if they don’t and their client sues them, the client can seek refund of the deposit and remedy of any other damages since the photographer failed to uphold their end of the bargain. And calling it “non-refundable” won’t help you. Saying the deposit is “non-refundable in all circumstances” is unenforceable.

And calling it a “booking fee” or “retainer” won’t save you either.

Since if you’re sued and your client is seeking monetary damages where injunctive relief won’t suffice or isn’t possible, and the Court rules against you, the Court will order you to pay a specific amount based on the losses or damages the client incurred. An amount which will likely also include everything the client paid you – i.e., all deposits, fees, and the like.

“If the service didn’t happen”…

The above-mentioned user replied to me:

Calling it a deposit is meaning you are paying for a service in advance in the future. Even if you call it non refundable and let’s say the service didn’t happen and client were to sue you would lose.

I’ll admit I got a little harsh in my feedback, but at the same time I also have a LOT more than a layman’s understanding of contract law. As I’ve said before, there are a lot of misconceptions floating around about how contracts work and don’t. But their reply to me also highlights that people will say contracts aren’t bulletproof, which implies they’re easy to get out of, while also saying that money is easy to shield from a lawsuit by… labeling it something else.

Yeah that’s not how it works.

It isn’t as simple as “if the service didn’t happen”. It really depends on WHY it didn’t happen.

You really need to learn about contract law before speaking like you know what you’re talking about. Because it’s painfully obvious you don’t given you think calling it a “booking fee” or “retainer” instead of a “non-refundable deposit” somehow shields that from recovery should your client sue you and win a monetary award against you – regardless of why they’re suing you.

And while you’re learning about contract and common law, make sure to also brush up on how relief works in the context of a civil suit outcome. Monetary relief and injunctive relief. Since if your client sues you, everything the client paid you and then some is potentially recoverable.

And there isn’t anything you can write into your contract that will shield anything your client pays you. Not even a “liquidated damages” clause can do that depending on why your client is suing you.

Since depending on WHY your client is suing you, the tort that is alleged and the damages the client is seeking to recover, they could end up recovering MORE than what they paid you. Since the lawsuit is entirely about making the party who is injured as whole as possible.

Which is why business insurance is so, so important.

Sure your client could sue you if the service doesn’t happen. They can also sue you for looking at them funny if they decide to call it “harassment”. Whether they prevail is a different story, and a lot of… caustic people in the world know that merely threatening a lawsuit often is enough to get someone to comply with their demands, however unreasonable.

The point of a civil suit is to make an injured party whole as best as possible. Which is why no language in a lawsuit can shield from recovery anything a client pays you.

While I’ve said before that contracts are damned hard to get nullified, there is one reality about contracts that everyone needs to understand: where the law and a contract conflict, the law wins. Put anything into a contract that conflicts with common law (i.e., Court precedent) or statutory law and the Court will rule it unenforceable.

Put any language in the contract that attempts to shield from recovery via a lawsuit anything your client pays you, the Court will rule that unenforceable if you’re sued and just act like that language was never there in the first place.

Constitution/Fifth Amendment

Talk about short-sighted

Posted on by Kenneth Ballard / 0 Comment

Article: Letters to the Editor: Trump has vowed revenge. Start the pardons, President Biden

From the above:

To the editor: Harry Litman relies on the wisdom of grand juries, juries and judges in protecting the subjects of President-elect Donald Trump’s enemies list. However, even unsuccessful prosecutions could bankrupt many innocent “defendants.” (“Will Trump launch a reign of terror against his list of enemies? There’s little to stop him,” Opinion, Nov. 7)

The easiest way to provide all of “Trump’s perceived enemies” with legal (and financial) protection from frivolous prosecution would be for President Biden to compile an enormous list of people to pardon before he leaves office, including prosecutors, judges, journalists, pollsters and others.

Jack Smith, Liz Cheney, Adam Kinzinger, Adam Schiff, Kamala Harris, additional members and witnesses of the House Jan. 6 Committee and many others come to mind.

This won’t eliminate the threats to democracy, but at least it might provide protection for some people.

Mark Henderson, Folsom, Calif.

Pardons and clemency by the President or a Governor require the person being pardoned to accept it. In accepting a pardon or clemency from the President or Governor, you are also openly admitting guilt to at least what is mentioned in the pardon. Even if you don’t explicitly say you’re guilty, accepting the pardon means you’re saying you did it unless the pardon states clearly that you are being pardoned because you’re innocent.

So, for example, if the Governor of Kansas were to issue me a pardon for, at the extreme, murdering a police officer, accepting that pardon would mean I’m admitting to being a cop killer.

Meaning, given the above, if President Biden were to preemptively pardon all the individuals so named, plus himself and others, those individuals accepting the pardons would, more or less, be an confessing and admitting guilt to at the least whatever is outlined in the pardon. Meaning it absolutely would NOT be in Biden’s interest, or the interest of the Democratic Party, to even consider issuing such pardons. But if Biden were to ignore that and issue them anyway, it would also not be in the best interest of those being pardoned to accept them.

At the same time, the pardons also eliminate any protection of the Fifth Amendment to whatever is named in the pardon, meaning the individuals who are pardoned can be compelled via subpoena from a Court or Congress to provide testimony to whatever is named in the pardon. Since a preemptive pardon is, in effect, a grant of immunity, meaning self-incrimination is impossible.

Meaning the grants of pardons, and their acceptance by those pardoned, won’t end any investigations. It’ll only amplify them.

I don’t think Mr Henderson from Folsom, CA, really thought this through.

Religion

Atheism has nothing to do with it

Posted on by Kenneth Ballard / 0 Comment

Let’s get into this:

Now I’m not going to start off by saying anything positive about the speaker here. I’m just going to dive right in and say that Gothix is wrong here.

She pulls the same fallacy I see time and time again from the right by conflating a lot of negatives with atheism. Here she starts off by saying that a sense of urgency among leftists, such as the climate alarmism, is due to leftists being atheist and trying to make their own heaven on Earth since they don’t believe in a Heaven after death. Which has a bunch of implications, but I’m not taking that tangent.

So let’s keep this just on Gothix and her statement that most on the left are atheist:

First of all if we look at the breakdown of people who tend to be involved in psychology, these people tend to lean more one way on the political spectrum. Okay they… they usually tend to be left liberals, progressives. Most people on the left tend to be secular, tend to be atheist.

Secular, yes, but not atheist. No, they are not the same.

Nearly 3 in 4 people in the US is Christian according to the World Religion Database as of 2020. Meaning a very substantial portion of those she’s attempting to describe are actually people who DO believe in an afterlife, don’t believe that this life and world is all there is. And the US has gotten more religiously diverse over the years as well courtesy of immigration.

Then there’s the flip side of her statement: that atheists are leftist. And, no, that isn’t the case. There is a very sizeable portion of atheists and agnostics who are conservative and libertarian – something that continues to surprise a lot of atheist talking heads. Sure the majority of atheists are left-leaning, but left-leaning doesn’t mean leftist, and progressive doesn’t mean leftist either.

The number of people who are leftist is actually relatively small. They’re very vocal, yes, but they aren’t even a plurality of everyone who falls left of center.

But there’s also a lot of political diversity among the religious, too. Liberal and leftist Christians, for example – yes, they exist. “Blue Dog Democrats” are another. The guy who penned the original Pledge of Allegiance was a Christian socialist.

So can we please stop acting like everyone who’s left of center is an atheist and everyone who’s right of center is religious? That fallacy has been floating around for so long that I see atheists repeating it. And the number of times I’ve been called a Christian merely for disagreeing with atheists is staggering…

So Gothix is just engaging in more of the same misrepresentation of atheists I’ve seen time and again.

And to summarize, most atheists are left of center, but most of those who are left of center are religious to some degree. Simply because most people are religious to some degree. And a sizable portion of atheists are conservative or libertarian.

Elections

Installing a losing candidate

Posted on by Kenneth Ballard / 0 Comment

Article: Former Kamala Harris aide says Joe Biden should resign so she can serve as 47th president

A couple things this article mentions:

1. Getting Kamala as the 47th would render worthless any merchandise the Trump camp has already created branding him as the 47th President. Which, I mean… how petty can you get? I wonder if Simmons applauds evicted tenants who wreck the homes they’re evicted from.

2. She wouldn’t be VP anymore, so wouldn’t have to oversee the Electoral Vote certification on January 6th. Oh yes, we must spare her feelings in this because… let me guess… she’s a woman? Give me a fucking break!

3. She’d still be the first female President…. Yeah, UNELECTED! But suddenly that little detail doesn’t matter here? Does no one have any consistency in their political positions anymore? And personally I don’t care whether Jimmy Carter would get to be alive with the first female President.

4. “It’d fulfill his promise (to be a transitional president).” No, that’d make him a disruptive President. It’s why the idea’s never been considered by any previous President. So to consider it now is… unbecoming in the kindest terms.

And it’d also give Trump one last talking point about Biden deciding to just run away rather than face Trump one last time on Inauguration Day. Something about pulling out of the race early for his anointed successor, and running away again rather than seeing his term through to the end. I mean, Biden faced Trump and won in 2020, so why not face him again?

And, again, it’s acting like Harris is entitled to the Office.

At this point, the closest she’ll get to being President is if she and half the cabinet pull the 25th Amendment on Biden.

Though I do expect the attempts to lobby Electors to start appearing ahead of their vote next month with the same talking points and appeals we had in 2016. “Do the right thing and save this country from Trump!” Though more Electors defected from Clinton (4 in Washington and 1 in Hawaii) than Trump (2 in Texas). Which led to the Supreme Court upholding the States’ power to prosecute faithless Electors…

Jamal shows what happens when you get way too emotionally invested in an outcome that you must see that outcome by any means possible… Where “Harris will be the 47th President!” becomes “Biden must resign so Harris can be the 47th President!”

Elections

Harris was a horrible candidate

Posted on by Kenneth Ballard / 0 Comment

Article: Bernie Sanders blasts Democratic Party following Kamala Harris loss

He’s not wrong. Aside from how he described Israel’s war, but everything else he said is correct.

The Democrats need to be making a broader appeal to the American people, not keep acting like it’s 2020 because Election Night showed that continually screaming “Trump is a fascist” isn’t going to work.

Yet the Democrats and leftists are doubling down. No surprise, honestly. And what’s sad is the number of leftists who are like “I guess we’re not ready for a female President”. No we’re perfectly ready for one. The parties just have to run the right candidate. Clinton wasn’t it. And Harris absolutely was not it.

You can’t run just any woman as a candidate for President and then scream “America isn’t ready for a woman President” when that candidate loses. Clinton and Harris both were anointed by the Democratic establishment, not chosen by the party’s voters. With Clinton being chosen by the party’s “super delegates”.

And worse for Harris was simply the fact she was never in a primary. And if the Democrats had sprung an emergency primary following Biden’s withdrawal, she likely would’ve lost.

But America absolutely is ready for a woman President. But, again, it needs to be the right candidate.

I’ll put it this way… if the Democrats had embraced Tulsi Gabbard in 2020 over Biden (and Sanders for the brief time he was the frontrunner until he got torpedoed by the establishment), we probably would have been RE-electing her this time around instead of Trump. And probably in a landslide reminiscent of Reagan’s landslide victory 40 years ago.

We absolutely can have a female President. But the parties need to run the right candidate. And in 4 years, sure the Republicans will likely run JD Vance. And if he picks Gabbard as his running mate, since she’s now a declared Republican, he’ll likely win. Unless the Democrats can find someone like Gabbard with broad appeal to the left and right and stop letting the identity politics rule their roost.

Ethics

About that Hertz $10,000 fee

Posted on by Kenneth Ballard / 0 Comment

Let’s talk about this:

@lifeisfun3000 Unlimited means a reasonable amount? @Hertz #scam #rentalcar #hertz #fyp #viralvideo ♬ original sound – Logan

So to summarize, the person you’re seeing in the video rented a car from Hertz for a month and put 25,000 miles on it during that time. And Hertz is wanting to assess $10,000 against him for it.

Now one thing people seem to forget about a car rental is simply… you have to take reasonable care of the vehicle while it’s in your possession. If you damage the vehicle, you’re responsible for it. And the car rental company will try to bill your insurance or you for the damage.

Unlimited mileage does not mean zero responsibility.

So my question on this situation: did he ever get the required maintenance done?

Across 25,000 miles, the vehicle would’ve required three (3) or four (4) oil and filter changes, depending on how the vehicle was being driven. Which given he’s putting nearly 1,000 miles per day on the car, that would mean the oil and filter would need to be changed pretty much every week, with the tires rotated at that time. The engine air filter would need replaced at least twice. Cabin air filter changed out at least once. Along with any other manufacturer-required maintenance based on the make and model as part of maintaining the warranty.

So did he have that done? I can’t find anything saying he did.

So there were likely maintenance reminders going off in the vehicle as well. Meaning he was ignoring them or figured out how to turn them off when they did come up, rather than taking the vehicle back to Hertz so they could do the maintenance or arrange for him to take the vehicle someplace to be maintained at their expense.

Driving excessive miles without adequate maintenance will damage or destroy an engine. So the engine is likely toast. And that’s damage to the vehicle per the contract. How is it not?

That also means the manufacturer vehicle warranty is void, meaning Hertz will need to rotate that vehicle from its fleet. And given the engine is toast, they can’t sell the vehicle without replacing the engine, which severely damages the resale value of the car.

Again, unlimited mileage does NOT mean zero responsibility for the car. And unless the above Tik-Toker can prove they did have maintenance done on the car, the $10,000 fee is perfectly reasonable here.

And if the fee is because he damaged the car, Hertz needs to make that clear.

Update

I was able to find one comment where the person in the video said they had maintenance done on the car. The problem is they didn’t specify whether it was only once or several times across that month

But a lot of people have a lot of misconceptions about how long an engine can go between oil changes. First of all, how long the oil can last is immaterial. The filter is more important. And even if a filter is rated for 20,000 miles – like Mobil1’s Extended Performance filter – you still shouldn’t run a filter that long.

Then there’s also what the car’s manual says. If the manual says to never exceed a specific interval, don’t do it. For example, the manual for my 2018 Jeep Compass says this:

There is no similar warning for my wife’s CR-V in the manual, but I still won’t go far over 10,000 miles on the same engine oil, even though I am using Mobil1 Extended Performance which they claim is good for 20,000 miles.