New EEOC Lawsuit Challenges Orion Energy Systems Employee Benefit Program Under ADA

September 19, 2014

Employers using or considering using health risk assessments or other wellness programs should carefully monitor a new Equal Employment Opportunity Commission (EEOC) lawsuit, EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019 (E.D.Wis.), which is the first time the EEOC has sued an employer under the Americans With Disabilities Act (ADA) based on the employer’s wellness program.

Although the alleged facts in Orion reflect its practices might be much more aggressive than in common use by most employers, the principles argued by the EEOC in  Orion raise potential concerns for the growing number of employers relying on health risk assessment and other wellness programs to help manage health benefit costs, employee disabilities, and other concerns.

According the Kaiser Family Foundation, health risk assessments and other wellness program use is increasingly common.  The majority of employers reportedly now offer some sort of wellness program — 94 percent of employers with over 200 workers, and 63 percent of smaller ones.

Employers that use these arrangements generally believe their health risk assessment or other wellness benefit passes legal muster as long as it complies with standards established in final regulations amending the nondiscrimination requirements of the Health Insurance Portability Act (HIPAA). The sponsors of these arrangements often are unaware of or discount the likelihood that the EEOC might view these and other wellness benefit arrangements as violating the ADA prohibitions against medical inquiries that are not both job related and necessary to the job or other ADA disability discrimination prohibitions.

In Orion, the EEOC contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries.  When employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert.

The EEOC charges Orion violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called “wellness program,” which the EEOC charges was not voluntary, and then by firing the employee when she objected to the program.

The EEOC maintains that Orion’s wellness program violated the ADA as applied to Schobert.  Additionally, EEOC also charges Orion wrongfully retaliated against Schobert because of her good-faith objections to the wellness program. The EEOC further asserts that Orion interfered with Schobert’s exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries — which are not job-related — in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all.”

The Orion litigation reminds businesses of the advisability or properly designing and managing wellness programs to comply with applicable legal requirements.

Financial or other incentive and reward programs of course must be designed to comply with HIPAA’s nondiscrimination rules, the ADA and privacy rules.   Privacy requirements also can be a challenge under these laws unless information collected from screening and other wellness and disease management activities is carefully collected, routed and handled to comply with HIPAA, GINA and other privacy rules.  See, e.g,   EBSA Issues Guidance on Health PLan Wellness & Disease Management Programs Subject to HIPAA Nondiscrimination RulesADAAA Amendment Broader “Disability Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 RisksBusinesses Face Rising Disability Discrimination Enforcement Risks; EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act.

Employers and health plans also should review the existing preventive care coverage provided in their health plans to ensure compliance with expanded federal mandates enacted as part of the sweeping new federal health care reform law. See e.g., Affordable Care To Require Health Plans Cover Contraception & Other Women’s Health Procedures.

If you need assistance addressing the legal requirements of your wellness program or other workforce, employee benefit, compensation or risk management concern, contact the author of this update.  We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. TheCoalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.You also can access information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here.

About Author Cynthia Marcotte Stamer

If you need help reviewing or updating your health benefit program for compliance with ACA or other laws or with any other employment, employee benefit, compensation or internal controls matter, please contact the author of this article, attorney Cynthia Marcotte Stamer.

A 2011 inductee to the American College of Employee Benefits Council, immediate past-Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, the ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author,  Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers. plan administrators and other services providers,  and governments on health care, retirement, employment, insurance, and tax program design, administration, defense and policy.   Nationally and internationally known for her creative and highly pragmatic knowledge and work on health benefit and insurance programs, Ms. Stamer’s  experience includes extensive involvement in advising and representing these and other clients on ACA and other health care legislation, regulation, enforcement and administration.

Widely published on health benefit and other related matters, Ms. Stamer’s insights and articles have been published by the HealthLeaders, Modern Health Care, Managed Care Executive, the Bureau of National Affairs, Aspen Publishers, Business Insurance, Employee Benefit News, the Wall Street Journal, the American Bar Association, Aspen Publishers, World At Work, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others.

For additional information about Ms. Stamer and her experience, see www.CynthiaStamer.com.

About Project COPE: The Coalition On Patient Empowerment & Its  Coalition on Responsible Health Policy

Sharing and promoting the use of practical practices, tools, information and ideas that patients and their families, health care providers, employers, health plans, communities and policymakers can share and offer to help patients, their families and others in their care communities to understand and work together to better help the patients, their family and their professional and private care community plan for and manage these  needs is the purpose of Project COPE.

The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans.  The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up:  Speak up, step up and help bridge the gap when you or your organization can do so by extending yourself a little bit.  Speak up to help communicate and facilitate when you can.  Building health care neighborhoods filled with good neighbors throughout the community is the key.

The outcome of this latest health care reform push is only a small part of a continuing process.  Whether or not the Affordable Care Act makes financing care better or worse, the same challenges exist.  The real meaning of the enacted reforms will be determined largely by the shaping and implementation of regulations and enforcement actions which generally are conducted outside the public eye.  Americans individually and collectively clearly should monitor and continue to provide input through this critical time to help shape constructive rather than obstructive policy. Regardless of how the policy ultimately evolves, however, Americans, American businesses, and American communities still will need to roll up their sleeves and work to deal with the realities of dealing with ill, aging and disabled people and their families.  While the reimbursement and coverage map will change and new government mandates will confine providers, payers and patients, the practical needs and challenges of patients and families will be the same and confusion about the new configuration will create new challenges as patients, providers and payers work through the changes.

For Added Information and Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

For Help Or More Information

If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting

April 8, 2014

Health plans, their sponsoring employers and administrators face new challenges and responsibilities under a slew of regulations on the treatment of same-sex domestic partners issued by the Internal Revenue Service, Department of Labor and other federal government agencies since the Supreme Court ruled unconstitutional the Defense Against Marriage Act’s prohibition against the recognition of same-sex partnerships as marriage for purposes of federal law.

Attorney and industry thought leader Cynthia Marcotte Stamer will join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

The SPBA Spring Meeting scheduled to take place May 16-18 will cover a broad range of timely topics on health care reform and other issues and concerns for self-insured health plan administrators and their clients.

In addition to her April 17 DOMA presentation, Ms. Stamer also is scheduled to share her insights and experiences financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims.”

For additional details about the SPBA or its Spring Meeting, see www.spbatpa.org.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Stamer Speaks On “Action Steps When A Client Stops Funding Claims” at 2014 SPBA Spring Meeting

April 8, 2014

Health plans and their administrators face significant practical legal and operational challenges when the employer sponsoring the plan goes bankruptcy, has financial trouble or otherwise stops funding the plan.

Attorney, industry thought leader and Solutions Law Press, Inc. Publisher and Editor, Cynthia Marcotte Stamer will join a panel of distinguished attorneys discussing financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims” on Friday, April 18, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

The SPBA Spring Meeting scheduled to take place May 16-18 will cover a broad range of timely topics on health care reform and other issues and concerns for self-insured health plan administrators and their clients.

In addition to her April 18 presentation, Ms. Stamer also is scheduled to join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


IRS Gives Ex Pat Plans Limited Exemption From ACA Reporting Rule

April 3, 2014

The Internal Revenue Service (IRS) is giving U.S. businesses with workers working oversees (expatriates) additional limited temporary relief from certain mandates of the Patient Protection and Affordable Care Act (ACA).  While this relief will be welcome for many multinational employers, these employers and their health plans and insurers need to use caution not to overestimate this relief.  Employers and administrators of health plans covering expatriates generally  generally remain obligated by U.S. law to design and administer their group health plans to properly comply with applicable U.S. mandates and tax rules..

The temporary relief for employers and health plans covering expatriate announced by the IRS today (April 3, 2014) scheduled to be published in Internal Revenue Bulletin 2014-16 on April 14, 2014,  Notice 2014-24,  provides a temporary safe harbor for an entity that reports expatriate health insurance plans on its Supplemental Health Care Exhibit (SHCE).  For the 2014 and 2015 fee years, Notice 2014-24 will allow such an entity to exclude 50% of its direct premiums written for expatriate plans in reporting total direct premiums written to the IRS for purposes of determining its ACA § 9010 Health Insurance Providers Fee.

This new guidance supplements guidance previously published guidance in“FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”).  The Expat FAQ states these health plans generally are not required to comply with the ACA requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the IRS (collectively, the Agencies) on March 8, 2013.  The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.”  Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens.  For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax.  Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Employers also should be careful to ensure that the guidance applies to their program.  Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.”  For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as  “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States.  Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ.  Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months.  Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws.  When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns.

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates.  Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances.

The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies.  With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending.  Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.   ©2014 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Insured “Expatriate Plans” Get Temporary Reprieve From Affordable Care Act Compliance Thru 2015 If Meet Other Health Plan Mandates

March 13, 2013

Cynthia Marcotte Stamer:

U.S. businesses with workers working oversees and foreign businesses sending employees to work in the U.S. often overlook the need to design their expatriate health benefit and certain other welfare plans and employment practices to properly comply with applicable U.S. mandates.

“Expatriate health plans” within the meaning of the “FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”) are not required to comply the Affordable Care Act (ACA) requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Agencies) on March 8, 2013.

ACA & Other Federal Health Plan Rules Generally Apply To Expat Coverage

The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.”  Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens.  For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

 Businesses should design and administer their health plans in accordance with all relevant federal health benefit regulations unless qualification for their plan for exemption is specifically verified.

Temporary Transitional ACA Relief For “Expatriate Health Plans”

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax.  Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Definition of “Expatriate Health Plan” Limited To Certain Insured Health Plans

Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.”  For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as  “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.   

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States.  Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ.  Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months.  Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Agencies Invite Public Input On ACA Application To Expatriate Health Plans

The Agencies request comments on and information about the unique challenges that expatriate health plans may face in complying with provisions of the Affordable Care Act, including information about which particular types of plans face these challenges and with respect to which particular provisions of the Affordable Care Act.  In anticipation of further input and analysis, the Expat FAQ speculates that potential challenges that could complicate Affordable Care Act compliance for an expatriate health plan might include:

  • Reconciling and coordinating the multiple regulatory regimes that apply to expatriate health plans might make it impossible or impracticable to comply with all the relevant rules at least in the near term;
  • Independent review organizations may not exist abroad;
  • It may be difficult for certain preventive services to be provided, or even be identified as preventive, when services are provided outside the United States by clinical providers that use different code sets and medical terminology to identify services.
  • Expatriate issuers may face challenges and delays in communicating with enrollees living abroad.
  • Due to the complex nature of these plans, standardized benefits disclosures can be difficult for issuers to produce.
  • Expatriate health plans may require additional regulatory approvals from foreign governments.
  • In some circumstances, it is possible that domestic and foreign law requirements conflict.

The Expat FAQ invites employers, insurers and other interested persons to provide input to the Agencies by sending their comments by May 8, 2013 to e.ohpsca-expat.ebsa@dol.gov.  Sponsors, insurers and administrators should share their concerns and insights in response to this invitation.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws.  When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns. 

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates.  Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances. 

 The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies.  With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending.  Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data  other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health matters,  Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.  Ms. Stamer has more than 25 years experience advising these and other clients about these matters  and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns. 

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters.   She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at http://www.CynthiaStamer.com.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at http://www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. 

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.   ©2013 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

Originally posted on :

“Expatriate health plans” within the meaning of the “FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”) are not required to comply the Affordable Care Act (ACA) requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Agencies) on March 8, 2013.

ACA & Other Federal Health Plan Rules Generally Apply To Expat Coverage

The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally…

View original 2,596 more words


Catch Up On Health Reform & Other Key Employee Benefits & Insurance Issues Emerging Issues and Litigation Relating to Life, Health, Disability and ERISA Symposium In Ft. Lauderdale

December 7, 2012

Cynthia Marcotte Stamer will be one of the featured panelists discussing “Implications of PPACA” on January 18, 2013 at the American Bar Association Tort Trial & Insurance Practice Section’s (TIPS) 39th Annual TIPS Midwinter Symposium on Insurance and Employee Benefits “Emerging Issues and Litigation Relating to Life, Health, Disability and ERISA” in Fort Lauderdale.

The “Implications on PPACA” program scheduled at 3:30 p.m. on January 18, 2012 is one of many content-rich series of programs on employee benefit and insurance issues that leading practitioners will lead during the Symposium W Hotel Fort Lauderdale in Fort Lauderdale, FL on January 17-19, 2013.  To register, review the full agenda or get additional information about the Symposium, see here.

About Ms. Stamer

Managing Editor of Solutions Law Press, Inc. and a noted Texas-based employee benefits and employment lawyer with extensive involvement in the leadership of the ABA and other professional organizations involved in employee benefits, health care and workforce matters, is nationally and internationally known for her knowledgeable and creative leadership and work as an attorney, consultant, policy advocate, speaker and author helping businesses, governments, and communities on health and other insurance and employee benefits, patient education and empowerment, wellness and disease management, and other programs, policies, and processes.  For more than 24 years, Ms. Stamer’s legal practice has focused on advising and representing employers, insurers, health care providers, community leaders and governments about health care and employee benefits policy and process improvement, quality, performance management, education, compliance, communications, risk management, reimbursement and finance, and other related matters.  In addition to her legal practice, Stamer also extensively consults and provides leadership to a broad range of clients, professional and civic organizations, and others on strategies for improving the health care system and the ability of health care providers, payers, employers, community organizations, government agencies to promote the ability of patients and their families to access cost-effective, quality, affordable health care and other resource needs.  She also has worked extensively with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters.

In addition to her service with TIPS, Ms. Stamer also is active in the leadership of a broad range of other professional and civil organizations. For instance, Ms. Stamer presently serves as Executive Director of Project COPE, the Coalition on Patient Empowerment and the Coalition for Responsible Healthcare Policy; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its representative to the ABA Joint Committee on Employee Benefits and Vice Chair of its Welfare Benefits Committee; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; and as the Gulf Coast TEGE Council TE Committee Coordinator.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association; on many seminar faculties and in many other professional and civic leadership and volunteer roles. 

Author of the hundreds of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. Nationally known for her work on health care reform and related matters, Ms. Stamer also regularly conducts training and speaks on these and other  management, compliance and public policy concerns.  For more information about Ms. Stamer, upcoming training, publications or other materials or events, see here  or contact Ms. Stamer directly via email here or (469) 767-8872.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

©2012 Cynthia Marcotte Stamer, P.C. All rights reserved.


New OCR HIPAA De-Identification Guidance Among Developments Covered In 12/12 HIPAA Update Web Workshop

November 27, 2012

Get Up To Date On Details of New De-Identification Guidance & Other HIPAA Developments By Participating In 12/12 HIPAA Update Web Workshop

Health care providers, health plans, health care clearinghouses (covered entities) and their business associates and leadership should check and update their policies and practices for the de-identification of protected health information (PHI) in light of newly-released Guidance Regarding Methods for De-identification of Protected Health Information in Accordance With the Health Insurance Portability and Accountablity Act (HIPAA) Privacy Rule (Guidance) released by the Department of Health & Human Services (HHS) Office of Civil Rights yesterday (November 26, 2012). 

Solutions Law Press, Inc. will host a one-hour, online HIPAA Update Workshop on the Guidance and other recent regulatory and enforcement developments under HIPAA for covered entities and their business associates on Wednesday, December 12 beginning at Noon Central Time. To register, see here.

PHI collected by health care providers, health plans, their management, sponsors, and vendors often includes a wealth of information valuable for use for functions unrelated to the HIPAA-covered functions and activities that leads covered entities or their business associates to collect or keep this data.  While it might be tempting to repurpose this information for business planning and marketing purposes, covered entities and their business partners or associates frequently assume that covered entities and others that they deal with must take proper steps to that no PHI is used, accessed, disclosed or shared unless that action is allowed under the Privacy Rules, properly de-identified, or both.

When planning to rely upon the de-identification of PHI to engage in these activities,  parties planning to rely upon HIPAA’s exception for de-identified PHI will want to consult new guidance just released by OCR about the de-identification requirements before moving forward. Existing Privacy Rules and the Guidance recognize two alternative methods that covered entities and their business can use to properly de-identify PHI for purposes of the HIPAA Privacy Rule.

OCR published the Guidance to help covered entities to understand what qualifies as de-identification, the general process by which de-identified information is created, and the options available for performing de-identification for purposes of the HIPAA Privacy Rule.  The publication of this guidance was mandated as part of amendments to HIPAA enacted by Health Information Technology for Economic and Clinical Health (HITECH) Act included in the American Recovery and Reinvestment Act of 2009 (ARRA).  Section 13424(c) of the HITECH Act requires the HHS to issue guidance on how best to implement the requirements for the de-identification of health information contained in the Privacy Rule.  

De-identification & Its Rationale Under Privacy Rule

The Privacy Rule was designed to protect individually identifiable health information through permitting only certain uses and disclosures of PHI provided by the Rule, or as authorized by the individual subject of the information.  However, in recognition of the potential utility of health information even when it is not individually identifiable, §164.502(d) of the Privacy Rule permits a covered entity or its business associate to create information that is not individually identifiable by following the de-identification standard and implementation specifications in Privacy Rule §164.514(a)-(b).  These provisions allow the entity to use and disclose information that neither identifies nor provides a reasonable basis to identify an individual provided the Covered Entity can show that the PHI has been de-identified in accordance with either the Expert Determination Method or the Safe Harbor Method of the de-identification standard of the Privacy Rule and is not re-identified.  Regardless of the method used to de-identify PHI, the Privacy Rule does not restrict the use or disclosure of de-identified health information, as it is no longer considered PHI and is not re-identified.

Privacy Rule De-Identification Implementation Standards Permit Alternative Methods of De-identification

Section 164.514(a) of the HIPAA Privacy Rule provides the standard for de-identification of protected health information.  Under this standard, health information is not individually identifiable if it does not identify an individual and if the covered entity has no reasonable basis to believe it can be used to identify an individual. See Privacy Rule § 164.514.

Sections 164.514(b) and (c) of the Privacy Rule contain the implementation specifications that a covered entity must follow to meet the de-identification standard. As summarized in Figure 1, the Privacy Rule provides two methods by which health information can be designated as de-identified:

  • The formal determination by a qualified expert in accordance with the Privacy Rule (Expert Determination Method); or
  • The removal of specified individual identifiers as well as absence of actual knowledge by the covered entity that the remaining information could be used alone or in combination with other information to identify the individual (Safe Harbor Method).

In order for PHI to qualify as de-identified under the “Expert Determination Method, Privacy Rule § 164.514(b)(1) requires that a person with appropriate knowledge of and experience with generally accepted statistical and scientific principles and methods for rendering information not individually identifiable:

  • Applying such principles and methods, determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information; and
  • Documents the methods and results of the analysis that justify such determination.

Alternatively, Privacy Rule § 164.514(b)(2) provides that PHI will qualify as de-identified under the Safe Harbor Method if:

  • All of an extensive list of identifiers of the individual or of relatives, employers, or household members of the individual, are removed from the data; and
  • The covered entity does not have actual knowledge that the information could be used alone or in combination with other information to identify an individual who is a subject of the information.

As long as the data is not re-identified, the Guidance indicates that a covered entity may prove fulfillment of the de-identification standard of Privacy Rule §164.514(a) by showing satisfaction of all applicable requirements of either method.  Under the Privacy Rule, de-identified health information created following these methods is no longer protected by the Privacy Rule because it does not fall within the definition of PHI.  Of course, de-identification leads to information loss which may limit the usefulness of the resulting health information in certain circumstances. Consequently, covered entities may wish to select de-identification strategies that minimize such loss.

Both alternatives for de-identification under the Privacy Rule require that covered entities and their business associates decide whether and how to keep the option for re-identification of PHI slated for de-identification and where applicable, appropriately manage the re-identification opportunity and data to avoid violation of the Privacy Rule.

According to the Privacy Rule, if a covered entity or business associate successfully undertook an effort to identify the subject of de-identified information it maintained, the health information now related to a specific individual would again be protected by the Privacy Rule, as it would meet the definition of PHI.  Disclosure of a code or other means of record identification designed to enable coded or otherwise de-identified information to be re-identified is also considered a disclosure of PHI.  In this regard, Privacy Rule §164.514(c) specifies that if the covered entity assigns a code or other means of  record identification to allow information de-identified under this section to be re-identified by the covered entity, themeans of record identification is not derived from or related to information about the individual and is not otherwise capable of being translated so as to identify the individual; it can’t use elements of the protected PHI as the re-identification key,must safeguard the key, and can’t use or disclose the key or other re-identification tool for any other purpose.

Preparing For, Guiding & Documenting The De-identification Process For Defensibility

The Guidance stresses that importance of documentation for which values in health data correspond to PHI, as well as the systems that manage PHI and its risk of identification or re-identification in the de-identification process cannot be overstated. 

The Guidance provides guidance to help guide covered entities and their business associates through the steps and analysis of using the Expert Determination versus Safe Harbor Method.  A review of this Guidance makes clear that the design and administration of the de-identification process under either method requires careful and well-documented planning, analysis and implementation to fulfill and to keep the documentation that a covered entity or business associate might need to defend its decision to treat and use PHI as de-identified under the Privacy Rule against a potential audit or enforcement inquiry.  The Guidance also seeks to further illuminate the requirements for effective de-identification  through a series of questions and answers, supplemented by work flow and other charts, examples and other illustrations and tips on the proper use of each alternative Method and managing risks and the process associated with that Method. A Glossary of Terms also is shared.  The discussion in the Guidance makes clear that covered entities and their businesses associates using either Method to de-identify PHI should be prepared to make a number of judgments about which Method to use, whether and how to make arrangements for re-identification, and how to properly manage the process to meet the requirements of the implementation standard and manage re-identification or other risks.

Register For 12/12 HIPAA Update Web Workshop To Catch Up On De-Identification Guidance & Other HIPAA & Texas HIPAA Regulatory & Enforcement Developments

Training and compliance mandates applicable to covered entities and their business associates under the newly strengthened Texas HIPAA law and HIPAA’s Privacy and Breach Notification Rules make it more  important than ever that covered entities and their business associates get the timely training and other assistance needed  to properly comply with requirements for the protection of PHI under the new Guidance and other HIPAA and Texas  HIPAA mandates. 

To aid in this process,  Solutions Law Press, Inc. will host a  2012 HIPAA Update Web Workshop covering the new Guidance on de-identification and other regulatory and enforcement developments under HIPAA and the newly amended Texas HIPAA law on December 12, 2012 from 1:00 P.M.-2:00 P.M. Eastern | Noon – 1:00 P.M. Central | 11:00 A.M-Noon Mountain | 10:00A.M-11:00 A.M. Pacific Time.

Expanded health care privacy mandates of the Texas Medical Records Privacy Act that take effect September 1, 2012 and HIPAA regulations require covered entities and their business associates conduct training and take other steps to protect the privacy and security of PHI.

Complete HIPAA Training While You Catch Up On The Latest On HIPAA & Texas Medical Records Privacy Rules & Get Helpful Compliance And Risk Management Tips!

Health care providers, health plans, health care clearinghouses face new imperatives to strengthen their HIPAA and other procedures for handling protected health information and other sensitive information to manage expanding risks and responsibilities arising from evolving rules, expanding enforcement and oversight, and rising penalties and other liabilities. 

Expanded health care privacy mandates of the Texas Medical Records Privacy Act that take effect September 1, 2012 and HIPAA regulations require covered entities and their business associates conduct training and take other steps to protect the privacy and security of personal health information (PHI) and certain other information.

The $4.3 million HIPAA Civil Monetary Penalty and growing list of $1 million plus resolution payments announced by the Office of Civil Rights coupled with its commitment to investigate all large breaches reported under the HITECH Act Breach Notification Rule and other stepped up enforcement and newly initiated audit activities send a clear signal that HIPAA-covered entities and their business associates face significant exposures for failing to appropriately manage their HIPAA and other responsibilities when handling protected health information.  Meanwhile, Texas House Bill 300 has raised maximum state civil penalties for unlawful disclosures of Protected Health Information under the Texas Medical Records Privacy Act to from $5,000 to $1.5 million per year.  Meanwhile HITECH Act amendments to HIPAA require covered entities provide notification of certain breaches while Texas House Bill 300 adds its own specific requirements to provide notice of certain breaches of computerized data containing sensitive personal information.

With Texas House Bill 300 expanding covered entities responsibilities and liabilities and OCR issuing new regulations and other guidance to implement amendments to the HIPAA Privacy & Security Standards and implement and enforce the HITECH Act Breach Notification Rule, health care providers, health plans and insurers, their brokers, third-party administrators, and other covered entities, as well as their business associates and employer and union clients must review and tighten their policies, practices, business associate and other contracts, and enforcement to manage HIPAA and other compliance and manage risks arising from the access, collection, use, protection and disclosure of PHI to meet expanding mandates and to guard against growing liability exposures under HIPAA and other federal and state laws. 

Solutions Law Press, Inc. invites you to catch up on the latest on these and other key HIPAA requirements and enforcement and learn tips for managing risks and liabilities by participating in the “HIPAA Update Workshop” on Wednesday, December 12, 2012 via WebEx for a registration fee of $125.00. 

Pre-approved for various types of continuing and professional education credit, the December 12, 2012 HIPAA Update Workshop will brief participants on the De-Identification Guidance as well as the latest on other regulatory and enforcement guidance under the HIPAA Privacy, Security and Breach Notification rules and guidance and share compliance and risk management lessons emerging from recent OCR enforcement and audit activities and other selected federal and state litigation and enforcement actions impacting the handling of protected health information.  Among other things, the workshop will cover:

  • The De-Identification Guidance just released by OCR on November 26, 2012;
  • The latest HIPAA Privacy, Security & Breach Notification Guidance, Audits & Enforcement
  • Highlights Texas House Bill’s Amendments To Texas Medical Records Privacy Law That Took Effect September 1, 2012
  • Post HITECH Act Heightened Liability Risks:  Audits, Civil Penalties, Criminal Penalties & State Lawsuits
  • Expansion of HIPAA Responsibilities & Liabilities To Business Associates & What Covered Entities & Business Associates Should Do In Response
  • HIPAA Data Breach Notification Requirements
  • Practical Challenges & Strategies For Managing These Responsibilities
  • Tips For Coordinating HIPAA & Other Federal & State Medical Privacy, Financial Information, Identity Theft & Date Security Compliance and Risk Management
  • Practical Strategies For Monitoring & Responding To New Requirements & Changing Rules
  • Participant Questions

About The Speaker

The workshop will be conducted by attorney Cynthia Marcotte Stamer.  A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, North Texas Health Care Compliance Professionals Association Vice-President and Board Certified in Labor & Employment Law, attorney  Cynthia Marcotte Stamer has 25 years experience advising and representing private and public health care providers, employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on privacy and data security, health care, health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker, Ms. Stamer has worked extensively with heath care providers, health plans and other payers, health and insurance IT and data systems, and others on HIPAA and other privacy and data security concerns.  She served as the scrivener for the ABA JCEB Agency Meetings with the Office of Civil Rights on HIPAA Privacy for the past two years.  She presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com) and Employee Benefit News, and various other publications.  A primary drafter of the Bolivian Social Security privatization law with extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on HIPAA and other privacy and data security risks and requirements as well as a broad range of other health,  employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with OCR and other HHS agencies, as well as the Departments of Labor, Treasury, Federal Trade Commission, HUD and Justice, Congress and state legislatures, and various state attorneys general, insurance, labor, worker’s compensation, medical licensure and disciplinary and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training on HIPAA and other privacy, health care, employee benefits, human resources, insurance and related topics for the ABA, Aspen Publishers, the Bureau of National Affairs (BNA), SHRM, World At Work, Government Institutes, Inc., the Society of Professional Benefits Administrators and many other organizations. Her insights on privacy and other matters are quoted in Modern Healthcare, HealthLeaders, Benefits, Caring for the Elderly, The Wall Street Journal and many other publications.  She also regularly serves on the faculty and planning committees of a multitude of symposium and other educational programs.  For more details about Ms. Stamer’s services, experience, presentations, publications, and other credentials or to ask about arranging counseling, training or presentations or other services by Ms. Stamer, see www.CynthiaStamer.com.

Registration

The Registration Fee is $125.00 per person.  Registration Fee Discounts available for groups of three or more. Pre-payment required via website registration required via website PayPal.  No checks or cash accepted.  Persons not registered at least 48 hours in advance will only participate subject to system and space availability.

 Continuing Education Credit

The HIPAA Update Workshop is approved to be offered for general certification credit by the State Bar of  Texas, Texas Department of Insurance, HRCI and WorldAtWork education credit  for the time period offered subject to fulfillment all applicable accrediting agency requirements, completion of required procedures.  Note that the applicable credentialing agency retain the final authority to determine whether an individual qualifies to receive requested continuing education credit.  Neither Solutions Law Press, Inc., the speaker or any of their related parties guarantees the approval of credit for any individual or has any liability for any denial of credit.  Special fees or other conditions may apply.  CANCELLATION   & REFUND POLICY:  In order to receive credit, cancellation (either fax or mail) must be received at least 48 hours in advance of the meeting and are subject to a $10.00 refund processing fee.  Refunds will be made within 60 days of receipt of written cancellation notice.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides business and management information, tools and solutions, training and education, services and support to help organizations and their leaders promote effective management of legal and operational performance, regulatory compliance and risk management, data and information protection and risk management and other key management objectives.  Solutions Law Press, Inc.™ also conducts and assist businesses and associations to design, present and conduct customized programs and training targeted to their specific audiences and needs.  For additional information about upcoming programs, to explore becoming a presenting sponsor for an upcoming event, e-mail your request to info@Solutionslawpress.com   These programs, publications and other resources are provided only for general informational and educational purposes. Neither the distribution or presentation of these programs and materials to any party nor any statement or information provided in or in connection with this communication, the program or associated materials are intended to or shall be construed as establishing an attorney-client relationship,  to constitute legal advice or provide any assurance or expectation from Solutions Law Press, Inc., the presenter or any related parties. If you or someone else you know would like to receive future Alerts or other information about developments, publications or programs or other updates, send your request to info@solutionslawpress.com.  If you would prefer not to receive communications from Solutions Law Press, Inc. send an e-mail with “Solutions Law Press Unsubscribe” in the Subject to support@solutionslawyer.net.  CIRCULAR 230 NOTICE: The following disclaimer is included to comply with and in response to U.S. Treasury Department Circular 230 Regulations.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN. If you are an individual with a disability who requires accommodation to participate, please let us know at the time of your registration so that we may consider your request.

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