On Balance: Life & Law

For my husband, Chris Gragg, and me, that perspective often comes from spending time outdoors in the foothills of East Tennessee. We enjoy exploring the Smoky Mountains, working outside, and caring for our koi fish and mini donkeys. There's something remarkably calming about watching koi glide through the water, hearing a waterfall in the background, or simply enjoying a quiet evening on the porch after a busy week.

Those moments are a reminder that solving problems, whether in life or in the law, rarely happens by rushing. It happens by observing carefully, understanding the facts, and approaching each situation with patience and purpose.

I bring that same philosophy to my law practice. Every client has a unique story, every legal matter deserves thoughtful attention, and every solution begins with listening.

Thank you for visiting. I hope you'll stop by from time to time as I share thoughts on the law, technology, and occasionally a glimpse of life beyond the office.

Navigating Mineral Interest Valuation Pathways for Medicaid Long-Term Care Applications

You can also see this article written by Shannon Smith Gragg published in the May 2024 issue of the Oklahoma Bar Journal by clicking this link --

https://www.okbar.org/barjournal/may-2024/navigating-mineral-interest-valuation-pathways-for-medicaid-long-term-care-applications/

Applying for Medicaid benefits for long term care is a complex and time-sensitive endeavor. Families often face special challenges in assisting loved ones during difficult times, especially when medical considerations contribute to stress and urgency. Whether records are well-maintained or not, even organized files can require supplementation when applying for Medicaid. This is where a guide or 'roadmap' can be very helpful. It not only explains and eases the frustrations applicants and their families might experience, but it also streamlines the application process, increasing the likelihood of initial approval. It can also help ensure that tasks associated with the mineral interests valuation process are accomplished in an efficient and effective manner, making it more manageable for everyone involved. Even with such a roadmap, unexpected speed bumps can pop up along the way. The roadmap set forth herein will address both guideposts and speed bumps, an understanding of which can be helpful in getting clients from application to valuation while reducing friction and making the journey less stressful along the way.

For Medicaid eligibility, all mineral interests are considered to have value. Mineral interests owned separately from real property are attributed a resource value as part of the Medicaid eligibility determination process in Oklahoma, a fact that sometimes surprises applicants, especially those who own only non-producing or open (unleased) interests. On this path, it is helpful to assist applicants in developing an understanding why all mineral interests whether leased, royalty-producing, or open (unleased) have value and why appropriate documentation must be submitted for each interest owned.

Applicants may provide appraisal valuations from established professionals knowledgeable in the area or may request that Oklahoma Human Services provide a resource valuation based on submittal of documentation of mineral interest ownership information. For the purposes of providing such valuations, Oklahoma Human Services addresses three basic categories of mineral interests and applies a set formula for valuing each. Being aware of these valuation formulas and potential resource exclusion can make the valuations process much easier to navigate. Beginning with exclusions and proceeding through specifics for each valuation category, guideposts, pathways, and speed bumps follow.

Guidepost 1 – Exclusion Of Mineral Interests As A Resource

Exclusions of mineral interest resource value fall into two basic categories: (1) exclusion associated with location and (2) exclusion associated with status.

Exclusions Associated With Location

Home Property Exclusion

In the home property exclusion, as addressed in Oklahoma Administrative Code 317:35-5-41.1 (a) (9), mineral rights associated with the home property are considered along with the surface rights and are excluded as a separate resource. Their valuation is concurrent with that of the home property such that if the home property is valued as a resource, the value of the mineral interest is already considered included, and if the home property is excluded as a resource so is the mineral interest.

Tribal Lands Exclusion

In the tribal lands exclusion, in accordance with OAC 317:35-5-41.12(c) (3), for any individual (and spouse, if any) who is of Indian descent from a federally recognized Indian tribe, any interest in land which is held in trust by the United States for an individual Indian or tribe, or which is held by an individual Indian or tribe and which can only be sold, transferred, or otherwise disposed of with the approval of other individuals, his or her tribe, or an agency of the federal government, shall be excluded from resource determinations.

Exclusions Associated With Status

Royalty-Producing Mineral Interest Exclusion (Up to $6,000)

In the 6%/$6,000 royalty-producing interest exclusion, up to $6,000 resource value of the mineral interest is excluded from consideration. As set forth in Oklahoma Administrative Code 317:35-5-41.1. (b) (1), mineral rights not associated with home property which are income producing are considered in the same way as income producing property. Which leads us to OAC 317:35-5-41.12 (c) (3) for treatment of mineral rights as non-trade or non-business property designating that “up to six-thousand dollars ($6,000) of the equity value is excluded as a resource if the property produces a net annual return equal to at least six percent (6%) of the excluded equity, and any portion of the property's equity value in excess of six-thousand dollars ($6,000) is a countable resource.” (*This exclusion applies to royalty-producing mineral interests, but not mineral interests which are leased and have never been royalty-producing.)

Legal Impediment Exclusion

In the legal impediment exclusion, only those resources available for current use or those which the member can convert for current use (no legal impediment involved) are considered as countable resources. As set out in OAC 317:35-5-41 (6) (b) legal impediments include, but are not limited to, clearing an estate, probate, petition to sell, or appointment of legal guardian and present subject assets to exclusion from resource calculations, with the caveat that “Generally, a resource is considered unavailable if there is a legal impediment to overcome. However, the member must agree to pursue all reasonable steps to initiate legal action within thirty (30) days. While the legal action is in process, the resource is considered unavailable.” Especially with regard to mineral interests in which ownership may be extensively divided into very small interests over the years, it is important to note that if a determination is made and documented that the cost of making a resource available exceeds the gain, the member will not be required to pursue action to make it available.

Guidepost 2 – External Professional Mineral Interest Valuation

Applicants have the opportunity to present mineral interest valuations from professionals knowledgeable in the area pursuant to 317:35-5-41.1 (b) (1) which designates not only, “Since evaluation and salability of mineral rights fluctuate, the establishment of the value of mineral rights are established based on the opinion of collateral sources.” but also “Actual offers of purchase are used when established as a legitimate offer through a collateral source.”

When considering this path for valuation, it is also important to weigh the investment of client funds in a paid valuation from an external professional against the anticipated attributable resource value expected in accordance with Oklahoma Human Services current formulas for calculation.

Guidepost 3 -- Agency Mineral Interest Valuation

When an applicant does not supply an external mineral interest valuation, they may submit mineral interest ownership documentation so that Oklahoma Human Services may provide them a valuation. These valuations employ formulas for calculating the fair market value of mineral interests in three categories, or for the purposes of this article “pathways.”. Valuations take into consideration not only the interests’ current production but also future potential for production. Because of this, open (or unleased) mineral interests that have never produced are often attributed a higher resource value than some currently producing. This can be quite surprising to applicants, especially those who have held mineral interests for several decades with no offers of lease or purchase.

Pathway 1 -- The Royalty-Producing Mineral Interest Valuation Formula

Fair Market Value = (Gross Royalties/12) x 36

For example, a single mineral interest wholly owned by an individual applicant documented by 1099 to be producing royalties of $1,200 in the most recent year would be viewed as having a fair market value of $3,600 ((Gross Royalties/12) x 36 = fair market value), but would result in attributable resource value of $0 due to the 6%/$6,000 exclusion for non-business income-producing property.

On the other hand, a single mineral interest wholly owned by an individual applicant documented by 1099 to be producing royalties of $4,000 in the most recent year would be viewed as having a fair market value of $12,000 and an attributable resource value of $6,000 (assuming no other non-business income-producing property contributed countable income toward the $6,000 exclusion limit).

Important documentation for Pathway 1 -- Documentation that contains the legal description of the mineral interest, the 1099 issued by the oil company in the year preceding the client’s application or the year preceding the annual review, and documentation of any royalties currently held in suspense.

Pathway 2 -- The Open (Unleased) Mineral Interest Valuation Formula

Fair Market Value = (most common lease bonus per acre x number of net mineral acres)

On the other hand, for open (unleased) mineral interests the fair market value is determined by multiplying the number of net mineral acres and the most common lease bonus for the county as reported by the corresponding issue of the U.S. Lease Price Report. So, for example, a 40-net-mineral-acre interest that has never been leased in a county with a most common lease bonus of $1,200 would be evaluated to have a fair market value (and attributable resource value) of $48,000.

A similar never-leased mineral interest in another county, however, with a most common lease bonus of $25 per acre would be evaluated to have a fair market value (and attributable resource value) of $1,000.

For the calculation of fair market value of open mineral interests, providing accurate documentation of the number net mineral acres is especially important. It is not uncommon for mineral interests to be acquired through estate and familial distribution leading to divisions into smaller and smaller interests and for transfer documents to be silent regard to the number of net mineral acres being transferred. Locating and providing this information can require additional work but can prove worthwhile. For example, if the 40-acre mineral interest in the county with the $1,200 lease bonus was actually inherited by and divided equally among 10 heirs, this would reduce the number of net mineral acres to 4 each, and consequently reduce the applicant’s associated resource value to $4,800 rather than $48,000.

Important documentation for Pathway 2 -- Documentation that contains the legal description of the mineral interest, inclusive of the number of net mineral acres. *Presenting accurate information regarding the number of net mineral acres is especially important for accurate valuation in this type of interest.

Pathway 3 -- The Leased Mineral Interest Valuation Formula

Fair Market Value = (gross lease bonus x 1.5)

For leased mineral interests, as a general rule, the fair market valuation formula is the product of 1.5 times the most recent lease bonus. (The agency might retain the ability to exercise some discretion in contemplation of the occurrence of a zero-dollar lease bonus, though this has not been well established as of the writing of this article.) In general, a mineral interest wholly owned by an individual applicant most recently leased for $1,600 would be evaluated to have a fair market value (and attributable resource value) of $2,400.

The 6%/$6,000 resource value exclusion does not apply to mineral interests that are leased but have never paid royalties.

Important documentation for Pathway 3 -- Documentation that lists the legal description of the mineral interest and the 1099 issued by the oil company in the year the lease bonus was paid.

A Road Less Traveled -- The Life Estate Impact Valuation Formula

Fair Market Value = (full resource value x life estate decimal amount)

Notably, if an applicant owns only a life estate in a mineral interest, the evaluated fair market value is reduced by a specified formula by multiplying the fair market value of the mineral interest by the decimal amount listed for the age of the applicant in accordance with the State Medicaid Manual – Life Estate and Remainder Interest Chart pursuant to OAC 317:35-5-41.1 (b) (10) (A).

For example, if Mrs. Jones (age 78) owns only a life estate interest in an open mineral interest that would otherwise have a fair market value of $10,000 and the corresponding decimal amount for age 78 is .47049, the resulting resource value for this interest would be $4,704.90.

Additional Mapping For All Paths

Situations do sometimes occur in which valuations are submitted on behalf of applicants that are actually higher than what the agency determined resource value would have been. For this reason, reviewing current valuation standards and, if applicable, the relevant U.S. Lease Price Report can be of significant benefit to applicants. Additionally, collection and submission of associated documentation should be started as early as possible in case challenges in finding information, such as the number of net mineral acres, should arise.

Should an applicant disagree with an evaluated mineral interest resource value, they may submit an external valuation or additional documentation for review, or if the valuation negatively impacts their eligibility for benefits, request a fair hearing.

Avoiding Speed Bumps

* Written documentation of the legal description is necessary for each mineral interest (i.e., leases, deeds, wills, division orders). Copies are often obtainable from the county clerk or online at OKCountyRecords.com.

* Resource valuation is based on royalty production. So, even when there is no 1099 issued, if royalties were produced, documentation should be obtained and supplied.

* Royalty owners’ accounts can go into “suspense” if they fail to cash their checks, meaning the oil/gas company might stop sending the royalty checks. For example, if someone moves, checks may be marked “do not forward” preventing them from being delivered, even if a change of address has been filed with the postal service. A change of address is generally required to be submitted directly to the oil/gas company. Accounts may even have thousands of dollars in suspense that, if discovered, may be distributed to an applicant.

* Requests for information from oil/gas companies can be made via email, often with quick response. For easy reference refer to article LTC: Letter to Oil / Gas Company (https://fsquest.oucpm.org/2017/programs/long-term-care/letter-to-oil-gas-company-mineral-rights/).

* Communication with oil/gas companies is often most effective and efficient when done by email. A partial list of oil/gas company email addresses can be found at https://fsquest.oucpm.org/2017/programs/long-term-care/oil-company-contact-list/ .

* Oil/gas companies do respond to owner inquiries, but they often work with thousands of (or more) royalty owners. Sometimes it takes time, but almost always, a response should be obtainable. In unusual circumstances where a company is unreachable, contacting the Oklahoma Corporation Commission for additional information can often be helpful.

10 Steps to Protect Yourself in a Data Breach

by Shannon Smith Gragg, PLLC, Attorney at Law

Your Personal Information Has Been Compromised!

Now what? After a long day at work, you pull up to the mailbox, retrieve the mail, and notice an unusual envelope. Inside there is a notification that the local school or a former employer (with which you have had no association for several years) has had a data breach, and your personal private information has been compromised. They offer a year of free credit monitoring and identity theft protection. Does that solve the problem? What do you do next?

Is credit monitoring and identity theft protection a good idea? Yes. Does that solve the problem by itself? Hardly. Here are ten first steps you can take to help you on your way. These are certainly not exhaustive and not intended as legal advice, but will help get you started when you feel unsure what to do next. (1) First, if not specifically stated, find out exactly what data of yours was exposed. Such a letter or email is often intended to notify a large, sometimes diverse, group of people and might not provide the information necessary to evaluate and mitigate the specific risks to you individually. General information should be included in the letter and a form of contact should be provided. Submit your request for specific information in writing, via email or letter, and keep any response for your records. This will help you evaluate where to focus your efforts on preventing and/or curtailing resulting damage.

(2) Start a folder for keeping records related to the data breach. This may be hard copy or digital, but having records in one easily accessible location helps keep them organized and helps minimize time and effort necessary for dealing with the breach. Be sure to include documentation of your time and effort spent dealing with the breach, as you could eventually become entitled to compensation for the same. (3) Review your banking, credit card, and phone records for unauthorized charges or access. Even if information about these accounts was not directly compromised by the breach, any personal private information, particularly a social security number combined with a date of birth, can be a gateway to reverse engineering access to additional private information. (4) Review email for indications of attempted unauthorized access to online accounts. Be sure to notice emails that indicate a wrong password was entered, an attempt was made to change your password, or other changes or updates were made.

(5) Change your passwords, all of them. Yes, this is a pain, and time consuming, but data breaches frequently involve cyber criminals adept at reverse engineering access to online accounts by piecing together information from different sources. For example, a cybercriminal who gains access to an individual's name, address, date of birth, and social security number might be able to gain access to government records online through brute force hacking of the individual's passwords. This leads us to number six.

(6) Use difficult to hack passwords. Passwords that contain real words and easily guessed numbers, such as a child's name and a birth date, are easily hacked. Furthermore, passwords using real words are easily hacked by brute force password crackers (such as Hydra, for example).

(7) Be sure to enable two-factor authentication for verification for access to online accounts. Then test it. (8) Be thorough. Do not overlook smaller accounts. Sometimes targets with lower perceived value are easier to hack, but gain cyber criminals access to additional useful information. (9) Be vigilant. When does the threat of harm from such a breach end? It is difficult to say. Continue to be watchful for fraud involving your information. Be watchful for bills for medical care you did not receive, unusual financial inquires or accounts established in your name, unauthorized banking, credit card, or phone charges, and solicitation emails containing more than usual personally identifiable information. (10) Know your rights. While most institutions who become aware of a data breach will at a minimum offer credit monitoring and identity theft protection, victims of the data breach may also be entitled to compensation for losses incurred and time spent dealing with the breach.