Review & Update HR & Benefit Practices For DOL Proposed Change In FMLA Regs, Other Rules Treating Some Same-Sex Couples As Spouses

July 8, 2014

August 11, 2014 is the deadline for employers and other interested individuals to comment on the  U.S. Department of Labor’s Wage and Hour Division (DOL) June 27, 2014 Notice of Proposed Rulemaking (NPRM), which would amend the definition of spouse under the current Family and Medical Leave Act of 1993 (FMLA) regulations in light of the United States Supreme Court’s decision in United States v. Windsor, which ruled unconstitutional section 3 of the Defense of Marriage Act (DOMA).  The proposed change is one of a series of regulatory changes that the Obama Administration has proposed or adopted since the Windsor decision.

DOL intends that the NPRM will replace the current definition of “spouse” its current FMLA regulations so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

To accomplish this, the NPRM proposes to revise the current definition of spouse in the current FMLA regulations to define spouse as follows: Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Among other things, this change will:

  • Replace the current “state of residence” rule with a rule that determines spousal status based on where the marriage was entered into (sometimes referred to as “place of celebration”) rule for determining marital status;
  • Revise the definition of spouse expressly to reference same-sex marriages in addition to common law marriages, and to encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The expanded definition of spouse will broaden the range of couples that employers and plans may be required to treat as spouses for purposes of the FMLA.  This expansion also may result in the extension of rights with respect to parents or children of a same-sex partner for certain employment or employee benefit purposes.  While the historical determination of parental relationships under the FMLA regulations based on a functional, rather than legalistic, test means that the proposed change will likely have less significance in this regard, employers and plans still should evaluate the potential implications of the expanded definition of spouse on its responsibilities with respect to the employees, their same-sex partners and the parents and children of the same-sex partners.

Also, many employers and employee benefit plans may be concerned about proposed language in the NPRM and other regulations requiring employers to decide if a marriage not valid in the United States could have been valid if performed within the United States.  Likewise, as the number of states where same-sex partners can qualify as spouses continues to evolve as courts and legislatures act to require recognition of these relationships, many employers and plans may feel legitimate concerns about the operational demands of administering their human resources and employee benefit plans and policies with respect to individuals involved in same-sex relationships where the legal status of the relationship may evolve due to changes of law, creating responsibilities for the employer or plan with respect to relationships that it may not know exist or the status of which may change subsequent to a determination of marital status or other relevant decision.  Employers and employee benefit plans should consider adopting practices to address these challenges to minimize the risk of incurring liability as a result of an oversight resulting from evolving status.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising employers, health plan and other employee benefit, insurance, financial services, health and other business clients about these and other matters.   As a part of this involvement, Ms. Stamer has extensive experience advising employers, employee benefit plans, insurers, health care providers and others about the implications of DOMA and other rules impacting the identification of spouses and other family status protections under the FMLA and other Federal and state employment, tax, health care and other laws.  She publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here 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©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Employee & Other Whistleblower Complaints Common Source of HIPAA Privacy & Other Complaints

July 7, 2014

Employer and other health plan sponsors, administrators, insurers and their business associates should heed both the lesson about properly protecting health plan documents with protected health information and the more subtle lesson about the role of employees and other whistleblowers in bringing these violations to the attention of regulators contained in the latest Health Insurance Portability & Accountability Act (HIPAA) resolution agreement as well as act to manage their potential employment related liability to workforce members reporting these violations

HIPAA’s Privacy, Security and Breach Notification Rules generally prohibit  health plans, health care providers, health plans (Covered Entities) and their business associates from creating, using, accessing or disclosing protected health information except as allowed by HIPAA.  In addition, HIPAA requires covered entities both to meet detailed criteria for protecting electronic protected health information and also to take reasonable steps to protect all protected health information, as well as meet other business associate, breach notification, and individual rights requirements.

Parkview Resolution Agreement

Late last month, the Department of Health & Human Services Office of Civil Rights (HHS) announced that complaints of a retiring physician over the mishandling of her patient records by Parkview Health System, Inc. (Parkview) prompted the investigation that lead Parkview to agree to pay $800,000 to settle charges that it violated HIPAA’s Privacy Rule.

The resolution agreement settles charges lodged by HHS based on an OCR investigation into the retiring physician’s allegations that Parkview violated the HIPAA Privacy Rule by failing to properly safeguard the records when it returned them to the physician following her retirement.

As a covered entity under the HIPAA Privacy Rule, HIPAA requires that Parkview appropriately and reasonably safeguard all protected health information in its possession, from  acquisition to disposition.

In an investigation prompted by the physician’s complaint, OCR found that Parkview breached this responsibility in its handling of certain physician patient records in helping the physician to transition to retirement.

According to OCR, in September 2008, Parkview took custody of medical records of approximately 5,000 to 8,000 patients while assisting the retiring physician to transition her patients to new providers, and while considering the possibility of purchasing some of the physician’s practice.

Subsequently on June 4, 2009, Parkview employees, with notice that the physician was not at home, left 71 cardboard boxes of these medical records unattended and accessible to unauthorized persons on the driveway of the physician’s home, within 20 feet of the public road and a short distance away from a heavily trafficked public shopping venue. OCR concluded this conduct violated the Privacy Rule.

To settle OCR’s charges that these actions violated HIPAA, OCR has agreed to pay the $800,000 resolution amount and to adopt and implement a corrective action plan requiring Parkview to revise their policies and procedures, train staff, and provide an implementation report to OCR.

HIPAA Violations Carry Significant Liability

As demonstrated by the Parkview resolution agreement, violation of HIPAA  can carry significant civil and potentially even criminal liability.  The criminal provisions of HIPAA as well as the express terms of the Privacy Rules require that covered entities and their business associates adopt and administer specific compliance programs and practices to provide to compliance with HIPAA and HIPAA’s breach notification rules and the Privacy Regulations may require self-reporting of violations when and if violations occur.  Since HIPAA includes potential criminal liability, violations of its provisions can trigger organizational liability for covered entities and their business associates.  Consequently, HIPAA compliance also generally should be part of the Federal Sentencing Guideline Compliance Program of every covered entity and business associate.

The HITECH Act tightened certain rules applicable to the use, access or disclosure of protected health information by covered entities and their business associates.  In addition, the HITECH Act added breach notification rules, extended direct responsibility for compliance with HIPAA to business associates, increased penalties for noncompliance with HIPAA and made other refinements to HIPAA’s medical privacy rules and made certain other changes.  Furthermore, enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same.    When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

A series of supplemental guidance issued by the Department of Health & Human Services Office of Civil Rights (OCR) in recent weeks is giving health care providers, health plans, health care clearinghouses (Covered Entities) and their business associates even more to do in reviewing and updating their policies, practices and training for handing protected health information (PHI) beyond bringing their policies and practices into line with OCR’s restatement and update to the Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules Under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule (Omnibus Final Rule) OCR published January 25, 2013.

Covered Entities generally have been required to comply with most requirements the Omnibus Final Rule’s restated regulations restating OCR’s regulations implementing the Health Insurance Portability & Accountability Act (HIPAA) Privacy, Security and Breach Notification Rules to reflect HIPAA amendments enacted by the Health Information Technology for Economic and Clinical Health (HITECH) Act since the Omnibus Final Rule took effect on March 26, 2013 and to have updated business associate agreements in place since September 23, 2013.  Meanwhile, the Omnibus Final Rule generally has required business associates have updated business associate agreements in place and otherwise to have come into compliance with all of the applicable requirements of the Omnibus Final Rule since September 23, 2013.  Although these deadlines are long past, many Covered Entities and business associates have yet to complete the policy, process and training updates required to comply with the rule changes implemented in  the Omnibus Final Rule.

Even if a Covered Entity or business associate completed the updates required to comply with the Omnibus Final Rule, however, recent supplemental guidance published by OCR means that most organizations now have even more work to do on HIPAA compliance. This includes the following supplemental guidance on its interpretation and enforcement of HIPAA against Covered Entities and business associates published by OCR since January 1, 2014 alone:

Beyond this 2014 guidance, Covered Entities and their business associates also should look at enforcement actions and data as well as other guidance OCR issued during 2013 after publishing the Omnibus Final Rule such as:

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same.    When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

Watch & Manage Whistleblower Liability From HIPAA Violations & Compliance

Beyond illustrating the potential HIPAA-associated penalties that can result from failing to comply with HIPAA, the Parkview resolution agreement also illustrates the risks that current or former workforce members and others acting as whistleblowers play in helping OCR to identify HIPAA violations.  HIPAA and most other laws prohibited covered entities from forbidding or retaliating against a person for objecting to or reporting the concern and offer whistleblowers potential participation in the reporting and prosecution of violations.  Beyond these specific federal HIPAA protections, state courts often recognize firing or otherwise retaliating against workforce members or others for exercising rights protected by HIPAA or other federal anti-retaliation statutes as a basis for a state whistleblower or other retaliatory discharge claim.  See, e.g. Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009).  See also Court Recognizes Retaliation For Filing HIPAA Privacy Complaint As Basis For Texas Whistleblower Claim.    With retaliation and other whistleblower complaints becoming increasingly common and judgments from these claims rising, covered entities and their business associates need to include appropriate employment liability risk management processes and procedures in their HIPAA compliance processes and coordinate carefully with their human resources team and qualified employment counsel to manage the employment liability related risks associated with investigations and discipline activities under HIPAA.  Concurrently, Privacy Officers also should ensure that their organization’s human resources team understands the HIPAA rules and spot and properly refers to the privacy officer for investigation statements or other activities that may indicate that a HIPAA compliance or retaliation concern needs investigation or redress to avoid missing potential exposures hidden in the human resources processes that could reflect a practice of tolerance or retaliation unacceptable to OCR.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance often appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here 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©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Consider Fiduciary & Other Risk Management When Planning For ACA Transitional Reinsurance Costs, Other Plan Design Changes

July 7, 2014

Employer and other plan sponsors should start working now with their insurers, administrators and advisors to understand the implications of and their options for addressing the “Transitional Reinsurance Program” and other new Patient Protection & Affordable Care Act (ACA)-associated cost and plan design changes  so that they are prepared to finalize and implement their health plan design, contracts and arrangements in time to meet the accelerated deadlines for notifying participants of plan changes and otherwise implement their plan changes for the upcoming plan year.

The impending imposition of  Transitional Reinsurance Program assessments are only one of a myriad of new and pre-existing federal health plan rules and associated market changes impacting the design of employer and union-sponsored health plans.  Since ACA now also requires 60 days advance written notice of material health plan changes, .  When making these decisions, employer and other health plan sponsors and their advisors, administrators and insurers  should not only focus on the technically new mandates but also the allocation of fiduciary and other responsibilities, liabilities and other plan and services agreements terms.  Plan sponsors and their fiduciaries historically have underappreciated the significance of these allocations or presumed that their vendor contracts allocate responsibility to the service providers and vendors to match the sales pitch.  Always rarely the case, the changes in the marketplace and the law make it even more likely that sponsoring employers and their leaders of even plans that carefully reviewed and negotiated these responsibilities in their past contracts need to carefully look at these plan and contractual terms carefully.

The Transitional Reinsurance Program is one of a series of new ACA-imposed assessments that can impact the plan design and costs.    Proper understanding of these rules is critical for plan sponsors and their fiduciaries to ensure that they don’t unintentionally assume significantly greater liability for their self-insured health plans in an attempt to design around a relatively small by comparison ACA assessment.

Section 1341 of the Patient Protection & Affordable Care Act (ACA) requires the establishment of the reinsurance program to provide for stabilization of funding for exchanges.  Funding for the costs of the program is accomplished through amounts assessed upon insurers and self-insured plan third party administrators.  ACA § 1341 accomplishes this by providing for:

  • The establishment for each State of a transitional reinsurance program stabilize premiums for coverage in the individual market from 2014 through 2016;
  • Requiring all health insurance issuers and third party administrators on behalf of self-insured group health plans, to pay contributions to support reinsurance payments that cover high-cost individuals in non-grandfathered plans in the individual market.

Registration is now open for a series of webinars that the Department of Health & Human Services will host on “The Transitional Reinsurance Program: Contributing Entities and Counting Methods” on July 14, July 18 and July 23, 2014 from 2:00 p.m. – 3:30 p.m. EST.  The upcoming HHS webinars will cover the same information.  They will focus on reinsurance contributions including who is a contributing entity and how a contributing entity can calculate its annual enrollment count to determine reinsurance contribution amounts. The intended audience for this webinar is health insurance issuers, self-insured group health plans, third party administrators (TPAs) and administrative services-only (ASO) contractors.  To register for the HHS webinar and to obtain additional information see here.

Understanding how the Transitional Reinsurance Program assessments will be calculated is one of many critical steps in making plan design changes.  When considering whether to take advantage of options for minimizing these assessments, however, employer, union and other plan sponsors need to consider whether the liability and other consequences of meeting requirements for avoidance of the assessments is warranted by the anticipated savings.  With superficially it might seem desirable to avoid the payment of a few dollars per covered lives associated with the assessment, employers and other sponsoring organizations and the officers or other leadership employees involved in plan design or administration should critically review the effect of meeting these requirements specifically, as well as their proposed vendor contracts and associated plan documents and communications on their personal and organizations’ fiduciary and other liabilities.  To the extent that existing or expanded fiduciary liability cannot be avoided, it will be critical that the sponsor and its leadership ensure that proper steps are taken to select, credential, bond, and appoint the persons who will be or help carry out fiduciary or other plan-related responsibilities.  Additionally, most plan sponsors will want to consider exploring the availability of fiduciary liability insurance coverage to help mitigate the potential liability risks associated with plan sponsorship.

For Advice, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The author of the “Managed Care Contracting Guide” and a multitude of other highly-regarded publications on health plan and other fiduciary liability risk management, Ms. Stamer has advised plan sponsors, administrators, insurers and others about these and other health plan liabilities and their risk management throughout her more than 25 year career. You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to ask about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

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 about this communication click here.

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.   All rights reserved.


HHS Claims Average $69/Month Cost for Subsidized Coverage Shows ACA Success Challenged

June 18, 2014

The Department of Health & Human Services (HHS) is touting a new report available here released today that it says people who qualified for tax credits to buy health insurance coverage through the health insurance exchange who selected silver plans, the most popular plan type in the federal Marketplace, paid an average premium of $69 per month. In the federal Marketplace, 69 percent of enrollees who selected Marketplace plans with tax credits had premiums of $100 a month or less, and 46 percent of $50 a month or less after tax credits.   The balance of the cost of the coverage is covered via subsidies.  Other sources, however, say the data in the report raises concerns about the overall cost of the health care reform law and its impact on the total cost of coverage.

HHS says the report also looks at competition and choice nationwide among health insurance plans in 2013-2014.  HHS claims that the report shows most individuals shopping in the Marketplace had a wide range of health plans from which to choose. On average, consumers could choose from five health insurers and 47 Marketplace plans. An increase of one issuer in a rating area is associated with 4 percent decline in the second-lowest cost silver plan premium, on average.

While the HHS report by focusing on what subsidized individuals pay out of pocket spins the data to give the impression that the health care reform law is bringing down health care costs as promised, other sources say the data in the Report raises serious concerns about the overall cost of the health care reform law and the total cost of coverage.  While acknowledging that “the generous subsidies” helped consumers receiving subsidies, the Los Angeles Times reports these subsidies coupled with the massive enrollment by individuals qualifying for subsidies raise budgetary concerns.  According to the Los Angeles Times article, the reports shows the federal government is on track to spend at least $11 billion on subsidies for consumers who bought health plans on marketplaces run by the federal government, even accounting for the fact that many consumers signed up for coverage in late March and will only receive subsidies for part of the year.  However, this total does not count the additional cost of providing coverage to the 1/3 of the 8 million new people who signed up for coverage who bought coverage in states that ran their own marketplaces, including California, Connecticut, Maryland and New York.   While Federal officials said subsidy data for these consumers were not available, the Los Angeles Times estimated that if these state consumers received roughly comparable government assistance for their insurance premiums, the total cost of subsidies could top $16.5 billion this year, resulting in budgetary costs “far higher”  than the $10 million budgetary cost that the Congressional Budget Office projected subsidies would cost U.S. taxpayers in 2014. See  Obamacare subsidies push cost of health law above projections.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here 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©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


HIPAA Compliance & Breach Data Shares Helpful Lessons For Health Plans, Providers and Business Associates

June 11, 2014

Health care providers, health plans and insurers, health care clearinghouses (collectively “Covered Entities”), their business associates, and others concerned about medical privacy regulations or protections should check out two new reports to Congress about breach notifications reported and other compliance data under the Health Insurance Portability & Accountability Act (HIPAA) by the U.S. Department of Health and Human Services, Office for Civil Rights (OCR).   Reviewing this data can help Covered Entities and their business associates identify potential areas of exposures and enforcement that can be helpful to minimize their HIPAA liability as well as to expect OCR enforcement and audit inquiries.  Smart covered entities and business associates will include review of these and other reports about compliance and enforcement by OCR and assessment of their processes against this information as a part of their HIPAA compliance and risk management practices.

Required by the Health Information Technology for Economic and Clinical Health (HITECH) Act, the two new reports discuss various details about HIPAA compliance for calendar years 2011 and 2012.  They include the following:

  • Report to Congress on Breach Notifications, discussing the breach notification requirements and reports OCR received as a result of these breach notification requirements; and
  • Report to Congress on Compliance with the HIPAA Privacy and Security Rules, summarizing complaints received by OCR of alleged violations of the provisions of Subtitle D of the HITECH Act, as well as of the HIPAA Privacy and Security Rules at 45 CFR Parts 160 and 164 .
  • Covered entities and their business associates should review the finding reported as part of their compliance practices. Others concerned about medical or other privacy or data security regulations or events also may find the information in the reports of interest.

Under HIPAA, covered entities generally are prohibited from using, accessing or disclosing protected health information about individuals except as specifically allowed by HIPAA,  In addition, HIPAA also requires Covered Entities to establish safeguards to protect protected health information against improper access, use or destruction, to afford certain rights to individuals who are the subjects of protected information, to obtain certain written assurances from service providers who are business associates before allowing those service providers to use, access or disclose protected health information when carrying out covered functions for the Covered Entity, and meet other requirements.

The HITECH Act tightened certain rules applicable to the use, access or disclosure of protected health information by covered entities and their business associates.  In addition, the HITECH Act added breach notification rules, extended direct responsibility for compliance with HIPAA to business associates, increased penalties for noncompliance with HIPAA and made other refinements to HIPAA’s medical privacy rules and made certain other changes.

Enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.

Covered Entities generally have been required to comply with most requirements the Omnibus Final Rule’s restated regulations restating OCR’s regulations implementing the Health Insurance Portability & Accountability Act (HIPAA) Privacy, Security and Breach Notification Rules to reflect HIPAA amendments enacted by the HITECH Act since March 26, 2013 and to have updated business associate agreements in place since September 23, 2013.  Although these deadlines are long past, many Covered Entities and business associates have yet to complete the policy, process and training updates required to comply with the rule changes implemented in  the Omnibus Final Rule.

Even if a Covered Entity or business associate completed the updates required to comply with the Omnibus Final Rule, however, recent supplemental guidance published by OCR means that most organizations now have even more work to do on HIPAA compliance. This includes the following supplemental guidance on its interpretation and enforcement of HIPAA against Covered Entities and business associates published by OCR since January 1, 2014 alone:

Beyond this 2014 guidance, Covered Entities and their business associates also should look at enforcement actions and data as well as other guidance OCR issued during 2013 after publishing the Omnibus Final Rule such as:

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same.    When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

 For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here 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©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.


Review & Update Health Plan Notices, Language & Process For New Guidance On COBRA, Other Key Health Plan Rules

June 2, 2014

Add reviewing and updating your plan language, notices and processes for administering the coverage continuation requirements to the ever-growing list of items that employers and other group health plan sponsors, insurers, administrators and fiduciaries need to handle this year.

The most recently emerging guidance published by federal regulators to implement the Patient Protection & Affordability Act (ACA) and other health care reforms is a package of new guidance on COBRA and its interface with COBRA published in early May.  This guidance includes a new HHS Bulletin Allowing COBRA Qualified Beneficiaries to Enroll in the Health Insurance Marketplace,  as well as a series of updated model COBRA and CHIP Notices and related documents.

The HHS Bulletin on COBRA allows individuals who previously elected COBRA rather than enrolling in coverage through one of the new health insurance exchanges created under ACA a special extended enrollment opportunity to enroll in coverage under these exchanges.  Many employers and health plans may want to communicate this new option to help minimize their COBRA exposures.

Beyond  the extended exchange enrollment period for COBRA enrolled or eligible persons, the new guidance also may merit updates and changes to group health plan’s existing COBRA plan language, notices and election forms and procedures.  Labor Department guidance several years ago significantly expanded the number of notifications required under COBRA as well as the required content.  In connection with that guidance, the Labor Department published various model notices and other materials.  As part of new guidance published in May, 2014, the Labor Department has revised and published updated versions of many of these model documents.  The updated materials include:

In addition to the updated COBRA guidance, employers, health plans and their insurers, administrators and fiduciaries also will want to review and update their plan language, processes, budgets, notices and other materials in response to updated guidance in Affordable Care Act Implementation FAQs Part XIX on Department of Labor model notices, limitations on cost-sharing, coverage of preventive services, health flexible spending account (FSA) carryover and excepted benefits, and the Summary of Benefits and Coverage requirements of PHS Act §2715.  Employers and others involved in the design or administration of group health plans  also will want to review this new guidance as part of their continuing health plan compliance, cost forecasting and planning efforts.

Catch Up On Latest, Get Practical Health Plan Insights At June 17  Texas CEO Briefing

Texas CEO Magazine invites Solutions Law Press Readers to catch up on new developments and strategies to help employers prepare for and cope with the ever-evolving stream of health plan developments enacted under the Patient Protection & Affordable Care Act by participating in a practical briefing on:

Tuesday, June 17

7:30 – 9:00 a.m.

Park City Club

5956 Sherry Lane, Dallas

Register: https://texasceomagazine.com/events

Two of Texas CEO’s  “Top 10 Most Read” articles in 2013 were authored by Dallas attorney and benefit specialist Cynthia Stamer who will anchor a panel of benefit experts that will explore new developments and their practical implications on:

  • Benefit Plan Design
  • Workforce Classification
  • Data Collection
  • Cost Projections
  • Private Exchanges
  • New Reporting Requirements (IRC 6055 & 6056)
  • Noncompliance Penalties
  • Avoiding the Tax
  • The New Care Delivery Dynamic

Featured Speakers include Cynthia Stamer, Managing Partner, Solutions Lawyer Publisher and Author, Eric Bassett, Senior Partner & Central Market Leader, Mercer Health & Benefits Consulting, Scott Gibbs, Senior Vice President, McGriff, Seibels & Williams, Inc., and Becky Parker, Health Reform Director, MHBT Inc.

Cynthia is a Dallas-based attorney who has spent more than 25 years helping private and public employers and health and employee benefit planners develop, implement, administer and defend creative, legally compliant and operationally effective health plans and policies.

Cynthia’s Texas CEO Magazine article, “Benefit Plan Triage: 12 STEPS EVERY EMPLOYER WITH A HEALTH PLAN SHOULD DO NOW,” was one of the Top 10 most-read articles of 2012. And in 2013, “Getting Ready for ACA Reform: 13 Steps to Take Now,” and “Affordable Care Act Update,” were both Top 10 most read articles.

Cynthia, among other things,  is:

  • Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group
  • Immediate Past Chair of the ABA’s RPTE Employee Benefit & Compensation Committee
  • Marketing Committee Chair of the ABA Joint Committee on Employee Benefits
  • Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee
  • Current Vice-Chair of the Gulf States TEGE Council – Exempt Organizations Group

Eric works with clients in all areas of health care and group benefits with particular emphasis on health care strategies, delivery system capabilities, defined contribution, and consumerism. Eric began his 28-year health care career working for health care vendors. He has led cross-functional teams involved in the development of rural managed care strategies, integration of legacy networks and systems, physician profiling and implementation of open access networks and systems. Eric’s consulting experience includes:

  • Developing and managing health improvement, disease and demand management programs.
  • Chronic PCMH program design and development.
  • Working with management and labor during collective bargaining.
  • Integrating and consolidating benefit plans for mergers and acquisitions.
  • Working closely with corporate committees to facilitate decision-making.
  • Active and retiree exchange strategy and design.

Scott Gibbs works with large employers on long term strategies to make corporate benefit plans consistent with the company’s goals and budgets, working with both fully-insured and self-funded plans.

Scott is a member of:

  • Society for Human Resource Management (SHRM)
  • Texas Public Risk Management Association
  • International Foundation of Employee Benefit Plans
  • State and Local Government Benefit Association
  • Scott has an undergraduate degree from Baylor University and a Master’s in Health Care Administration from Trinity University.

Becky directs all corporate strategy and communication on the Affordable Care Act for MHBT and its clients. She has worked as an employee benefits advisor since 1992 and was one of the first employee benefits professionals to have earned a Certification in Health Care Reform Studies from The American College.

Becky is an active member of the Austin Association of Health Underwriters where she was president in 2003 and also served on the Texas Association of Health Underwriters board as their liaison to the Texas Department of Insurance and was honored nationally for her work.

Becky is an advocate for employee benefits in the legislative arena regularly testifying at the Texas State Capitol and engaging our federal elected officials on insurance related matters. Becky has even advised Texas Congressmen on the employer aspects of the Affordable Care Act.

Becky holds a Bachelor of Arts degree from The University of Texas at Austin.

For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

For the past two years, Ms. Stamer has served as the  scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR.   Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the second year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

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 about this communication click here.

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.   All rights reserved.


6/17 Workshop Helps Businesses Get Ready for Latest Affordable Care Act Rollout

May 31, 2014

Texas CEO Magazine invites Solutions Law Press Readers to catch up on new developments and strategies to help employers prepare for and cope with the ever-evolving stream of health plan developments enacted under the Patient Protection & Affordable Care Act by participating in a practical workshop

Tuesday, June 17

7:30 – 9:00 a.m.

Park City Club

5956 Sherry Lane, Dallas

Register: https://texasceomagazine.com/events

The Affordable Care Act continues to hit the business world with successive waves of reform. To make sure your company is ready, we’ve assembled a panel of experts to update you about the current and impending legal terrain and share their benefit plan design and compliance tips to help your business cope with these changes.

Two of Texas CEO’s  “Top 10 Most Read” articles in 2013 were authored by Dallas attorney and benefit specialist Cynthia Stamer who will anchor our panel of benefit experts as we take you through:

  • Benefit Plan Design
  • Workforce Classification
  • Data Collection
  • Cost Projections
  • Private Exchanges
  • New Reporting Requirements (IRC 6055 & 6056)
  • Noncompliance Penalties
  • Avoiding the Tax
  • The New Care Delivery Dynamic

Featured Speakers Include:

Cynthia Stamer, Managing Partner, Solutions Lawyer

Cynthia is a Dallas-based attorney who has spent more than 25 years helping private and public employers and health and employee benefit planners develop, implement, administer and defend creative, legally compliant and operationally effective health plans and policies.

Cynthia’s Texas CEO Magazine article, “Benefit Plan Triage: 12 STEPS EVERY EMPLOYER WITH A HEALTH PLAN SHOULD DO NOW,” was one of the Top 10 most-read articles of 2012. And in 2013, “Getting Ready for ACA Reform: 13 Steps to Take Now,” and “Affordable Care Act Update,” were both Top 10 most read articles.

Ms. Stamer is:

  • Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group
  • Immediate Past Chair of the ABA’s RPTE Employee Benefit & Compensation Committee
  • Marketing Committee Chair of the ABA Joint Committee on Employee Benefits
  • Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee
  • Current Vice-Chair of the Gulf States TEGE Council – Exempt Organizations Group

Eric Bassett, Senior Partner & Central Market Leader, Mercer Health & Benefits Consulting

Eric works with clients in all areas of health care and group benefits with particular emphasis on health care strategies, delivery system capabilities, defined contribution, and consumerism. Eric began his 28-year health care career working for health care vendors. He has led cross-functional teams involved in the development of rural managed care strategies, integration of legacy networks and systems, physician profiling and implementation of open access networks and systems. Eric’s consulting experience includes:

  • Developing and managing health improvement, disease and demand management programs.
  • Chronic PCMH program design and development.
  • Working with management and labor during collective bargaining.
  • Integrating and consolidating benefit plans for mergers and acquisitions.
  • Working closely with corporate committees to facilitate decision-making.
  • Active and retiree exchange strategy and design.

Scott Gibbs, Senior Vice President, McGriff, Seibels & Williams, Inc.

Scott Gibbs works with large employers on long term strategies to make corporate benefit plans consistent with the company’s goals and budgets, working with both fully-insured and self-funded plans.

Scott is a member of:

  • Society for Human Resource Management (SHRM)
  • Texas Public Risk Management Association
  • International Foundation of Employee Benefit Plans
  • State and Local Government Benefit Association
  • Scott has an undergraduate degree from Baylor University and a Master’s in Health Care Administration from Trinity University.

Becky Parker, Health Reform Director, MHBT Inc.

Becky directs all corporate strategy and communication pertaining to the Affordable Care Act for MHBT and its clients. She has worked as an employee benefits advisor since 1992 and was one of the first employee benefits professionals to have earned a Certification in Health Care Reform Studies from The American College.

Becky is an active member of the Austin Association of Health Underwriters where she was president in 2003 and also served on the Texas Association of Health Underwriters board as their liaison to the Texas Department of Insurance and was honored nationally for her work.

Becky is an advocate for employee benefits in the legislative arena regularly testifying at the Texas State Capitol and engaging our federal elected officials on insurance related matters. Becky has even advised Texas Congressmen on the employer aspects of the Affordable Care Act.

Becky holds a Bachelor of Arts degree from The University of Texas at Austin.

For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

For the past two years, Ms. Stamer has served as the  scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR.   Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the second year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

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 about this communication click here.

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.   All rights reserved.


Post-Windsor Same-Sex Participant Guidance May Require Mid-Year Plan Amendments

May 15, 2014

Employers and fiduciaries of 401(k) plans should take note of the potential need to adopt a mid-year amendment to their plans to comply with new guidance of the Internal Revenue Service (IRS) on the need to timely amend their plans to comply with IRS recent guidance on when their plans must afford same-sex partners treatment equivalent to opposite-sex married couples issued in response to the Supreme Court’s decision striking down the Defense of Marriage Act (DOMA) in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 2013).  At the same time, they also should review other recent guidance to determine if changes are required or otherwise desirable to their cafeteria, health and other welfare, and other employee benefit plans, family leave, and other human resources and employee benefit policies.

The IRS previously announced that a mid-year amendment to 401(k) plans to recognize same-sex partners as married couples for certain plan purposes might be required in Notice 2014-19.  This announcement has presented some confusion for some sponsors of safe harbor 401(k) plans as Treasury Regulation § 1.401(k)-3(e)(1)  generally requires that a Section 401(k) safe harbor plan be adopted before the beginning of the plan year and maintained throughout a full 12-month plan year, however, except as otherwise provided in § 1.401(k)-3(g) (on the reduction or suspension of safe harbor contributions) or in guidance of general applicability published in the Internal Revenue Bulletin.  To resolve these questions, the IRS announced today (May 15, 2014) released an advance copy of Notice 2014-37, which is scheduled for official publication in Internal Revenue Bulletin 2014-23 on June 2, 2014.  Notice 2014-37 will provide that the adoption of a mid-year amendment to a 401(k) safe harbor plan that will take effect during the plan year  (“mid-year amendment”) will not disqualify the plan.

In light of this guidance, 401(k) sponsors, including those sponsoring 401(k) safe harbor plans, should ensure that their plans are timely amended to comply with the post-Windsor rules.

In addition to amending their 401(k) plans, employers also should review other emerging post-Windsor guidance impacting other employment and employee benefit practices and update their policies and practices as needed to comply with emerging guidance.  For instance, the IRS also recently has published guidance s rules about health savings accounts (HSAs) after the Windsor decision.

Before the Windsor decision declared DOMA unconstitutional, Internal Revenue Service (IRS) guidance prohibited cafeteria plans, including HSAs and FSAs from treating same-sex partners as married based on DOMA’s restriction of the definition for federal tax and other federal law purposes to only a legal union between one man and one woman and the definition of “spouse” only to a person of the opposite sex who is a husband or wife.  As a result, IRS pre-Winsor guidance prohibited HSAs, FSAs and other cafeteria plans from allowing employees to choose coverage of same-sex spouses on a pre-tax basis under a cafeteria plan unless the spouse otherwise qualified as a tax dependent of the employee.

In Windsor, the Supreme Court struck down DOMA’s prohibition of the recognition of same-sex couples as married or spouses as an unconstitutional violation of the Fifth Amendment to the United States Constitution.

In response to the Windsor ruling of DOMA unconstitutional, the IRS initially updated its guidance to reflect the Windsor ruling in Rev. Rul. 2013-17, which held:

  • For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex;
  • For Federal tax purposes, the IRS adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two  individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages;
  • For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of  the opposite sex or the same sex) who have entered into a registered  domestic partnership, civil union, or other similar formal relationship      recognized under state law that is not denominated as a marriage under the      laws of that state, and the term “marriage” does not include such formal relationships;
  • Rev. Rul. 2013-17 also stated that taxpayers could rely on this holding retroactively for purposes of filing original returns,   amended returns, adjusted returns, or claims for credit or refund  employment tax and income tax with respectto employer-provided health coverage benefits or fringe benefits that  the employer provided and are excludable from income under sections 106, 117(d), 119, 129, or 132 based on an individual’s marital status; and
  • For purposes of the preceding sentence, if an employee made a pre-tax salary-reduction election for health coverage under a section 125 cafeteria plan sponsored by an employer and also elected to provide health coverage for a same-sex spouse on an after-tax  basis under a group health plan sponsored by that employer, an affected  taxpayer may treat the amounts that were paid by the employee for the coverage of the same-sex spouse on an after-tax basis as pre-tax salary  reduction amounts.

Subsequently, the IRS also published special administrative procedures for employers to use to make adjustments or claims for refund or credit of employment taxes paid with respect to the value of same-sex spousal benefits that are excludable from the income and wages of an employee under the Windsor decision, as interpreted by Rev. Rul. 2013-17.

Most recently regarding cafeteria plans, Notice 2014-01 discusses when plan sponsors may need to amend their cafeteria plan documents to allow mid-year election changes by same-sex spouses.  It states that a cafeteria plan that does not contain written terms that allow changes of election upon change in legal marital status generally would need to be amended before a same-sex couple could be allowed to make an election change.  However, where the cafeteria plan already contains written terms permitting a change in election upon a change in legal marital status, Notice 2014-01 states a plan amendment generally is not required to allow an employee who acquires a same-sex spouse to make a mid-year election change in response to the acquisition of a same-sex spouse.

Beyond this plan amendment guidance, Notice 2014-01 also further clarifies the IRS’ previous post-Windsor guidance by  answering various questions about the treatment of same-sex couples following Windsor for purposes of  administering FSA-reimbursements, HSA limits and mid-year election changes.

For Representation, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

For the past two years, Ms. Stamer has served as the  scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR.   Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the second year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

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.

©2013 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.   All rights reserved.


Arkansas Judge Finds Arkansas Same-Sex Marriage Bans Unconstitutional; State Asks For Stay Pending Appeal

May 12, 2014

The State of Arkansas is appealing a May 9, 2014 decision of Circuit Court Judge Christopher Charles Piazza that if not overturned, makes Arkansas the latest state forced to recognize same-sex marriage.  Like the growing list of other jurisdictions that recently have recognized same-sex couples as entitled to legally protections of marriage or enacted domestic partnership laws, employers and employee benefit plan administrators should take note of the decision for purposes of administering their employment and employee benefit plan responsibilities with respect to same-sex couples in Arkansas.

In his May 9, 2014 order in Wright v. State of Arkansas, Judge Piazza ruled that the ban by Arkansas of same-sex marriages and its refusal to recognize same-sex marriages performed in other states violate the due process clause.   The Wright plaintiffs included 12 same-sex couples seeking to marry in Arkansas and 8 same sex couples seeking to have Arkansas recognize their marriages despite two Arkansas laws expressly prohibiting recognition of same-sex marriages:

  • Act 144 of 1997 of the Arkansas General Assembly, codified at Ark. Code Ann. Section 9-11-107 and 9-11-109, which states “marriage shall only ben between a man and a woman.  A marriage between persons of the same-sex is void” and that a marriage which would be valid by the laws of the state  entered into by a persons of the same-sex is void in Arkansas; and
  • Amendment 83 passed by Arkansas voters in 1994, which provides “marriage consists of only the union of one man and one woman” and that “Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.”

Citing among other things to the Supreme Court’s recent decision striking down the Defense of Marriage Act  (DOMA) in United States v. Windsor, 570 U.S. __, 133 S.Ct. 2675 (2013), Judge Piazza ruled both laws violated the equal protection clause of the United States Constitution and therefore were void.

The State of Arkansas filed an immediate appeal to the ruling and has asked for a stay pending appeal.

In Windsor, the Supreme Court ruled unconstitutional  the prohibition enacted by Congress, which prohibited the federal government from recognizing marriages or domestic partnerships between same-sex couples that were valid under state law for purposes of federal tax laws. Since then, the Internal Revenue Service and other federal agencies generally have moved quickly to treat same-sex couples entering into valid marriages or domestic partnerships under state law.  As a result of the Internal Revenue Service’s implementation of changes required by this decision, many employee benefit plans and their sponsoring employers now face the need to review and update the tax treatment and other plan terms and policies regarding the treatment of same-sex partnerships.  Meanwhile, many employers also need to update family medical leave and other employment policies to respond to Labor Department regulatory and enforcement changes, which call for employers to recognize certain domestic partnerships or same-sex marriages that are valid in the state performed as marriages for purposes of leave and other laws.

 About the Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters.  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, the editor of Solutions Law Press HR & Benefits Update and, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations.  Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others.  You can review other highlights of Ms. Stamer’s experience here.

If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates 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 or e-mailing this information here or registering to receive our Solutions Law Press distributions here. For important information about this communication click here.

©2014 Cynthia Marcotte Stamer. All rights reserved.


Businesses Employing Children Should Review & Tighten Practices In Light of Tightened Rules & Increased Penalties

May 6, 2014

Employers gearing up to hire college, high school and other younger workers for summer positions should confirm their compliance and other preparations are ready to cope with these younger workers.

Working effectively with young workers can provide great benefits to the employer, invaluable experience to the young worker, and tremendous community benefits.  However, working with young workers often creates additional legal requirements, as well as requires special planning to effectively manage workers inexperienced with coping with the workplace environment.

Federal Regulation of Employment of Children

With summer the time that youth employment traditionally peaks, employers hiring workers under age 18 should review their practices for compliance with federal and state child labor laws to minimize exposures to violations under special rules governing their employment of children under the Fair Labor Standards Act (FLSA), the Occupational Health & Safety Act (OSHA)  and other federal and state laws.  Many of these regulations have not only increased requirements in recent years, but also allow for stiff penalties against employers that violate rules governing the employment of children.  Under amendments to the FLSA enacted a few years ago, for instance, employers violating child labor laws now face tighter rules and increased penalties under these rules. Under Labor Department FLSA regulations for nonagricultural workers, for instance,  the employment of individuals under age 18 in hazardous nonagricultural occupations is prohibited. Individuals under age 16 may work only limited hours outside of school hours. Additionally, 14- and 15-year-olds may not work before 7 a.m. or later than 7 p.m. (9 p.m. from June 1 through Labor Day).  There are additional restrictions on the types of jobs and hours 14- and 15-year-olds may work.  Special rules also apply to the employment of children in agriculture.

Under tough new penalties announced by the U.S. Department of Labor on July 16, 2010, employers who illegally employ individuals ages 12 or 13 will face a penalty of at least $6,000 per violation. If a worker is under 12 years of age and illegally employed, the penalty will be at least $8,000. Penalties for illegally employing workers under age 14 could be raised to $11,000 under certain conditions.

Planning For Effective Management Of Young Workers

Employers hiring young workers also should consider the advisability of special planning or supervision to help make the engagement successful for both the employer and the young worker.  Young workers lack of experience with the expectations of the workplace or other immaturity may require special coaching or management.  Lack of experience with the position may require additional training.  Failing to address these needs can create performance issues or even safety issues if not properly handled.

The Department of Labor and various agencies have a wide range of resources to aid employers and communities in planning for youth employment.  It recently released a new program planning guide available at http://wdr.doleta.gov/directives/attach/TEN/TEN_28_13_Attachment.pdf.

As summer traditionally is a time when youth employment peaks, summer employment practices of employers that hire young workers makes it particularly important that employers of these young workers take steps to review their current practices to confirm their compliance with these new rules to minimize penalty exposures. If you need assistance with reviewing your organization’s child labor or other employment or employee benefit practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or cstamer@solutionslawyer.net.

About the Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters.  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, the editor of Solutions Law Press HR & Benefits Update and, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations.  Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others.  You can review other highlights of Ms. Stamer’s experience here.

If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates 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 or e-mailing this information here or registering to receive our Solutions Law Press distributions here. For important information about this communication click here.

©2014 Cynthia Marcotte Stamer. All rights reserved.


Follow

Get every new post delivered to your Inbox.

Join 517 other followers