Updated Kaiser Family Foundation Tool May Help Project Which Employees Will Get Exchange Subsidies

Cynthia Marcotte Stamer — Thu, 16 May 2013 14:21:28 +0000

Employers, health insurers, health plan administrators and brokers and individuals wanting help projecting when employees or other individuals are likely to qualify for subsidies for enrolling in the health insurance exchanges established under the Patient Protection & Affordable Care Act (ACA) may want to check out the updated the Kaiser Family Foundation’s updated health reform subsidy calculator (Subsidy Calculator). The Obama Administration now refers to these ACA-mandated exchanges as “Marketplaces.”

Kaiser Family Foundation has developed the Subsidy Calculator as a tool to help estimate and illustrate how government subsidies, designed to help with the cost of insurance premiums, will work under ACA when Marketplaces and the ACA subsidy rules take effect in January.

Beginning in 2014, ACA provides tax credits for certain low to moderate-income people under age 65 purchasing coverage through an Exchange, who are not offered affordable minimum essential coverage providing minimum value under an employer plan or otherwise covered through Medicare, or Medicaid, and instead purchase coverage on their own in a Marketplace.

The Subsidy Calculator is intended by Kaiser Family Foundation to help users can estimate the expected financial impact of the law for people based on income level, family size, age, and tobacco usage by entering the relevant information into the calculator. According to the Kaiser Family Foundation, the tool “estimates the premiums and subsidies available in 2014, once relevant provisions in the health reform law take effect. For users whose household income may qualify them for Medicaid, the tool indicates that Medicaid will be available in states that expand the program and illustrates subsidies and coverage options in states that choose not to expand. The updated calculator — which reflects the latest regulatory guidance from the federal government — also illustrates the option to purchase different levels of coverage and displays the maximum out-of-pocket costs that people would face.”

Kaiser Family Foundation warns users that the Subsidy Calculator has certain limitations. For instance, Kaiser Family Foundation says, “In many cases, coverage in the new marketplaces will be more comprehensive and accessible than what is typically available today in the non-group market and premiums will no longer vary by health status. For these reasons, the calculator cannot show what people buying insurance on their own are now paying and its results are not necessarily comparable to current insurance premiums. The subsidies do not apply to people with coverage available through an employer, where the firm is generally paying for a substantial portion of the insurance premium. “

Despite these limitations, the Subsidy Calculator is likely to be a helpful modeling tool for individuals and businesses in making rough projections. Employers and health plans may want to look at the Subsidy Calculator to help project workers likely to qualify for subsidies as well as to help design communications, with appropriate disclaimers, for workers to use to help make decisions in their upcoming health plan enrollment process.

For Help or More Information

If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.

Extensively published and a popular speaker on HIPAA and other data security matters, Ms. Stamer works extensively on health benefit and other related health care reform, insurance, workforce and employee benefit matters.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

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

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

Filed under: 105(h), Consumer Protection, Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Reporting & Disclosure, Tax, Uncategorized Tagged: 39G, 4980H, ACA, Employers, Health Care Reform, Health Plans

New IRS Guidance On ESOP Investment Diversification Reminder To Tighten Compliance, Risk Management

Cynthia Marcotte Stamer — Sun, 12 May 2013 22:02:05 +0000

Fiduciaries, administrators, sponsors, advisors, trustees and others with involvement or responsibility for Employee Stock Option Plans (ESOPs) should review these rules and ensure that appropriate steps are taken to update their plan terms and practices to comply with new rules scheduled to be published in the Internal Revenue Bulletin on May 13, 2013 by the Internal Revenue Service on investment diversification.

Maintaining legally compliant and defensible arrangements for investing company stock in employee stock and other defined contribution employee benefit and deferred compensation plans continues to become increasingly complicated in the face of the expanding range of rules adopted by Congress and federal regulators looking to protect participants against stock drop and other actual or perceived abuse.

Among these tightening requirements are new rules announced in Notice 2013-17, which address the circumstances in which an ESOP that satisfied the diversification requirements of § 401(a)(28)(B)(i) by allowing distribution of a portion of a participant’s account has become subject to the diversification requirements of § 401(a)(35). Notice 2013-17 will be published in Internal Revenue Bulletin 2013-20 on May 13, 2013.

The new diversification rules are reflective of a host of new and proposed rules and enforcement positions that Congress and federal regulators have or are contemplating to address perceived abuses or risks arising from the investment or retention of company stock in employee benefit plans. Some of this new regulation arises from decline in retirement plan asset value that results from declines in stock value when the economy or a particular business suffers economic setbacks. Along with these economic concerns, other regulation seeks to safeguard participants and plans against Enron, Madoff or other activities by plan sponsors, investment advisors, executives or others that Congress or regulators perceive inappropriately put retirement and savings of workers at risk. Noncompliance with these requirements risks not only tax qualification concerns, but also may expose decision-makers to fiduciary or other liability under the Employee Retirement Income Security Act fiduciary responsibility and prohibited transaction rules, securities laws, and other laws.

In response to Notice 2013-17 and other new rules, fiduciaries, administrators, sponsors, advisors, trustees and others with involvement or responsibility for ESOP should review these rules and ensure that appropriate steps are taken to update their plan terms and practices to comply with this new guidance. In conjunction with this review, most also will find advisable to review the adequacy of their existing policies and plan terms about their program’s investments in company and other stock in light of evolving fiduciary responsibility and other investment rules and enforcement guidance of the Internal Revenue Service as well as the Department of Labor Employee Benefit Security Administration and the Securities and Exchange Commission.

If you have any questions or need help reviewing and updating your ESOP or other employee benefit plans, or with any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Board Certified Labor and Employment Attorney and Management Consultant Cynthia Marcotte Stamer at 469.767.8872.

For Help or More Information

Extensively published and a popular speaker on HIPAA and other data security matters, Ms. Stamer works extensively with health care providers, health plans, employers, insurance and financial services, technology and other clients on privacy, data seurity and other privacy and cybercrime concerns. She also serves as the Scribe for the ABA JCEB Agency Techical Sessions Meetings with the Office of Civil Rights which occur each May in Washington, D.C.

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

Filed under: 105(h), Bankruptcy, Consumer Protection, Corporate Compliance, Employee Benefits, Employers, ERISA, Excise Tax, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Reporting & Disclosure, Tax, Uncategorized Tagged: Diversification, Esops, Fiduciary Responsibility

EBSA Releases Model ACA Notices Discussing Coverage Options

Cynthia Marcotte Stamer — Thu, 09 May 2013 15:21:48 +0000

Employer and other health plans should begin updating their health plan notice and enrollment documents in response to the Department of Labor’s Employee Benefits Security Administration’s release today of the following key materials impacting notification of employees about coverage options required in response to the rollout of the next phase of the health care reforms of the Patient Protection and Affordable Care Act:

Notice to employees of coverage options Technical Release 2013-02 – Guidance on the notice to employees of coverage options under FLSA §18B and updated model election notice under COBRA, available at http://www.dol.gov/ebsa/newsroom/tr13-02.html
Model notice for employers who offer a health plan to some or all employees, available at http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf
Model notice for employers who do not offer a health plan, available at http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf
COBRA model election notice, available at http://www.dol.gov/ebsa/modelelection.pdf.

The model notices and guidance provides insight that health plans and their sponsors should review and use to help tailor notices that are suitable for their health plans to use to provide the notification ACA requires about the potential availability of coverage from the new public exchanges being created under ACA.

Solutions Law Press, Inc. is finalizing arrangements to host a briefing on these new requirements the first week of June. Stay tuned for more details.

For Help or More Information

Other Resources

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

Filed under: 105(h), Consumer Protection, Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Reporting & Disclosure, Tax, Uncategorized

Group Health Plans &No-Fault & Worker’s Comp Ruled Primary Plans When Coordinating With Medicare Advantage Plans

Cynthia Marcotte Stamer — Thu, 09 May 2013 10:31:54 +0000

Group health plans and liability, no-fault and worker’s compensation insurers should confirm they are properly coordinating benefits with Medicare Advantage organizations (MAOs) to avoid a private cause of action for double damages to recover amounts under the Medicare Secondary Payer Act (MSP Act) in light of the U.S. Supreme Court’s denial of certiorari on an appeal of the Third Circuit’s decision in In Re Avandia Marketing Sales Practices GlaxoSmithKline LLC v. Human Medical Plans, Inc. (Glaxo). The Supreme Court’s decision denying certiorari reported here lets stand a Third Circuit decision that the private right of action provision in the MSP Act, set forth at 42 U.S.C. 1395y(b)(3), gives Humana a private cause of action as a primary plan against GSK to recover the double damage award.

MSP Act Secondary Payor Rules Require Proper Coordination

The MSP Act contains specific rules about when and how group health plans, automobile and liability insurance, no fault insurance policies and amounts recovered from tort actions are coordinated with benefits under the Medicare Statute. The MSP Act’s Secondary Payor Rules require group health plans, automobile and liability insurance and no fault insurance policies to treat their coverage as the “primary plan” for purposes of coordinating their coverage with the benefits provided under the Medicare Statute under certain conditionsbenefits face double damage for improperly coordinating their benefits and coverage with those provided under the Medicare Statute. The MSP Act generally dictates the conditions under which these coverages are primary to benefits provided under the Medicare Statute and obligates primary plans and individuals receiving judgment or settlements that include payment for medical expenses for which benefits were received under the Medicare Statute to repay Medicare. Violation of these rules exposes the applicable plan to double damages and other costs of recovery.

Glaxo On MA Plan MSP Act Rights

In Glaxo, the Third Circuit ruled that MAOs can sue primary plans under the MSP Act for double damages when a primary plan fails to appropriately reimburse the MAO as a secondary payor.

In Glaxo, Humana Medical Plan Inc. and Humana Insurance Company (collectively, Humana) sued GlaxoSmithKline LLC and GlaxoSmithKline PLC (collectively, GSK) for reimbursement of expenses Humana incurred from injuries its MA members sustained from use of GSK’s type 2 diabetes drug, Avandia. GSK has paid more than $460 million to Avandia patients settle patient claims that Avandia patients sustained heart attacks, strokes or other injuries from taking the drug. In the settlement, GSK reserved monies to reimburse the Medicare Trust Fund for payments it made to cover the costs of treatment for the Medicare fee-for-service (FFS) enrollees’ Avandia-related injuries but did not set aside funds for reimbursement to MAOs. Humana sued GSK for reimbursement, claiming that GSK has a primary plan obligation under the MSP Act to reimburse Humana as a secondary payor.

The Supreme Court’s decision not to review the appeal from this Third Circuit decision means that in the Third Circuit (and perhaps other jurisdictions), MAOs can pursue an action for double damages under the Medicare Secondary Payor Act against a group health plan, no-fault carrier or worker’s compensation insurer that fails to fulfill its obligation as a primary plan to reimburse Medicare conditional payments paid by the MAO.

The Third Circuit’s decision in Glaxo is distinguishable from the Ninth Circuit’s position on a similar issue in Parra v. PacifiCare of Arizona, Inc. (PacifiCare), where the 9^th Circuit ruled PacifiCare did not have a private right of action under the MA statute or under 42 U.S.C. 1395y(b)(3)(A) against the surviving family members for amounts recovered in a wrongful death action since that provision of the MSP Act only applies in cases where a primary plan fails to reimburse an insurer as a secondary payor.

Proper identification and payment of claims and settlements in coordination with MAOs and their Plans is important because improper coordination may expose a group health plan or other primary payer to double damage liability, attorneys fees’ and other costs.

In light of Glaxo, group health plans and their administrators, and group health insurers, worker’s compensation insurers, and liability insurers should ask if asking Medicare beneficiares if they are or have been enrolled in a MA plan when paying or processing claims and if so, act proactively to ensure that payments under their programs are properly processed and paid to take into account responsibilities under the Medicare Secondary Payer rules. Determination and handling these types of payments and settlements likely will require special handling because the Medicare Secondary Payer system currently doesn’t distinguish MA Plans as primary plans. Accordingly, group health plans and the fiduciaries and administrators involved in their administration will want to take proper steps to identify claims that may involve individuals covered by MA Plans in a manner that allows the group health plan to track and distinguish the coverage provided by the MA Plan from other insurance coverage as needed to comply with the MSP Act.

For Help or More Information

If you need help with the MSP Act or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

Other Resources

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

Filed under: Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Tax, Uncategorized Tagged: Affordable Care Act, annual limits, Business Associate, Coordination of Benefits, Covered Entity, Employee Benefits, ERISA, Health Insurance, Health Plans, HIPAA, Isurance, Medicare, MSP Act, Personal Health Information, PHI, Privacy, RE, SBC, Summary of Benefits and Communications

Changing Plan Years Won’t Extend Health Plan’s Affordable Care Act Annual Limit Waiver Eligibility

Cynthia Marcotte Stamer — Mon, 06 May 2013 15:19:28 +0000

Employer and other group health plan sponsors, insurers, fiduciaries and administrators should brace to cope with difficulties in upcoming 2014 health plan enrollment challenges in light of sweeping health plan changes, process and system disruptions complicated by incomplete and delayed guidance, and other changes arising from the rollout of the Patient Protection & Affordable Care Act (ACA), particularly with the deadline to provide ACA-required Summary of Benefits and Coverage (SBC) disclosures by the first day of the annual enrollment period for the 2014 plan year rapidly approaching.

Confusion and indecision about health plan choices is a common challenge for employees and participants that historically has plagued efforts by employer and other group health plans, their sponsors, administrators and insurers to efficiently conduct annual enrollment. Sweeping health plan changes and other simultaneous changes to the U.S. health care system resulting from the reforms enacted as part of ACA promise to add significant complexity and confusion to the process.

Recent polls confirm that American workers generally are unfamiliar and confused about ACA, its status and its implications for them. See Kaiser Tracing Poll: April 2013 ; See also Kaiser Foundation Poll Finds Confusion Over ACA Abounds With Open Enrollment Six Months Away.

Amid this confusion, employer and other group health plans and insurers are struggling to finalize decisions and begin preparations as a result in delays in guidance, delayed or slow implementation of exchanges, and other challenges arising in response to the ACA reforms that obstruct plan sponsor decision-making and health plan’s ability to implement these decisions. Much guidance group health plans, their sponsors and insurers need to make decisions and implement arrangements is only now emerging, and that in largely late-breaking and/or transitional form. These delays, in turn, are making group health plans, their sponsors, insurers, fiduciaries and administrators ability to finalize arrangements and contracts, amend plan documents, prepare newly required Summary of Benefits & Coverage (SBC) disclosures (required to be distributed by first day of enrollment period), summary plan descriptions (SPDs), enrollment materials and other communications and processes. With SBCs due to be distributed by the first day of any enrollment period for 2014, the time to prepare is running extremely short. Deadline To Send ACA Summary of Benefits & Coverage Adds Pressure To Finalize 2014 Plan Designs As Agencies Add MEC & MV Disclosures To SBC.

In the face of these challenges, Federal regulators are looking to shift many of the burdens of dealing with enrollment difficulties on employers and insurers. See Insurers Prepare, Reluctantly, To Help With Obamacare Enrollment.

While employer and other plan sponsors, insurers, fiduciaries and administrators may not have all of the information and rules they might need or ideally like to finalize all arrangements and documents, they generally must get moving on those preparations that they can begin now to allow adequate time to deal with late-breaking guidance and finalize other arrangements. To minimize the risk of running outof time and to allow time to smooth out confusion and other arrangements, employer and other health plans, their sponsors, insurers, fiduciaries and administrators should get started preparing draft contracts, plan amendments or restatements, draft SBC, SPD and other enrollment and coverage materials and processes to position themselves to be able to timely finalize and launch these arrangements.

For Help or More Information

If you need help with the SBC or other 2014 health plan decision-making or preparation, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.

Other Resources

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

Filed under: Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Tax, Uncategorized Tagged: Affordable Care Act, annual limits, Employee Benefits, ERISA, Health Insurance, Health Plans, Isurance, RE, SBC, Summary of Benefits and Communications

Former White House Cybersecurity Coordinator Schmidt, Stamer & Others Share Key HIPAA & Other Privacy & Data Security Insights 5/21 In LA

Cynthia Marcotte Stamer — Fri, 03 May 2013 15:17:28 +0000

Former White House Cybersecurity Coordinator Howard Schmidt and Solutions Law Press, Inc. editor attorney Cynthia Marcotte Stamer are two of an impressive lineup of leaders scheduled to share key HIPAA & other privacy and data security compliance and risk management strategies at the Healthcare HITECH Privacy and Security Summit at the Fifth Annual Information Security Summit on May 21 in Los Angeles.

The Healthcare HITECH Privacy and Security Summit will bring together leaders in Privacy and Security within government and private industry for a day of collaboration, networking and presentations by leading Privacy and Security professionals sharing who HIPAA covered entities and business associates need to know to comply with new HITECH rules and OCR investigations.

Solutions Law Press, Inc. editor attorney Cynthia Marcotte Stamer will help lay the foundation for the workshop by briefing participants on changes made to HIPAA rules by the new Omnibus HIPAA Rulemaking changes that the Office of Civil Rights (OCR) plans to start enforcing in September, 2013.

With the rapidly approaching and privacy and data breach penalties and enforcement rising, health care providers, health plans, health care clearinghouses and their business associates must get moving to update business associate contracts, policies and notices and processes to meet changing HIPAA rules while managing ongoing compliance and risks.

Stamer Speaks On Latest HIPAA Privacy, Security, Breach Notification & Enforcement Rules & Developments

Armed with the latest insights from serving as the scribe for the ABA JCEB annual agency meeting with the Office of Civil Rights (OCR), Ms. Stamer, a practicing attorney and widely published author and speaker, will discuss required changes and other recommended steps and strategies that covered entities and their business associates should take to maintain HIPAA compliance and manage HIPAA and other related risks in light of the Omnibus HIPAA Rulemaking changes, new OCR guidance for health care providers about disclosures to avert threats to health or safety, recent audit and enforcement activities and other changing risks and responsibilities including:

The latest on OCR’s regulatory guidance, audit and investigation and enforcement rules, actions and strategies and their implications on covered entities and business associates;
Changes to breach notification rules and their implications on covered entities and their business associates;
Practical implications of new rules on who is covered and their responsibilities;
Required and recommended updates to policies, business associate and other agreements, privacy notices and other HIPAA compliance arrangements;
Effective training and other risk management strategies;
Planning for, investigating and mitigating PHI privacy breaches and other compliance concerns under new rules other selected events; and
Other selected strategies for coordinating HIPAA and other privacy and data breach responsibilities and risk management; and
Participant questions.

For a complete agenda, to register, to get details on sponsorship or for other information, see here.

For Help or More Information

If you need help with the HIPAA, Affordable Care Act or other 2014 health plan compliance, risk management or defense, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

Other Resources

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

Filed under: Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Tax, Uncategorized Tagged: Affordable Care Act, annual limits, Business Associate, Covered Entity, Employee Benefits, ERISA, Health Insurance, Health Plans, HIPAA, Isurance, Personal Health Information, PHI, Privacy, RE, SBC, Summary of Benefits and Communications

Strengthen Health Plan Privacy Compliance & Risk Management Using Lessons From New OCR Provider & Consumer Tools

Cynthia Marcotte Stamer — Tue, 30 Apr 2013 21:38:46 +0000

Get More Key Information By Participating in 5/21 Workshop In LA

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has developed an array of new tools to educate consumers and health care providers about the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules.

Many consumers are unfamiliar with their rights under the HIPAA Privacy Rule. With that in mind, OCR has posted a series of factsheets, also available in eight languages, to inform consumers about their rights under the HIPAA Privacy Rule. These materials are available on OCR’s website here.

The fact sheets compliment a set of seven consumer-facing videos released earlier this year on OCR’s YouTube channel. An additional video, The HIPAA Security Rule, has been designed for providers in small practices and offers an overview of how to establish basic safeguards to protect patient information and comply with the Security Rule’s requirements. The videos are available on the HHS OCR YouTube Channel at here.

OCR has also launched three modules for health care providers on compliance with various aspects of the HIPAA Privacy and Security Rules, available at Medscape.org:

Patient Privacy: A Guide for Providers at here;
HIPAA and You: Building a Culture of Compliance here; and
Examining Compliance with the HIPAA Privacy Rule here.

The Medscape modules offer free Continuing Medical Education (CME) credits for physicians and Continuing Education (CE) credits for health care professionals.

Although the materials are primarily consumer and provider focused, health plans and their sponsors, fiduciaries, administrators, business associates and others in the health plan workforce should review and incorporate the materials and principles contained in these materials as part of their own HIPAA compliance efforts. With the deadline to comply with recent amendments to the HIPAA rules in September, 2013 and enforcement and penalties rising, the insights and resources provided these rules can help strengthen compliance efforts.

Participate In 5/21 Workshop In LA To Get Other Key Information Needed To Update Compliance & Risk Management

With the September 23, 2013 enforcement date of the new Omnibus HIPAA Rulemaking changes rapidly approaching and privacy and data breach penalties and enforcement rising, health care providers, health plans, health care clearinghouses and their business associates must get moving to update business associate contracts, policies and notices and processes to meet changing HIPAA rules while managing ongoing compliance and risks.

Armed with the latest insights from serving as the scribe for the ABA JCEB annual agency meeting with the Office of Civil Rights (OCR), attorney and author Cynthia Marcotte Stamer will discuss required changes and other recommended steps and strategies that covered entities and their business associates should take to maintain HIPAA compliance and manage HIPAA and other related risks in light of the Omnibus HIPAA Rulemaking changes, new OCR guidance for health care providers about disclosures to avert threats to health or safety, recent audit and enforcement activities and other changing risks and responsibilities including:

The latest on OCR’s regulatory guidance, audit and investigation and enforcement rules, actions and strategies and their implications on covered entities and business associates;
Changes to breach notification rules and their implications on covered entities and their business associates;
Practical implications of new rules on who is covered and their responsibilities;
Required and recommended updates to policies, business associate and other agreements, privacy notices and other HIPAA compliance arrangements;
Effective training and other risk management strategies;
Planning for, investigating and mitigating PHI privacy breaches and other compliance concerns under new rules other selected events; and
Other selected strategies for coordinating HIPAA and other privacy and data breach responsibilities and risk management; and
Participant questions.

To register, review the agenda, get details on sponsorship or for other information, see here.

For Help or More Information

Other Resources

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

Filed under: Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Tax, Uncategorized Tagged: Affordable Care Act, annual limits, Business Associate, Covered Entity, Employee Benefits, ERISA, Health Insurance, Health Plans, HIPAA, Isurance, Personal Health Information, PHI, Privacy, RE, SBC, Summary of Benefits and Communications

Changing Plan Years Won’t Extend Health Plan’s Affordable Care Act Annual Limit Waiver Eligibility

Cynthia Marcotte Stamer — Mon, 29 Apr 2013 23:56:51 +0000

Changing plan years won’t extend the period that a group health plan or group or individual health insurance policy can qualify for a waiver of the annual limitation restrictions (Annual Limit Rule) of the Patient Protection & Affordable Care Act (Affordable Care Act) according to new guidance issued by the US Departments of Health & Human Services (HHS), Treasury (IRS) and Labor (DOL)(collectively, the Agencies) on April 29, 2013.

PHS §2711 as amended by the Affordable Care Act generally prohibit nongrandfathered group health plans and health insurance issuers offering group or individual health insurance coverage from imposing lifetime or annual limits on the dollar value of essential health benefits within the meaning of Affordable Care Act § 1302(b) but allow ‘‘restricted annual limits’’ with respect to essential health benefits for plan years (in the individual market, policy years) beginning before January 1, 2014 (hereafter, the Annual Limit Rule).

Interim regulations (IFR) implementing this Annual Limit Rule allowed the Secretary of HHS temporarily to waive compliance with the Annual Limit Rule for certain group health plans that showed that compliance with the IFR would result in a significant decrease in access to benefits or a significant increase in premiums and timely applied for and received a waiver in accordance with guidance established by HHS. See 26 CFR 54.9815-2711T; 29 CFR 2590.715-2711; 45 CFR 147.126. For a listing of relevant guidance, see here.

While HHS no longer allows new applications for waivers, certain group health plans previously timely applied and qualified to for waiver of compliance for the Annual Limit Rule for their group health plan for the plan or policy year in effect when the plan or issuer applied for the waiver. Many of these group health plans later extended and currently continue to qualify for relief from the obligation to comply with the Annual Limit Rule based on extensions of that waiver.

According to FAQs About Affordable Care Act Implementation (Part XV), changes in plan or policy years made subsequent to the application for an Affordable Care Act Annual Limitation waiver do not extend the expiration date of a waiver.

In the FAQ, the Agencies state changes in plan or policy years made after the waiver is obtained and while a waiver remains in effect do not change the termination date of an otherwise applicable waiver. Rather, Annual Limit Rule waivers are granted based on the date of the plan or policy year in effect when the initial application was submitted regardless of whether the plan or issuer later amends its plan or policy year. That said, the FAQ confirms that waiver recipients may end the waiver at any time prior to its otherwise applicable approved expiration date.

The Guidance nixes hopes of many group health plans and insurers that obtained waivers that they could extend temporarily their ability to avoid complying with the Annual Limit Rule by cutting short their current plan or policy year so as as to cause a new plan year to start before January 1, 2014. The idea suggested by some was that starting a plan year mid-year during 2013 would push back the start of the first plan or policy year beginning after December 31, 2013, and thereby delay the deadline for complying with the Annual Limit Rule until a later day in 2014. Today’s Guidance makes clear that the Agencies do not intend to allow such delays. Therefore, group health plans and health insurance issuers with current waivers should be ready to begin complying with the Annual Limit Rule no later than the date that their existing waiver is scheduled to expire and budget accordingly.

For Help or More Information

Other Resources

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

Deadline To Send ACA Summary of Benefits & Coverage Adds Pressure To Finalize 2014 Plan Designs As Agencies Add MEC & MV Disclosures To SBC

Cynthia Marcotte Stamer — Thu, 25 Apr 2013 12:37:08 +0000

Employer and union group health plan sponsors and insurers of group and individual health plans (Health Plans) agonizing over 2014 health plan design decisions need to keep in mind that impending deadlines to update and deliver required Summary of Benefits and Communications (SBC) disclosures mandated by the Patient Protection and Affordable Care Act (Affordable Care Act) shorten the time to finalize decisions including new requirements to disclose whether the Affordable Health Plan-covered Health Plans provide “minimum essential coverage” (MEC) and “minimum value” within the meaning of the Affordable Care Act.

The Affordable Care Act’s requirement that Health Plans distribute updated SBCs before the beginning of the enrollment period for coverage to be provided in 2014 creates added urgency and pressure for Health Plans and their employer and other sponsors to finalize and implement their decisions on their Health Plans 2014 plan designs and coverages to allow adequate lead time to prepare and deliver the required SBCs for 2014.

The Departments of Health & Human Services (HHS), Labor (DOL) and Treasury (IRS)(collectively, the Agencies) announced April 23, 2013 that SBCs for periods of coverage after December 31, 2013 must disclose if the Health Plans provide MEC and minimum value. Health Plans, their sponsors, fiduciaries, and insurers generally will need to update their Health Plans’ SBCS to include these disclosures as well as to incorporate other changes necessary to accurately disclose other plan design changes made to post-December 31, 2013 coverage before the enrollment period begins. Plan sponsors planning changes to their health plans must allow sufficient lead time to finalize plan designs and contracts, amend plan documents, make MEC and minimum value determinations, and then timely update and distribute the SBC in accordance with the SBC rules. This means that most plan sponsors of Health Plans have much less time than historically used to finalize their decisions.

ACA SBC Mandate Overview

As amended by the Affordable Care Act amended the Public Health Services Act (PHS) § 2715, Employee Retirement Income Security Act (ERISA) § 715 and the Internal Revenue Code (Code) §§ 9815 require that Health Plans provide a SBC and a “Uniform Glossary” that “accurately describes the benefits and coverage under the applicable plan or coverage” in a way that meets the format, content and other detailed SBC standards set for the Affordable Care Act as implemented by the Departments regulatory guidance.

The Summary of Benefits and Coverage and Uniform Glossary Final Regulation (Final Regulation) implementing this requirement published February 14, 2012 generally requires Health Plans at specified times including before the first offer of coverage under the Plan as well as following certain material changes to the Plan. For Health Plans providing group health plan coverage, FAQs About Affordable Care Act Implementation (Part VII)[*] set the deadline for Health Plan to deliver a SBC as follows, while at the same time indicating that the Departments would not impose penalties on plans and issuers “working diligently and in good faith” to provide the required SBC content in an appearance consistent with the Final Regulations:

To covered persons enrolling or re-enrolling in an open enrollment period (including late enrollees and re-enrollees) as the first day of the first open enrollment period that begins on or after September 23, 2012; and
For individuals enrolling in coverage other than through an open enrollment period (including individuals who are newly eligible for coverage and special enrollees) as the first day of the first plan year that begins on or after September 23, 2012. See FAQs About Affordable Care Act Implementation (Part VIII).

The Final Regulation and other existing guidance generally dictates that Health Plans follow a required template for providing the SBC and accompanying glossary. When publishing the Final Regulation, the Departments also published the required SBC template form (2013 SBC Template) and instructions for Health Plans to use to prepare and provide the required SBC for coverage beginning before January 1, 2014 and promised updated guidance and templates for use in providing SBCs for post-2013 coverage. While the Agencies clarified certain other details about the SBC rules, they did not materially change the required content or form of the 2013 SBC Template until their April 23, 2013 release of FAQs About Affordable Care Act Implementation (Part XIV). See e.g. FAQs About Affordable Care Act Implementation Part IX and Part X.

FAQ Part XIV Updates To SBC

FAQs About Affordable Care Act Implementation (Part XIV) published April 23, 2013 announces the updated required 2014 SBC Template that the Agencies are requiring to SBCs for periods of health coverage from January 1, 2014 to December 31, 2014. Along with the 2014 SBC Template, the Agencies also published 2014 Sample Completed SBC, which provides an example of a SBC completed for a hypothetical health plan prepared by the Agencies.

The 2014 SBC Template updates the 2013 SBC Template and Sample Completed Template to add information the Agencies believe individuals eligible for Health Plan coverage should know in light of the impending implementation of the individual shared responsibility requirements of Internal Revenue Code (Code) § 5000A and the employer shared responsibility rules of Code § 4980H commonly called the Affordable Care Act’s “pay-or-play” rules. These were the “penalty” provisions that the Supreme Court ruled are taxes last Summer.

Rationale For SBC Changes

Beginning in 2014, Code § 4980H generally requires employers of 50 or more full-time employees to pay a penalty if the employer fails to offer a group health plan providing MEC and meeting the “minimum value” requirements of the Affordable Care Act. Code § 36B(c)(2)(C)(ii) provides that an employer-sponsored Health Plan provides MV if the ratio of the share of total costs paid by the Health Plan relative to the total costs of covered services is no less than 60% of the anticipated covered medical spending for covered benefits paid by a group health plan for a standard population, computed in accordance with the plan’s cost-sharing, and divided by the total anticipated allowed charges for covered benefits provided to a standard population is no less than 60%. See Patient Protection and Affordable Care Act: Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation Regulation. HHS has published a MV Calculator for use in calculating this percentage.

Meanwhile, Code § 5000A generally imposes a penalty tax on individuals that fail to maintain enrollment in “minimum essential coverage” (MEC) within the meaning of Code § 5000A(f) and not otherwise exempt under Code § 5000A(d).

SBC Changes Required By FAQs XIV In Response To Pay-Or-Play Rules

Since choosing to enroll in an employer-sponsored health plan providing MEC is one of the options that individuals can choose to avoid incurring the individual penalty under Code § 5000A, the Agencies feel that the SBC should disclose whether the offered Health Plan provides MEC and provides the requisite Minimum Value. Accordingly, the 2014 SBC Template requires that the SBC disclose if the Health Plan provides MEC and meets Minimum Value. The Agencies did not make any changes to the uniform glossary, Instructions for Completing the SBC, “Why This Matters” language, or to the coverage examples for the SBC.

In general, the SBC requires that Health Plans update their existing SBCs to make the following disclosures for post-December 31, 2013 periods of coverage:

”Does this Coverage Provide Minimum Essential Coverage?

The Affordable Care Act requires most people to have health care coverage that qualifies as “minimum essential coverage.” This plan or policy [does/does not] provide minimum essential coverage.

Does this Coverage Meet the Minimum Value Standard?

In order for certain types of health coverage (for example, individually purchased insurance or job-based coverage) to qualify as minimum essential coverage, the plan must pay, on average, at least 60 percent of allowed charges for covered services. This is called the “minimum value standard.” This health coverage [does/does not] meet the minimum value standard for the benefits it provides.”

Health Plans will need to finalize plan designs and conduct the necessary analysis to decide the correct way to complete this language, then update SBCs to be provided for post-December 31, 2013 periods of coverage to include the required language appropriately completed based on the findings. Where the design of the 2014 SBC is too advanced already to do this, the Guidance allows Health Plans to provide the required language by sending the language in a supplemental SBC communication. However, most Health Plans will want to avoid the added cost and expense of the printing and distribution of this notification.

Other SBC Requirement Clarifications in FAQs XIV

While the 2014 SBC Template remains unchanged other than for the additional required statements about the MEC and minimum essential coverage, FAQs XIV does provide various other helpful clarifications about how to complete the 2014 SBC Template about the applicability of lifetime and annual limits in light of the Affordable Care Act’s restrictions on these limitations.

In addition, FAQs XIV also continues for another year the guidance in:

Affordable Care Act Implementation FAQs Part VIII, Q2 (regarding the Departments’ basic approach to implementation of the SBC requirements during the first year of applicability) for another year;
Affordable Care Act Implementation FAQs Part IX, Q1 regarding the circumstances in which an SBC may be provided electronically and associated enforcement relief;
Affordable Care Act Implementation FAQs Part IX, Q8 (regarding penalties for failure to provide the SBC or uniform glossary);
Affordable Care Act Implementation FAQs Part IX, Q9 (regarding the coverage examples calculator); and related information related to use of the coverage examples calculator;
Affordable Care Act Implementation FAQs Part IX, Q10 (regarding an issuer’s obligation to provide an SBC with respect to benefits it does not insure); and
Affordable Care Act Implementation FAQs Part IX, Q13 (regarding expatriate coverage);
Current enforcement relief about the Special Rule contained in the Instruction Guides for Group and Individual Coverage and about Medicare Advantage Plans contained in Affordable Care Act Implementation FAQs Part X, Q1
Continues Affordable Care Act Implementation FAQs Part VIII, Q5 regarding use of carveout arrangements “until further guidance is issued.”
Extends to September 23, 2014 existing relief for plans and issuers with respect to an insured health insurance product is not being actively marketed where the health insurance issuer has not actively marketed the product at any time on or after September 23, 2012 provided the SBC is provided for that product no later than September 23, 2014; and
The anti-duplication rule for student group health coverage in the Final SBC regulations.

SBC Delivery Deadline Means Time Short To Finalize 2014 Plan Designs

Employer and other health plan sponsors, insurers, administrators and others involved in 2014 Health Plan decisions and preparations must take into account the deadline for distributing the SBC before the enrollment period begins and allow adequate lead time to properly finalize their Health Plan design decisions and the analysis required to accurately prepare and deliver the SBC.

Since Health Plan design decisions must be finalized to properly prepare the newly added MEC and minimum value and other required SBC disclosures, the need to prepare and distribute the SBC by the beginning of enrollment periods for post-December 31, 2013 periods of coverage means time running short to finalize 2014 plan designs. Employer and other Health Plan sponsors and others involved in 2014 Health Plan decision-making must take into account the SBC requirements and deadlines to ensure that they allow adequate time to complete the analysis and other preparations necessary timely to prepare and distribute SBCs in respond to the design decisions ultimately elected.

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Filed under: Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Insurance, Tax, Uncategorized Tagged: Affordable Care Act, Employee Benefits, ERISA, Health Insurance, Health Plans, Isurance, RE, SBC, Summary of Benefits and Communications

Study Finds Down Economy, Not Health Care Reform Accounts For Slower Health Care Cost Increases; Projects Renewed Costs When Economy Improves

Cynthia Marcotte Stamer — Tue, 23 Apr 2013 03:13:21 +0000

Bad economic times, and not health care reform, account for the record slowdown in U.S. health care spending, according to a new Kaiser Family Foundation study, Assessing the Effects of the Economy on the Recent Slowdown in Health Spending (Study). The Study findings call into question assertions by Obama Administration officials crediting health care reform, pressure on health plans applied by the Obama Administration officials and other regulatory and enforcement efforts with reducing the curve on health care costs.

According to Kaiser Foundation, government statistics show that the period from 2009-2011 had the slowest growth (3.9%) in health care expenditures since the government began tracking health expenditure data in 1960.

The Study that evaluated how the economy affects U.S. health spending concluded that economic factors beyond the health system explain 77 percent of the slowdown and predicts more rapid growth when the economy strengthens. Meanwhile, the Study credits only 23 percent of the slowdown in the growth of expenditures as resulting from higher deductibles and other cost-sharing or other health care system changes.

Based on these findings, the Study warns that Americans should expect health care costs to resume increasing in future years after lags resulting from the economic slowdown resolve.

“The problem of health costs is not solved and we need to be realistic that health spending increases will return to more typical levels as the economy improves,” Foundation President and CEO Drew E. Altman said. “But the analysis also shows that the economy is not the entire story, and if we could shave even a percentage point or more off annual health care spending increases, we could save trillions of dollars over the next decade.”

Researchers at the Kaiser Family Foundation prepared the Study by conducting statistical modeling and analysis of 50 years of health spending and economic trends using data on the U.S. economy and national health care expenditures data from actuaries at the Centers for Medicare and Medicaid Services through 2011, and from the Center for Sustainable Health Spending at the Altarum Institute for 2012.

Join Discussion By Participating In Project COPE: The Coalition On Patient Empowerment & Its Coalition on Responsible Health Policy

Want to share and exchange ideals and information about health care and collaborate about opportunities to make it work? Sharing and promoting the use of practical practices, tools, information and ideas that patients and their families, health care providers, employers, health plans, communities and policymakers can share and offer to help patients, their families and others in their care communities to understand and work together to better help the patients, their family and their professional and private care community plan for and manage these needs is the purpose of Project COPE, The Coalition on Patient Empowerment & It’s Affiliate, the Coalition on Responsible Health Policy.

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

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

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials on regulatory, investigatory or enforcement concerns.

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Filed under: 105(h), Bankruptcy, Corporate Compliance, Employee Benefits, Employers, Employment Tax, ERISA, Fair Labor Standards Act, Human Resources, I-9, Immigration, Insurance, Internal Controls, Patient Protection and Affordable Care Act, Payroll Tax, Tax, Uncategorized Tagged: ACA, Affordable Care Act, Employer, Health Care Reform, Health Plans, Insurance, Patient Protection & Affordable Care Act, Pay or Play, Shared Responsibility