Health Care Before Creditors

Means test surpriseThe sweetest words in an otherwise miserable bankruptcy means test are found  buried in a long paragraph of § 707(b)(2)(A)(ii)(1):

The debtor’s monthly expenses “shall include reasonably necessary health insurance, disability insurance and health savings account expenses…”

This provision, standing independently in the paragraph, stands for the proposition that the debtor can deduct from his CMI the costs of health insurance that he ought to have but may not have now.

It is a tribute to the late Senator Ted Kennedy who engineered the addition of this sentence to BAPCPA as it rolled toward enactment in 2005.

The characterization of these expenses as “reasonably necessary” distinguishes them from those expenses deductible in amounts prescribed by the IRS standards.  It also frees these expenses from the need for a history of such expenses.

If the debtor doesn’t have health insurance, disability insurance, and a health savings account, those costs are deductible from income before creditors have any entitlement to the debtor’s otherwise disposable income.

I know that lots of trustees haven’t gotten the message that expenses on the means test are forward looking.  They want a history of payment to support the projection of a particular expense that isn’t tied to an IRS allowance.

They’ve apparently forgotten the statutory interpretation stricture that what wasn’t changed by amendment remains the same.  BAPCPA made income, for the purposes of projected disposable income, backward looking.  Unchanged, therefore, was the projection of expenses into the future.

The structure of this paragraph cuts these expenses free of that argument.  They are deductible if they are “reasonably necessary”.  That’s why there is the box to check on line 34 of B-22A to indicate that the debtor isn’t currently paying those items.

It makes sense, unlike so much of BAPCPA.  A Chapter 13 plan of 60 months is unlikely to complete if the debtor and his dependents must continue to go uninsured.

So, don’t miss the opportunity to provide for these health and stability related expenses on the means test, just because the debtor doesn’t currently pay them.

Image courtesy of truthout.org.

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  • Kameron

    Is there any case law to back that up? Spoke with my chapter 13 trustee and she said that she would object and wouldnt accept that reasoning.

    • Cathy

      The trustee is just an advocate; let her object and let a judge decide the issue.

  • Cathy Moran

    I looked through the Means Test Compendium that Judge Clement, Doug Jacobs and I assembled and we concluded “no reported cases”. I asked at Amelia Island for input from the field if anyone has a reported case where we thought there were none on a subject. Please send them to meanstestcompendium@gmail.com.

  • Curious Curiously

    I’m curious your opinion whether a debtor should make HSA payments prior to filing, then, since HSA balances aren’t exempt? Is it better to just include the future intention to pay the full HSA amount allowed by the IRS even though the debtor hasn’t fully funded their HSA in the past couple years. In other words, if a debtor has cash on hand that could be spend INTO an HSA to create a track record of paying those expenses, is it worth doing? Particularly if they have medical expenses that can offset the contribution?