Image via WikipediaAllstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement, New York State Insurance Superintendent James J. Wrynn announced today. The agreement follows an 18-month targeted National Association of Insurance Commissioners (NAIC) multi-state market conduct examination of Allstate’s claims handling practices. “Allstate has agreed to implement procedures to ensure transparency and fairness for consumers who have bodily injury claims,” Wrynn said. “The new processes ensure that claims will be handled consistently in different regions of the country, and consumers will have the right to get the information they need in order to understand how Allstate evaluates their claims and make sure they are fairly treated.”
The NAIC examination, for which New York was one of the lead states, focused primarily on Allstate’s use of claims handling software, particularly the software program, Colossus.
Colossus is a software program Allstate used to guide its settlement offers for bodily injury claims after automobile accidents. The examination found inconsistencies in Allstate’s management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or “tune” the software in a uniform and consistent manner across its claims handling regions.
Under the settlement agreement, Allstate agreed to make a number of changes to its claims handling process, including:
“It is important to note that we found no systemic underpayment of bodily injury claims,” Wrynn said. “While the issues addressed were serious, Allstate cooperated fully with our examination and is working to correct these deficiencies. Here in New York, we will continue to review the use of claims handling software by property/casualty companies.
“This settlement shows how state insurance regulators work together to protect consumers,” Wrynn said. “The four lead states – Florida, Illinois, Iowa and New York – worked cooperatively to conduct this examination and will keep working with the other 41 states that have signed on to this agreement to ensure it is fully implemented and consumers are properly protected.”
Allstate’s payment will be used to establish a regulatory fund. The fund will be used by the 45 signatory states, to the extent consistent with applicable state laws, to develop and train examiners to review and monitor the property/casualty industry’s use of software technology in adjusting claims.
Image by Kevandy via FlickrIn this very important decision, Bradley v. Sebelius, the 11th Circuit Court of Appeals approved a probate court’s equitable distribution findings to reduce a Medicare conditional payment obligation. Bradley, one of Charles Burke’s children and the P.R., brought suit against a nursing home for wrongful death as a result of nursing home abuse on behalf of the estate and ten surviving children.
Prior to Mr. Burke’s death, Medicare paid approximately $38k for his medical care in the hospital. The nursing home abuse case was settled for the entire amount of available insurance proceeds, $52, 500. A release was executed on behalf of the estate and the surviving children. Bradley notified Medicare of the settlement along with the procurement costs. Medicare refused to acknowledge that the claim had been settled for less than 100% of value. Medicare took the position it was entitled to the full amount of the medical expenses less procurement costs for a net amount of $22,480. Counsel for Bradley filed an application for the probate court to adjudicate the rights of the estate and rights of the surviving children in regard to the compromised sum received in settlement of the claims. Medicare was put on notice of the probate court proceedings and invited their participation in the proceedings. Medicare did not participate.
The state probate court ordered:
(c) . . . The Court after having heard sworn testimony on the potential value of each child/survivors’ independent claim, and after calling on its own experience in the range of values each child’s claim potentially carried, finds that the values asserted by the Personal Representative’s counsel in this motion are reasonable, and the Court adopts and specifically finds that each of the respective ten (10) survivors’ claims holds a value of at least $250,000.00. The Court notes that Medicare has asserted a claim of lien based upon payments of $38,875.08. Therefore, the Court finds that the total, full value of this case had the total, full value been collectible, was/is $2,538,875.08.
(d) Based upon principles of equity, the Court determines the medical expense recovery in the instant cause is $787.50. The Court has calculated such figure based on such component’s contribution to the total full value, if such value were collectible. The Court has not prioritized the recovery of medical expenses over the recovery on each of the respective survivors’ claims. Further, the Court determines the independent survivors’ claims recovery in the instant cause is $51,712.50. The Court has likewise calculated such figure based on all survivors’ claims contributions to the total, full value. The Court has likewise not prioritized the recovery on each of the respective survivors’ claims over the recovery of medical expenses.
Medicare refused to accept the probate court’s order that they would only recover $787.50. Based upon the Medicare Secondary Payer Manual, MEDICARE argued it didn’t have to recognize the probate court’s order since the order was not a decision on the merits of the controversy. Instead, the decision was an allocation of a settlement, not a judgment on the merits. See MSP Manual (CMS Pub. 100-05) Chapter 7, §50.4.4 (where “[t]he only situation in which Medicare recognizes allocations of liability payments to non-medical losses is when payment is based on a court order on the merits of the case”). Medicare argued that the probate court’s order was advisory in nature or superseded by federal law. Medicare was paid by Bradley under protest and an administrative appeal was pursued. All of Medicare’s administrative remedies were exhausted and Bradley lost at all levels. The case was appealed to federal district court for review of the Medicare administrative decisions.
The district court held that Medicare’s interpretation of the MSP, 42 U.S.C. §1395y(b)(2)(B)(ii)(2006), and its attending regulations, 42 C.F.R. §§ 411.37(c)(1),(c)(2), (c)(3)(2004), was reasonable. In making its decision, the district court relied heavily upon the Medicare Secondary Payer Manual, which does not recognize allocations of liability payments to non-medical losses unless it is an order on the merits of the case. The district court held Medicare was entitled to the entire conditional payment amount, less procurement costs, of $22,480. An appeal of that decision was taken to the 11th Circuit Court of Appeals.
The 11th Circuit examined the interplay between the Florida Wrongful Death Act (“FWDA”) and the MSP federal provisions. Bradley argued that the FWDA controlled. Under the FWDA, in a wrongful death action, survivors of the decedent may recover for lost parental companionship, instruction and guidance and for mental pain and suffering. Damages allowed to an estate are considered separate and distinct from damages recoverable by the decedent’s survivors according to Florida law. It is well accepted under Florida law that proceeds from a wrongful death action aren’t for the benefit of the estate, instead they are property of the survivors and compensation for their loss.
The court found that it was faced with an issue of first impression in this particular case and that was “[w]hose property is the settlement?” The court pointed out that the settlement involved medical expenses and costs recovered by the estate, subject to the MSP statute, along with non-medical, tort property claims of the surviving children for lost parental companionship under state law, not subject to the MSP statute. The Bradley court pointed out that all damages besides the decedent’s medical expenses where a property right belonging to the surviving children. Only the estate’s allocated share of the proceeds was subjected to Medicare’s claims.
The 11th Circuit was troubled by Medicare’s failure to participate in the probate court proceedings. Medicare declined to take part in the proceedings even though its position was adverse to the survivors in the proceedings. The court stated that “[c]ounsel properly turned to the Florida probate court for a proration, filing an application with the probate court to adjudicate the rights of the estate and rights of the children vis-à-vis the rights of the Secretary to the compromised sum received in settlement of the claims.” Yet even after the probate court made the allocation, Medicare asserted it was still entitled to the full amount less procurement costs based upon the MSP manual and refused to respect the decision of the probate court.
The court indicated that the essence of Medicare’s position was that the MSP manual was entitled to deference under Chevron, USA Inc. v. Natural Resource Defense Council, Inc. Under the Chevron Supreme Court decision, agency interpretation of a statute which it administers is entitled to deference. However, the Bradley court pointed out that the Supreme Court has held that “agency interpretations contained in policy statements, manuals, and enforcement guidelines are not entitled to the force of law.” The 11th Circuit concluded that Medicare’s reliance upon the MSP manual and the district court’s approval of such was misplaced.
The Bradley court correctly and aptly pointed out that that counsel for Bradley acted “sensibly” in settling the claim for the full value of all available insurance. If the MSP field manual was followed, it would lead to a “Catch-22” situation. It would force counsel to file a lawsuit inurring additional costs further diminishing the “paltry sum” available for settlement. According to the court, this would fly “in the face of judicial and public policy.” Therefore, the court held that Medicare’s position wasn’t supported by the statutory language of the MSP and its implementing regulations; the MSP manual does not control the law and it was error for the district court to rely “upon the advisory language contained in a field manual as the rationale for its opinion.”
Equally important, the 11th Circuit pointed out a second reason that Medicare’s position, as approved by the district court, was in error. The court reviewed the strong public policy favoring “expeditious resolution of lawsuits through settlement.” According to the Bradley court, Medicare’s position would have a “chilling effect on settlement.” This is so because Medicare’s position compels plaintiffs to force their tort claims to trial, burdening the court system. “It is a financial disincentive to accept otherwise reasonable settlement offers.”
For all of the foregoing reasons, the court held that Medicare was entitled to recover $787.50, as determined by the allocations of the state probate court. The Bradley opinion is a huge victory in the fight against Medicare conditional payment recovery in situations such as this. It is also is tremendously important because in the past the MSP manual has been treated deferentially, but not this time. Finally, it is important because it recognizes equitable distribution in the context of Medicare conditional payments and approves a state court’s allocation of damages in the context of a settlement. It should be a very useful case in fighting Medicare in the conditional payment realm.
Image via WikipediaAbbott has issued a Meridia Recall after being asked by the FDA to stop marketing the product in the United States due to results of a study indicating an increased risk of heart attack and stroke in Meridia users. Meridia (sibutramine) is a prescription weight loss drug marketed and sold in the United Stages by Abbott Laboratories, who have removed their Meridia webpage and issued a Meridia recall statement on their website.
According to Abbott, he FDA’s request for Abbott to remove Meridia from the US market is based primarily on the results of the SCOUT (Sibutramine Cardiovascular OUTcome Trial) study. This study researched about 10,000 patient, 6-year study requested by European regulatory authorities as a post-marketing commitment to evaluate cardiovascular safety in high-risk patients. Abbot maintains that most of these patients “had underlying cardiovascular disease and were not eligible to receive sibutramine under the current labeling“.
Patients should stop using Meridia (sibutramine) and consult their physician. Patients can also contact Abbott’s medical information line at: 1-866-257-8909.
Image by respres via FlickrGMAC Mortgage, JPMorgan Chase and Bank of America recently announced that they were suspending foreclosures after lawsuits exposed fraudulent practices. Other banks charged with illegalities include Wells Fargo, CitiMortgage, HSBC and National City.
Image by jimmywayne via Flickr A Floyd County, Ga., Superior Court jury recently awarded a verdict in favor of Loretta Terhune on behalf of her father as a result of the poor care her father received during the eight months he was a resident at Moran Lake Road Nursing Home in Rome, Ga.
Terhune sued Forum Medical, the company that owned and operated Moran Lake. Her father, Morris Ellison, was malnourished, dehydrated, denied medical care for a broken hip and ultimately died after what was supposed to be a temporary stay as he received post-operative rehabilitative care. He was otherwise in good health.
The facility’s owner, George Houser, a Harvard-educated attorney and member of the Georgia Bar, represented himself at trial, was held in contempt of court for repeated outbursts and filed an emergency bankruptcy motion in the middle of the proceedings. Judge Bryant Durham presided over the weeklong case that, once brought to the attention of the Federal Government, resulted in an indictment against Houser for corruption and misuse of Medicare/Medicaid funds.
Co-lead counsel for the plaintiff was Mike Prieto of Perrotta, Cahn & Prieto, and Stephen Lowry of Harris Penn Lowry. The team walked the jury through compelling evidence of deplorable conditions, underpaid workers, understaffed and underfunded facilities as well as outright neglect and abuse of the elderly that incensed the jury.
“We were able to prove that Mr. Houser, because of his corruption and greed, systematically drained his nursing facilities of essential funds for patient care, leaving the residents and employees to deal with feces-covered walls, no hot water, no food, no clean linens or adult diapers, no medicine nor proper medical equipment – all while enriching himself by using the nursing home account as his own ‘personal banking account,’” said Stephen Lowry of Harris Penn Lowry.
“This verdict made me very proud to be from Rome,” said Mike Prieto of Perrotta, Cahn & Prieto. “Rome is a medical community that takes great pride in their facilities and the quality of care available to all its citizens. This jury sent a message to George Houser, and to any one else who attempts to get rich by providing substandard care to the elderly, that this type of behavior will not be tolerated in this community or in the State of Georgia.”
After the verdict was read, Houser was handcuffed and escorted by the Sheriff’s Deputy to serve 48 hours in jail as a result of being in contempt of court.
Terhune, who had a very close and loving relationship with her father, said, “This was never about the money. I wanted justice for my daddy and to make sure Mr. Houser didn’t have a chance to do this to someone else. It isn’t right.”
Image by StevenM_61 via Flickrhttp://floridacivpro.com/rules/2009/10/1201-complex-litigation.php(a) Complex Litigation Defined. At any time after all defendants have been served, and an appearance has been entered in response to the complaint by each party or a default entered, any party, or the court on its own motion, may move to declare an action complex. However, any party may move to designate an action complex before all defendants have been served subject to a showing to the court why service has not been made on all defendants. The court shall convene a hearing to determine whether the action requires the use of complex litigation procedures and enter an order within 10 days of the conclusion of the hearing.
(1) A “complex action” is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the action, keep costs reasonable, or promote judicial efficiency.
(2) In deciding whether an action is complex, the court must consider whether the action is likely to involve:
(A) numerous pretrial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve;(B) management of a large number of separately represented parties;
(C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;
(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;
(E) substantial time required to complete the trial;
(F) management at trial of a large number of experts, witnesses, attorneys, or exhibits;
(G) substantial post-judgment judicial supervision; and
(H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.
(3) If all of the parties, pro se or through counsel, sign and file with the clerk of the court a written stipulation to the fact that an action is complex and identifying the factors in (2)(A) through (2)(H) above that apply, the court shall enter an order designating the action as complex without a hearing.
(b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within 60 days from the date of the order declaring the action complex.
(1) At least 20 days prior to the date of the initial case management conference, attorneys for the parties as well as any parties appearing pro se shall confer and prepare a joint statement, which shall be filed with the clerk of the court no later than 14 days before the conference, outlining a discovery plan and stating:
(A) a brief factual statement of the action, which includes the claims and defenses;(B) a brief statement on the theory of damages by any party seeking affirmative relief;
(C) the likelihood of settlement;
(D) the likelihood of appearance in the action of additional parties and identification of any non-parties to whom any of the parties will seek to allocate fault;
(E) the proposed limits on the time: (i) to join other parties and to amend the pleadings, (ii) to file and hear motions, (iii) to identify any non-parties whose identity is known, or otherwise describe as specifically as practicable any non-parties whose identity is not known, (iv) to disclose expert witnesses, and (v) to complete discovery;
(F) the names of the attorneys responsible for handling the action;
(G) the necessity for a protective order to facilitate discovery;
(H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment;
(I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence;
(J) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, or mediation;
(K) a preliminary estimate of the time required for trial;
(L) requested date or dates for conferences before trial, a final pretrial conference, and trial;
(M) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant;
(N) number of experts and fields of expertise; and
(O) any other information that might be helpful to the court in setting further conferences and the trial date.
(2) Lead trial counsel and a client representative shall attend the initial case management conference.
(3) Notwithstanding rule 1.440, at the initial case management conference, the court will set the trial date or dates no sooner than 6 months and no later than 24 months from the date of the conference unless good cause is shown for an earlier or later setting. The trial date or dates shall be on a docket having sufficient time within which to try the action and, when feasible, for a date or dates certain. The trial date shall be set after consultation with counsel and in the presence of all clients or authorized client representatives. The court shall, no later than 2 months prior to the date scheduled for jury selection, arrange for a sufficient number of available jurors. Continuance of the trial of a complex action should rarely be granted and then only upon good cause shown.
(c) The Case Management Order. The case management order shall address each matter set forth under rule 1.200(a) and set the action for a pretrial conference and trial. The case management order also shall specify the following:
(1) Dates by which all parties shall name their expert witnesses and provide the expert information required by rule 1.280(b)(4). If a party has named an expert witness in a field in which any other parties have not identified experts, the other parties may name experts in that field within 30 days thereafter. No additional experts may be named unless good cause is shown.
(2) Not more than 10 days after the date set for naming experts, the parties shall meet and schedule dates for deposition of experts and all other witnesses not yet deposed. At the time of the meeting each party is responsible for having secured three confirmed dates for its expert witnesses. In the event the parties cannot agree on a discovery deposition schedule, the court, upon motion, shall set the schedule. Any party may file the completed discovery deposition schedule agreed upon or entered by the court. Once filed, the deposition dates in the schedule shall not be altered without consent of all parties or upon order of the court. Failure to comply with the discovery schedule may result in sanctions in accordance with rule 1.380.
(3) Dates by which all parties are to complete all other discovery.
(4) The court shall schedule periodic case management conferences and hearings on lengthy motions at reasonable intervals based on the particular needs of the action. The attorneys for the parties as well as any parties appearing pro se shall confer no later than 15 days prior to each case management conference or hearing. They shall notify the court at least 10 days prior to any case management conference or hearing if the parties stipulate that a case management conference or hearing time is unnecessary. Failure to timely notify the court that a case management conference or hearing time is unnecessary may result in sanctions.
(5) The case management order may include a briefing schedule setting forth a time period within which to file briefs or memoranda, responses, and reply briefs or memoranda, prior to the court considering such matters.
(6) A deadline for conducting alternative dispute resolution.
(d) Final Case Management Conference. The court shall schedule a final case management conference not less than 90 days prior to the date the case is set for trial. At least 10 days prior to the final case management conference the parties shall confer to prepare a case status report, which shall be filed with the clerk of the court either prior to or at the time of the final case management conference. The status report shall contain in separately numbered paragraphs:
(1) A list of all pending motions requiring action by the court and the date those motions are set for hearing.
(2) Any change regarding the estimated trial time.
(3) The names of the attorneys who will try the case.
(4) A list of the names and addresses of all non-expert witnesses (including impeachment and rebuttal witnesses) intended to be called at trial. However, impeachment or rebuttal witnesses not identified in the case status report may be allowed to testify if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared.
(5) A list of all exhibits intended to be offered at trial.
(6) Certification that copies of witness and exhibit lists will be filed with the clerk of the court at least 48 hours prior to the date and time of the final case management conference.
(7) A deadline for the filing of amended lists of witnesses and exhibits, which amendments shall be allowed only upon motion and for good cause shown.
(8) Any other matters which could impact the timely and effective trial of the action.
Image via WikipediaThe FDA has approved the injectable nerve agent drug pralidoxime chloride (Protopam Chloride) for use in pediatric patients. "We know this drug has been widely used for many years to treat poisoning in pediatric patients in emergency situations," said Russell Katz, MD, director of the Division of Neurology Products at the FDA's Center for Drug Evaluation and Research, in a prepared statement. "Improving the drug's label with new dosing information for children will give healthcare professionals better guidance on how to use the drug safely and effectively."
Source:http://www.medpagetoday.com/PublicHealthPolicy/FDAGeneral/22115
Image by Getty Images via @daylifeOf the 354 million acute care visits patients made to healthcare providers over a three-year period, more than one-quarter took place in emergency rooms, representing a shift from the old days when general practitioners were the main providers of acute care, a study found. A study was published in Health Affairs, and found that, in part because of office-based practitioners' busy schedules, patients are increasingly going to the hospital for treatment for illnesses such as fever and stomach pain -- ailments which used to be treated in a doctor's office.
And fewer than half of all acute care visits involve the patient's personal physician, wrote the study authors, who were led by Stephen Pitts, MD, associate professor of emergency medicine at Emory University in Atlanta.
"Americans' access to primary care is in decline," the authors concluded.The authors laid out a number of possible reasons for the shift to the emergency room, including office-based primary care doctors not having enough time or space to keep up with patient demand, and fear of litigation driving primary care physicians to refer patients to a hospital.
Stomach and abdominal pain, chest pain, and fever topped the list for most common reasons for visiting the emergency department, while cough, sore throat, skin rash, and earache were the most common reasons for visiting a family physician's office.
The study also broke down which types of doctors treated acute care patients and found:
"Apparently, primary care physicians provide much less acute care than in the past," the authors concluded, adding that using emergency rooms for problems a primary care provider could treat is "not desirable from a societal perspective."
"Too often, emergency care is disconnected from patients' ongoing healthcare needs," the authors wrote. "Lack of shared health information promotes duplicative testing, hinders follow-up, and increases the risk of medical errors."
The authors laid out a number of possible reasons for the shift to the emergency room, including office-based primary care doctors not having enough time or space to keep up with patient demand, and fear of litigation driving primary care physicians to refer patients to a hospital.
Image via WikipediaTraffic deaths have plummeted across the United States to levels not seen in more than a half-century, spurred by technology, safety-conscious drivers and tougher enforcement of drunken driving laws. The Transportation Department said Thursday that traffic deaths fell 9.7 percent in 2009 to 33,808, the lowest number since 1950. In 2008, an estimated 37,423 people died on the highways.
Government and auto safety experts attributed the improvement to more people buckling up, side air bags and anti-rollover technology in more vehicles and a focus in many states on curbing drinking and driving. Economic conditions were also a factor.
Transportation Secretary Ray LaHood called the new data "a landmark achievement for public health and safety" but cautioned that too many people are killed on the road each year. "While we've come a long way," he said, "we have a long distance yet to travel."
Forty-one states, the District of Columbia and Puerto Rico saw reductions in highway fatalities, led by Florida with 422 fewer deaths and Texas, down 405.
The rate of deaths per 100 million miles traveled also dropped to a record low. It fell to 1.13 deaths per 100 million miles in 2009, compared with 1.26 the year before.
Year-to-year declines in highway deaths have occurred in previous economic downturns, when fewer people are out on the road. Traffic deaths decreased in the early 1980s and early 1990s when difficult economic conditions led many drivers to cut back on discretionary travel.
Last year's reduction in fatalities came even as the estimated number of miles traveled by motorists in 2009 increased 0.2 percent over 2008 levels.
Barbara Harsha, executive director for the Governors Highway Safety Association, said the new data was "particularly encouraging given that estimated vehicle miles traveled actually increased slightly in 2009, thus exposing the public to greater risk on our roadways."
LaHood said the weak economy was a contributing factor as many Americans chose not to go out to bars and restaurants after work or on the weekend.
But he said many motorists are more safety conscious behind the wheel. About 85 percent of Americans wear seat belts while benefiting from safety advances found in today's cars and trucks.
Side air bags that protect the head and midsection are becoming standard equipment on many new vehicles. Electronic stability control, which helps motorists avoid rollover crashes, is more common on new cars and trucks, while some luxury models have lane departure warnings and other safety features.
Dave McCurdy, president and CEO of the Alliance of Automobile Manufacturers, which represents General Motors, Toyota, Ford and others, said the improvements were "the payoff from years of manufacturer-driven safety improvements, like antilock brakes and electronic stability control systems" along with efforts by law enforcement to keep the roads safe.
LaHood, a former Illinois congressman, has also sought to crack down on distracted driving, urging states to adopt stringent laws against sending text messages from behind the wheel, as well as other distractions.
The annual highway safety report also found:
—Motorcycle fatalities broke a string of 11 years of annual increases, falling by 16 percent, from 5,312 in 2008 to 4,462 in 2009.
—The number of people injured in motor vehicle crashes fell for a 10th consecutive year. An estimated 2.2 million people were injured in 2009, a 5.5 percent decline from 2.3 million in 2008.
—Alcohol-impaired driving deaths declined 7.4 percent in 2009 to 10,839 deaths, compared with 11,711 in 2008. Alcohol-impaired fatalities fell in 33 states and Puerto Rico.
A comment from a GTLA member on this news:
This is the direct result of two things – first the work of Senator Abraham Ribicoff and Ralph Nader which led to adoption of federal motor vehicle safety standards, and second the work of plaintiffs’ lawyers and courts, who fashioned legal relief for those injured by defective vehicles. Those two things led directly to the adoption by automakers of safety modifications which save lives.
The auto industry (Saab and Volvo excepted) resisted even mentioning safety in their marketing campaigns until ’87 or ’88, when Iacocca of Chrysler broke ranks and started advertising “safety” as a selling point. Adoption of safer technologies accelerated from that point on
