HIPAA Sanctions Triggered From Covered Entity Statements To Media, Workforce

June 14, 2013

Health plans, health care providers, health care clearinghouses (covered entities) and their business associates should confirm their existing policies, practices and training for communicating with the media and others comply with the Privacy Rule requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule in light of a Resolution Agreement with Shasta Regional Medical Center (SRMC) announced by the U.S. Department of Health and Human Services (HHS) Office of Civil Rights today (June 14, 2013).

Under the Resolution Agreement, SRMC agrees to pay $275,000 and implement a comprehensive corrective action plan (CAP) to settle an investigation that resulted when SRMC used and disclosed protected health information (PHI) of a patient to members of the media and its workforce while trying to do damage control against fraud or other allegations of misconduct involving individual patient information or circumstances. The Resolution Agreement shows how efforts to respond to press or media reports, patient or other complaints, physician or employee disputes, high profile accidents, or other events that may involve communications not typically run by privacy officers can create big exposures. While the Resolution Agreement targets a health care provider, the lessons are equally applicable to health plans and health care clearinghouses, who increasingly face their own pressure to communicate with the media and others about enforcement actions, workforce claims and other matters.

Talking Out Of Turn To Media & Others Violated HIPAA

OCR investigated SRMC after a January 4, 2012 Los Angeles Times article reported two SRMC senior leaders had met with media to discuss medical services provided to a patient. OCR’s investigation indicated that SRMC failed to safeguard the patient’s protected health information (PHI) from impermissible disclosure by intentionally disclosing PHI to multiple media outlets on at least three separate occasions, without a valid written authorization. OCR’s review also revealed senior management at SRMC impermissibly shared details about the patient’s medical condition, diagnosis and treatment in an email to the entire workforce. Further, SRMC failed to sanction its workforce members for impermissibly disclosing the patient’s records pursuant to its internal sanctions policy.

Among other things, the specific misconduct uncovered by HHS’s investigation indicated that from December 13 – 20, 2011, SRMC failed to safeguard the patient’s PHI from any impermissible intentional or unintentional disclosure on multiple occasions in connection with its response to media coverage arising from a Medicare fraud story including:

On December 13, 2011, for instance, OCR reports SRMC’s parent company sent a letter to California Watch, responding to a story about Medicare fraud. The letter described the patient’s medical treatment and provided specifics about her lab results even though SRMC did not have a written authorization from the patient to disclose this information to this news outlet.
On December 16, 2011, two of SRMC’s senior leaders also met with The Record Searchlight’s editor to discuss the patient’s medical record in detail even though SRMC did not have a written authorization from the patient to disclose this information to this newspaper.
On December 20, 2011, SRMC sent a letter to The Los Angeles Times, which contained detailed information about the treatment the patient received when, again, SRMC did not have a written authorization from the patient to disclose this information to this newspaper.

In addition, OCR found SRMC impermissibly used the affected party’s PHI when on December 20, 2011, SRMC sent an email to its entire workforce and medical staff, approximately 785-900 individuals, describing, in detail, the patient’s medical condition, diagnosis and treatment. SRMC did not have a written authorization from the patient to share this information with SRMC’s entire workforce and medical staff.

SRMC Must Correct & Pay $$275K Penalty

Under the Resolution Agreement, SRMC pays a $275,000 monetary settlement and agrees to comply with a CAP for the next year.

The CAP requires SRMC to update its policies and procedures on safeguarding PHI from impermissible uses and disclosures and to train its workforce members. The CAP also requires fifteen other hospitals or medical centers under the same ownership or operational control as SRMC to attest to their understanding of permissible uses and disclosures of PHI, including disclosures to the media.

The Resolution Agreement specifically requires that Shasta Regional Medical Center, among other things:

To update policies to include specific policies about sharing PHI with the media, members of the workforce not involved in an individual patient’s care and others to comply with HIPAA;.
To provide updated policies to OCR for approval;
To provide training documented with certification of all workforce members before allowing them to get access to PHI;

SRMC is one of several Prime Healthcare Services facilities under common ownership and control. The Resolution Agreement also requires corrective action at these commonly owned facilities including California-based Alvarado Hospital Medical Center in San Diego, Centinela Hospital Medical Center in Inglewood, Chino Valley Medical Center in Chino, Desert Valley Hospital in Victorville, Garden Grove Hospital Medical Center in Garden Grove, La Palma Intercommunity Hospital in La Palma, Paradise Valley Hospital in National City, San Dimas Community Hospital in San Dimas, Shasta Regional Medical Center in Redding, and West Anaheim Medical Center in Anaheim; Saint Mary’s Regional Medical Center in Reno, Nevada; Pennsylvania based Lower Bucks Hospital in Bristol and Roxborough Memorial Hospital in Philadelphia;and Texas-based Dallas Medical Center in Dallas, Harlingen Medical Center in Harlingen, Pampa Regional Medical Center in Pampa. Among other things, the Resolution Agreement requires that for each of these related facilities:

The CEO and Privacy Officer of each facility must give OCR a signed affidavit stating that they understand that the Privacy Rule protects an individual’s PHI is protected by Privacy Rule even if such information is already in the public domain or even though it has been disclosed by the individual; and that disclosures of PHI in response to media inquiries are only permissible pursuant to a signed HIPAA authorization; and
Ensure all members of their respective workforce are informed of this policy.

The Resolution Agreement highlights the difficulty that health care providers and other covered entities often face in properly recognizing and handling PHI in the case of fraud or other disputes. While health care providers have an understandable wish to defend themselves in the media and elsewhere in response to charges of misconduct, today’s settlement shows that improperly sharing PHI of each patient in the process will make matters much worse. It’s important to keep in mind that just omitting to mention the name or other common identifying information may not overcome this concern because information about a patient can be considered individually identifiable and to enjoy protection under HIPAA where the facts and circumstances would allow another person to know or determine who the individual is, even if the specific name, address or more common identifying information is not shared.

Furthermore, the settlement also makes clear that merely because the patient or some other party has shared the same information with the media or others does not excuse the health care provider or other covered entity or business associate from the obligation to keep confidential the PHI unless it gets proper consent or otherwise can show that an exception to HIPAA applies.

Finally, the Resolution Agreement also makes clear that OCR expects covered entities to connect their HIPAA compliance with other policies and operations and will hold covered entities and associates accountable for properly integrating, training workforce and enforcing compliance with these policies. While this means that covered entities and business associates may find themselves in the uncomfortable situation of facing unsavory reports and rumors without the ability to respond, the significant civil and even criminal penalties that can arise from violation of HIPAA make it critical that covered entities exercise discipline in responding to avoid sharing PHI improperly.

The 2013 Regulations Overview

Adding a review and update of HIPAA and other policies for communicating with the media and internally on matters that may involve use or discussions of PHI in unusual contexts outside the purview of typically HIPAA policies is a good idea while health plans and other covered entities and business associates are updating their existing policies and practices for compliance with updated Omnibus HIPAA Rules (2013 Regulations) implementing HITECH Act amendments to the Privacy and Security Rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Rulemaking announced January 17, 2013 may be viewed here.

Since 2003, HIPAA generally has required that health care providers, health plans, health care clearinghouses and their business associates (“Covered Entities”) restrict and safeguard individually identifiable health care information (“PHI”) of individuals and afford other protections to individuals that are the subject of that information. The 2013 Regulations published today complete the implementation of changes to HIPAA that Congress enacted when it passed the Health Information Technology for Economic and Clinical Health (HITECH) Act in 2009 as well as make other changes to the prior regulations that OCR found desirable based on its experience administering and enforcing the law over the past decade.

Since passage of the HITECH Act, OCR officials have warned Covered Entities to expect an omnibus restatement of its original regulations. While OCR had issued certain regulations implementing some of the HITECH Act changes, it waited to publish certain regulations necessary to implement other HITECH Act changes until it could complete a more comprehensive restatement of its previously published HIPAA regulations to reflect both the HITECH Act amendments and other refinements to its HIPAA Rules. The 2013 Regulations published today fulfill that promise by restating OCR’s HIPAA Regulations to reflect the HITECH Act Amendments and other changes and clarifications to OCR’s interpretation and enforcement of HIPAA.

Among other things, the 2013 Regulations:

Revise OCR’s HIPAA regulations to reflect the HITECH Act’s amendment of HIPAA to add the contractors and subcontractors of health plans, health care providers and health care clearinghouses that qualify as business associates to the parties directly responsible for complying with and subject to HIPAA’s civil and criminal penalties for violating HIPAA’s Privacy, Security, and Breach Notification rules;
Update previous interim regulations implementing HITECH Act breach notification rules that require Covered Entities including business associates to give specific notifications to individuals whose PHI is breached, HHS and in some cases, the media when a breach of unsecured information happens;
Update interim enforcement guidance OCR previously published to implement increased penalties and other changes to HIPAA’s civil and criminal sanctions enacted by the HITECH Act;
Implement HITECH Act amendments to HIPAA that tighten the conditions under which Covered Entities are allowed to use or disclose PHI for marketing and fundraising purposes and prohibit Covered Entities from selling an individual’s health information without getting the individual’s authorization in the way required by the 2013 Regulations;
Update OCR’s rules about the rights that HIPAA requires that Covered Entities to afford to individuals who are the subject of PHI used or possessed by a Covered Entity to reflect tightened requirements enacted by the HITECH Act that allow individuals to order their health care provider not to share information about their treatment with health plans when the individual pays cash for the care and to clarify that individuals can require Covered Entities to provide electronic PHI in electronic form;
Revise the regulations to reflect amendments to HIPAA made as part of the Genetic Information Nondiscrimination Act of 2008 (GINA) which added genetic information to the definition of PHI protected under the HIPAA Privacy Rule and prohibits health plans from using or disclosing genetic information for underwriting purposes; and
Clarifies and revises other provisions to reflect other interpretations and information guidance that OCR has issued since HIPAA was passed and to make certain other changes that OCR found appropriate based on its experience administering and enforcing the rules.

Liability & Enforcement Risks Heighten Need To Act To Review & Update Policies & Practices

The new Resolution Agreement and the growing list of others like it, as well as restated rules in the 2013 Regulations make it imperative that Covered Entities review the revised rules carefully and updated their policies, practices, business associate agreements, training and documentation to comply with the updated requirements and other enforcement and liability risks. OCR even prior to the regulations has aggressively investigated and enforced the HIPAA requirements.

OCR increasingly is imposing sanctions against a covered entity for data breaches to show the potential risks of HIPAA violations are significant and growing. OCR Hits Alaska Medicaid For $1.7M+ For HIPAA Security Breach; OCR Audit Program Kickoff Further Heats HIPAA Privacy Risks; $1.5 Million HIPAA Settlement Reached To Resolve 1st OCR Enforcement Action Prompted By HITECH Act Breach Report; HIPAA Heats Up: HITECH Act Changes Take Effect & OCR Begins Posting Names, Other Details Of Unsecured PHI Breach Reports On Website; Providence To Pay $100000 & Implement Other Safeguards.

In response to the 2013 Regulations and these expanding exposures, all Covered Entities should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses; and other developments to decide if additional steps are necessary or advisable. In response to these expanding exposures, all covered entities and their business associates should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses, and other developments to decide if tightening their policies, practices, documentation or training is necessary or advisable.

Enforcement Actions Highlight Growing HIPAA Exposures For Covered Entities

The SRMC Resolution Agreement again shows the growing risk of enforcement that health care providers, health plans, health care clearinghouses and their business associates face as OCR continues its audits and enforcement, new Omnibus HIPAA Regulations implementing the HITECH Act amendments to HIPAA and state and federal liability grows.. See e.g., $1.5 Million HIPAA Settlement Reached To Resolve 1st OCR Enforcement Action Prompted By HITECH Act Breach Report; HIPAA Heats Up: HITECH Act Changes Take Effect & OCR Begins Posting Names, Other Details Of Unsecured PHI Breach Reports On Website.

In response to these expanding exposures, all covered entities and their business associates should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses, and other developments to determine if additional steps are necessary or advisable.

As part of this process, covered entities should ensure they look outside the four corners of their Privacy Policies to ensure that appropriate training and clarification is provided to address media, practice transition, workforce communication and other policies and practices that may be covered by pre-existing or other policies of other departments or operational elements not typically under the direct oversight and management of the Privacy Officer such as media relations. Media relations, physician and patients affairs, outside legal counsel, media relations, marketing and other internal and external departments and consultants dealing with the media, the public or other inquiries or disputes should carefully include and coordinate with the privacy officer both to ensure appropriate policies and procedures are followed and proper documentation created and retained to show authorization, account, or meet other requirements.

For more information about HIPAA compliance and risk management tips, see here.

For Help With Compliance, Risk Management, Investigations, Policy Updates Or Other Needs

If you need help with HIPAA and other health and health plan related regulatory policy or enforcement developments, or to review or respond to these or other human resources, employee benefit, or other compliance, risk management, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Nationally recognized for her extensive work, publications and leadership on HIPAA and other privacy and data security concerns, Ms. Stamer has extensive experience representing, advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical and other privacy and data security, employment, employee benefits, and to handle other compliance and risk management policies and practices; to investigate and respond to OCR and other 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.

A Fellow in the American College of Employee Benefit Counsel, State Bar of Texas and American Bar Association, Vice President of the North Texas Health Care Compliance Professionals Association, the Former Chair of the ABA RPTE Employee Benefit & Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Council Representative, 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 serves as the scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR. Ms. Stamer also regularly works with OCR and other agencies, 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 on HIPAA and other data privacy and security concerns 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 in 2013 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, SHRM, HIMMS, the American Bar Association, the Health Care Compliance Association, a multitude of 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.

In addition to this extensive HIPAA specific experience, Ms. Stamer also is recognized for her experience and skill aiding clients with a diverse range of other employment, employee benefits, health and safety, public policy, and other compliance and risk management concerns.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a member of the Editorial Advisory Board and expert panels of HR.com, Employee Benefit News, InsuranceThoughtLeadership.com, and Solutions Law Press, Inc., management attorney and consultant Ms. Stamer has 25 years of experience helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Ms. Stamer often has worked, extensively on these and other workforce and performance related matters. In addition to her continuous day-to-day involvement helping businesses to manage employment and employee benefit plan concerns, she also has extensive public policy and regulatory experience with these and other matters domestically and internationally. A former member of the Executive Committee of the Texas Association of Business and past Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, Ms. Stamer served as a primary advisor to the Government of Bolivia on its pension privatization law, and has been intimately involved in federal, state, and international workforce, health care, pension and social security, tax, education, immigration, education and other legislative and regulatory reform in the US and abroad. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here and reading some of our other Solutions Law Press, Inc.™ human resources news here including the following:

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Posted by Cynthia Marcotte Stamer

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

November 27, 2012

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

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

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

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

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

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

De-identification & Its Rationale Under Privacy Rule

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About The Speaker

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

Registration

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

Continuing Education Credit

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

About Solutions Law Press, Inc.™

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

Leave a Comment » | ADA, Civil Rights, Consumer Protection, Corporate Compliance, Data Security, Disease Management, Drug & Alcohol, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Medicare Part D, Prescription Drugs, Privacy, Wellness Programs | Tagged: compliance, Health Care, Heatlh Plans, HIPAA, PHI, Texas Medical Records Privacy | Permalink
Posted by Cynthia Marcotte Stamer

10/16 NTHCPA Free Study Group Meeting On “Health Care Compliance Spooks & Goblins” Participatory Roundtable Study Group

October 14, 2012

Texas healthcare compliance professionals and other health care leaders concerned about managing their compliance risks and exposures may wish to consider joining the North Texas Healthcare Compliance Professionals Association on October 16, 2012 for lunch and a lively roundtable discussion of health care compliance concerns. “Health Care Compliance Spooks & Goblins” to be led by Erma Lee, JPS Health Network District Compliance Officer and NTHCPA President on Tuesday, October 16, 2012 from 11:30 a.m. to 1:30 p.m. at the Dallas Ft Worth Hospital Council Offices at 250 Decker Drive, Irving, TX 75062-2706. Parties wishing to take part should RSVP here by 6:00 p.m. on October 15, 2012.

With North Texas area health care providers increasingly among those targeted for attention by the high-profile HEAT Task Force and other health care fraud stings, audits, and enforcement and requirements and enforcement tightening a myriad of other compliance areas, health care world increasingly makes health care facilities and providers negotiate a challenging spookhouse full of compliance and enforcement risks for health care organizations and their compliance teams.

The NTHCPA invites health care compliance professionals and other health industry leaders to share their top compliance spooks and exchange strategies for finding and managing your health care compliance demons with other North Texas health care compliance leaders by participating in this lively participatory roundtable discussion at this month’s NTHCPA Meeting.

RSVP & Register For Invites & Updates

The meeting will be held from 11:30 a.m. to 1:30 p.m. on October 16, 2012 at the offices of the Dallas Ft Worth Hospital Council, 250 Decker Drive, Irving, TX 75062-2706.

There is no charge to take part in the meeting. To help us to arrange for adequate space and refreshments for this meeting, however, advance registration is required. RSVP here by 6:00 p.m on October 15, 2012. A complimentary light lunch will be provided for those who timely R.S.V.P. Walk in guests will be accommodated on a space-available basis. While we welcome last-minute attendees, please let us know you are coming and update us if your plans change so that we can plan for appropriate space and meals!

Mark Your Calendars & Save The Date

The NTHCPA has an exciting series of future programs planned for upcoming months. Interested persons should also mark their calendars and save the date to take part in these upcoming NTHCPA Meetings and programs:

November 20, 2012 – “After November-Lame Duck Sequestration: Implications for Health Care”

Steve Love, President, and Chief Executive Officer, Dallas-Fort Worth Hospital Council

December 18, 2012 - No Study Group Meeting In Celebration of The Holiday Season

January 15, 2013 – “Physician Compensation Compliance Risks & Performance Management Tools”

Alice L. King. National Practice Leader Physician Compensation and Alignment, Towers Watson

February 19, 2013 – “CHNAs, 501(r)(9), Governance & Other Tax Challenges Facing Exempt Organizations”

Nancy Z. Evetts, Mid-America Region Leader, Not-For Profit Tax, Deloitte Tax LLP

About the NTHCPA

NTHCPA exists to champion ethical practice and compliance standards and to provide the necessary resources for ethics and compliance Professionals and others in North Texas who share these principles. The vision of NTHCPA is to be a pre-eminent compliance and ethics group promoting lasting success and integrity of organizations within North Texas.

Would you or someone you know like to join the NTHCPA, get notice of upcoming meetings or events and network on relevant professional developments with other health care professionals? Stay on top of information about upcoming meetings and share and dialogue with other NTHCPA members about health care compliance challenges and developments by participating in our meetings and events, joining our Linked In Group here and checking out the NTHCPA News here. To be added to our invitation list, we also encourage interested persons to make sure we have your current contact information by sending your current contact information including name, title, company, preferred mailing address, e-mail, and telephone number to Vice-President Cynthia Marcotte Stamer here.

Please share this invitation with others who might be interested in this topic or other NTHCPA events!

Stay In Touch. Check Out NTHCPA’s Newsletter, the NTHCPA News here!

Leave a Comment » | Uncategorized | Tagged: Events, Health Care, Health Care Fraud, Health Care Risk Management, Hospital, Medicare, Meetings, Physicians | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks On HIPAA Developments On 9/14 At ABA Joint Tax/RPTE Fall Meeting In Boston

August 14, 2012

Cynthia Marcotte Stamer will discuss recent HIPAA and other medical privacy developments impacting group health plans at a joint “Employee Benefits Welfare Benefits Design, EEOC and FMLA Update X “ session scheduled from 9:30 a.m. to 11:00 a.m. on September 14, 2012 at the American Bar Association jointly hosted by the Subcommittees on Welfare Plan Design, EEOC, FMLA and Leaves Issues (TX) and Cafeteria Plans and Reimbursement Accounts and Subcommittee on Welfare Plans at the American Bar Association Section of Taxation and Section of Real Property, Trust & Estate Law, Trust & Estate Division (RPTE) 2012 Joint Fall CLE Meeting In Boston.

Ms. Stamer will be among the a distinguished group of panelists scheduled to discuss regulatory and other developments under the Affordable Care Act and emerging issues related to stop-loss coverage, claims procedures, COBRA audits, DOL compliance initiatives, HIPAA/HITECH audits and enforcement (and regulations if released) and other concerns impacting health and welfare plan design and administration.

A noted Texas-based employee benefits and employment lawyer, policy consultant, author and speaker, Ms. Stamer has serves as the Scribe for the ABA JCEB Agency Meeting on the HIPAA Privacy Rules with the HHS Office of Civil Rights and has extensive experience on HIPAA and other health, financial, and other privacy and data security concerns as well as a broad range of other human resources, employee benefits and health care concerns.

A Fellow in the American College of Employee Benefits Counsel, the American Bar Association and the State Bar of Texas, Past Chair of the RPTE Employee Benefits and Other Compensation Group and current co-Chair of its Welfare Benefits Committee, Ms. Stamer is nationally and internationally known for her innovative leadership and work with businesses, governments, and communities on health and other insurance and employee benefits, patient education and empowerment, wellness and disease management, and other programs, policies, and processes. For more than 24 years, Ms. Stamer’s legal practice has focused on advising and representing employers, insurers, health care providers, community leaders and governments about health care and employee benefits policy and process improvement, quality, performance management, education, compliance, communications, risk management, reimbursement and finance, and other related matters. In addition to her legal practice, Stamer also extensively consults and provides leadership to a broad range of clients, professional and civic organizations, and others on strategies for improving the health care system and the ability of health care providers, payers, employers, community organizations, government agencies to promote the ability of patients and their families to access cost-effective, quality, affordable health care and other resource needs. She also has worked extensively with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters.

Author of the hundreds of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also regularly conducts training and speaks on these and other management, compliance and public policy concerns.

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

Ms. Stamer will speak along a distinguished group of governmental and private panelists. Other panelists include:

Kevin Knopf, Attorney-Adviser, Office of Benefits Tax Counsel, Department of Treasury, Washington, DC;
Stephen B. Tackney, Deputy Associate Chief Counsel, Employee Benefits, Office of Division Counsel/Associate Chief Counsel, TE/GE, IRS, Washington, DC;
Russ Weinheimer, Senior Counsel, Office of the Chief Counsel, Tax Exempt and Government Entities, IRS, Washington, DC;
Amy Turner, Senior Advisor, Department of Labor, Employee Benefits Security Administration, Washington, DC;
Andy R. Anderson, Morgan Lewis, Chicago, IL; Chad R. DeGroot, Laner Muchin, Chicago, IL;
William M. Freedman, Dinsmore & Shohl LLP, Cincinnati, OH;
Bernard Kearse, Kearse Law Firm, Atlanta, GA;
Elizabeth Leight, Society of Professional Benefit Administrators, Chevy Chase, MD;
Gabriel Marinaro, Dykema, Bloomfield Hills, MI;
Linda Mendel, Vorys Sater Seymour & Pease LLP, Columbus, OH; Carrie A. Simons, Ropes & Gray, Boston, MA; Mark Stember, Kilpatrick Townsend & Stockton LLP, Washington, DC

To register or learn more about the Joint Fall CLE Meeting, see here. For additional information about Ms. Stamer, see here or contact Ms. Stamer directly via email here or (469) 767-8872.

Leave a Comment » | Employers, ERISA, Fiduciary Responsibility, Health Plans, HIPAA | Tagged: Employee Benefits, Health Care, Health Plans, HIPAA, Tax | Permalink
Posted by Cynthia Marcotte Stamer

HIPAA & Texas Law Require HIPAA Training. Register Now For August 14 HIPAA Update Workshop!

August 8, 2012

Texas House Bill 300 Medical Records Privacy Act Amendments & HIPAA Regulations Require HIPAA Privacy Training!

Register Now!

HIPAA Update

August 14, 2012

12:30 P.M.-2:30 P.M. Eastern | 11:30 A.M.-1:30 P.M. Central | 10:30 A.M-12:30 P..M. Mountain | 9:30 A.M-11:30 A.M. Pacific

Texas Department Of Insurance Continuing Education Credit, HRCI and World At Work Education Credit Approved!

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

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

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

Solutions Law Press, Inc. invites you to catch up on the latest on these and other key HIPAA requirements and enforcement and learn tips for managing risks and liabilities by participating in the “HIPAA Update Workshop” on Tuesday, August 14, 2012. Participants may choose to attend the live briefing in Addison, Texas or participate via WebEx for a registration fee of $125.00. Texas Department of Insurance Continuing Education Credit and other professional certification credit may be requested by qualifying participant for an added charge.

Learn Latest On HIPAA & Texas House Bill 300 Privacy, Security & Breach Notification Guidance & Enforcement

The HIPAA Update Workshop will brief participants on the latest HIPAA Privacy, Security and Breach Notification rules and guidance and share compliance and risk management lessons emerging from recent OCR enforcement and audit activities and other selected federal and state litigation and enforcement actions impacting the handling of protected health information. Among other things, the workshop will cover:

√ Latest HIPAA Privacy, Security & Breach Notification Rules, Guidance & Enforcement

√Latest on Texas House Bill Amendments To Texas Medical Records Privacy Law Effective September 1, 2012

√Post HITECH Act Heightened Liability Risks: Audits, Civil Penalties, Criminal Penalties & State Lawsuits

√ Expansion of HIPAA Responsibilities & Liabilities To Business Associates & What Covered Entities & Business Associates Should Do In Response

√ HIPAA Data Breach Notification Requirements & Practical Challenges & Strategies For Managing These Responsibilities

√ HIPAA Compliance & Risk Management Coordination With Other Federal & State Medical Privacy, Financial Information, Identity Theft & Date Security Responsibilities

√ Breach Preparedness & Response Planning

√ Practical Steps & Best Practices For Compliance & Risk Management

√ Practical Strategies For Monitoring & Responding To New Requirements & Changing Rules

√ Participant Questions

√ More

About The Speaker

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

Registration

Registration Fee per course is $125.00 per person (plus an additional $10 service fee for each individual seeking Texas Department of Insurance Continuing Education Credit). Registration Fee Discounts available for groups of three or more. Payment required via website registration required 48 hours in advance of the program to complete registration. Payment only accepted via website PayPal. No checks or cash accepted. Persons not registered at least 48 hours in advance will only participate subject to system and space availability.

*Tex. Dept. of Insurance, HRICI, WorldAtWork, CLE & Other Continuing Education Credit

These programs are approved to be offered for general certification credit by the Texas Department of Insurance, HRCI and WorldAtWork education credit for the time period offered subject to fulfillment all applicable accrediting agency requirements, completion of required procedures and payment of the additional service processing fee of $10.00. An application for State Bar of Texas continuing education legal education credit is pending. The Texas Department of Insurance has approved the HIPAA Update program is approved for 1.5 hours of General Credit and .5 Hours of Ethics Credit. The applicable credentialing agency retain the final authority to determine whether an individual qualifies to receive requested continuing education credit. Neither Solutions Law Press, Inc., the speaker or any of their related parties guarantees the approval of credit for any individual or has any liability for any denial of credit. Special fees or other conditions may apply. CANCELLATION & REFUND POLICY: In order to receive credit, cancellation (either fax or mail) must be received at least 48 hours in advance of the meeting and are subject to a $10.00 refund processing fee. Refunds will be made within 60 days of receipt of written cancellation notice.

Check Out Our Health Plan-U & Other Workshops Including:

HIPAA Update*

August 14, 2012

11:30 A.M.-1:00 P.M. Central

Health Plan Communications Update: SBCs, SPDs & Beyond*

August 28, 2012

11:30 A.M.-1:00 P.M.

About Solutions Law Press, Inc.™

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

Leave a Comment » | Uncategorized | Tagged: compliance, Health Care, Heatlh Plans, HIPAA, PHI, Texas Medical Records Privacy | Permalink
Posted by Cynthia Marcotte Stamer

DC Court Enjoins Implementation of NLRB Poster Rule

April 17, 2012

The District Court for the District of Columbia today (April 17, 2012) granted employers a temporary reprieve from the obligation to comply with a National Labor Relations Board (NLRB) poster mandate scheduled to take effect April 30, 2012.

The NLRB rule that was scheduled to take effect on April 30 would dictate that most private sector employers post a 11-by-17-inch notice informing workers of certain union organizing and other labor-management relations rights under the National Labor Relations Act using language dictated by the NLRB. The notice is available at no cost from the NLRB through its website, which has more information on posting requirements and NLRB jurisdiction.

Facing litigation challenging the rule, the NLRB announced on December 23, 2011 that it would delay the deadline to comply with the rule until April 30, 2012. Today’s court ruling enjoins the NLRB from enforcing the new requirement pending additional litigation.

In addition to the D.C. Circuit Court’s decision, a South Carolina Court also recently issued rulings questioning the NLRB’s enforcement mechanisms under the impending rule.

In response to today’s D.C. Circuit Court decision, NLRB Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.” Nevertheless, the NLRB announced today thaat it plans to delay further implementation of the poster rule by its regional offices pending the outcome of the impending litigation.

While the poster requirement is delayed, the NLRB continues to pursue an active regulatory and enforcement agenda. See, e.g., Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board. Employers should continue to strengthen their labor-management policies and practices to mitigate the growing labor exposures that result from this activist agenda.

For Help or More Information

If you need help with labor and employment or other human resource, performance management, internal controls or compliance and risk management matters, please contact the author of this article, Cynthia Marcotte Stamer. Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.

Widely published on worker classification and other workforce risk management and compliance concerns, the immediate past-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee and current Co-Chair of its Welfare Plan Committee, Vice Chair of the ABA TIPS Section Employee Benefits Committee, a Council Representative of the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, worker classification, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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:

About Solutions Law Press

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

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.

Leave a Comment » | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: department of labor, Employment, Health Care, Independent Contractor, Overtime, payroll tax, Wage & Hour, Worker Classification | Permalink
Posted by Cynthia Marcotte Stamer

March 21 New Deadline To Comment On Proposal To Extend Minimum Wage, Overtime Rules To In Home Care Workers

March 9, 2012

The U.S. Department of Labor’s Wage and Hour Division (WHD) has extended until March 12 the comment period for its proposed rule to provide minimum wage and overtime protections for nearly 2 million workers who provide in-home care services. See here.

In December, 2011, the WHD published a proposed rule that would expand minimum wage and overtime protections to all home care workers employed by third parties, such as staffing agencies. It also would clarify that individuals performing skilled in-home care work are entitled to minimum wage and overtime pay. However, individuals engaged by families for true companionship or fellowship activities, such as visiting with friends or pursuing hobbies, still would be considered “companions” and not be required to meet the act’s labor standards provisions. See Notice of Proposed Rulemaking [1] (NPRM).

Among other things, the NPRM proposes to revise the companionship and live-in worker regulations under the Fair Labor Standards Act (FLSA):

To more clearly define the tasks that may be performed by an exempt companion;
To limit the companionship exemption to companions employed only by the family or household using the services; and
To provide that third party employers, such as in-home care staffing agencies, could not claim the companionship exemption or the overtime exemption for live-in domestic workers, even if the employee is jointly employed by the third party and the family or household.

When Congress expanded protections to “domestic service” workers in 1974, it exempted casual babysitters and companions for the aged and inform from both the minimum wage and overtime pay requirements of the FLSA and exempted live-in domestic workers from the overtime pay requirement only. While WHD has left regulations governing this exemption substantially unchanged since first issued in 1975, it now believes the in-home care service industry. workers employed by in-home care staffing agencies are not the workers that Congress envisioned in enacting the companionship exemption (i.e., neighbors performing elder sitting).

As a result of these determines, WHD is moving to modify its existing rules to broaden protections for professionally employed home care workers as well as outreaching to inform employers and workers about the requirements that it perceives employers of these workers must meet.

The proposed tightening of regulations for home health workers follows a general toughening by WHD of its regulation and enforcement of wage and hour laws in the health care industry. See, e.g. Home health care company in Dallas agrees to pay 80 nurses more than $92,000 in back wages following US Labor Department investigation; US Department of Labor secures nearly $62,000 in back overtime wages for 21 health care employees in Pine Bluff, Ark.; US Department of Labor initiative targeted toward increasing FLSA compliance in New York’s health care industry; US Department of Labor initiative targeted toward residential health care industry in Connecticut and Rhode Island to increase FLSA compliance; Partners HealthCare Systems agrees to pay 700 employees more than $2.7 million in overtime back wages to resolve U.S. Labor Department lawsuit; US Labor Department sues Kentucky home health care provider to obtain more than $512,000 in back wages and damages for 22 employees; and Buffalo, Minn.-based home health care provider agrees to pay more than $150,000 in back wages following US Labor Department investigation.

Many have expressed concerns about the potential added costs that changes proposed in the NPRM would trigger in providing in home health and companion care for aging and disabled family members. The extension of the comment deadline provides added time for members of the public concerned about these rules to share their input.

Whether or not the proposed rule is adopted, the growing aggressiveness of the WHD and private plaintiffs to bring actions against employers violating minimum wage and overtime rules means health care and others employing home care workers should take well-documented steps to manage their risks. These employers should both confirm the adequacy of their practices under existing rules, as well as evaluate and begin preparing to respond to the proposed modifications to these rules. In both cases, employers of home care or other health care workers are encouraged to critically evaluate their classification or workers, both with respect to their status as employees versus contractor or leased employees, as well as their characterization as exempt versus non-exempt for wage and hour law purposes. In addition, given the nature of the scheduled frequently worked by home care givers, their employers also generally should pay particular attention to the adequacy of practices for recordkeeping.

For Help or More Information

If you need help with these and other human resources or health care concerns controls matters, please contact the author of this article, Cynthia Marcotte Stamer. Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.

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NLRB Report Shows Rise In Unfair Labor Practice Complaints & Formal Proceedings

March 9, 2012

The National Labor Relations Board Summary of Activities for Fiscal Year 2011 (Summary) released by NLRB Acting General Counsel Lafe Solomon this week reflects the increased activism and streamlined handling of matters by the NLRB in 2011

Statistics in the Summary reflect an increase in unfair labor practice complaints as well as an increase in the number of complaints that NLRB Regional offices found to merit formal prosecutions. According to the Summary, In FY 2011, the Regional Offices issued 1,342 complaints as compared to 1,243 in FY 2010. In addition to issuing almost 100 more complaints, the percentage of unfair labor practice cases in which a Regional Director determined that formal proceedings were warranted (the merit factor) rose from 35.6% in FY 2010 to 37%. Since 1980, the merit factor has fluctuated between 32% and 40%.

In addition to these results, the General Counsel chose to highlight accomplishments by the NLRB in expediting the handling of investigations and proceedings in several areas. NLRB cut its working inventory of cases by moving matters through faster. The working inventory of cases at the end of FY 2011 was 4,421, compared to 4,063 at the end of FY 2010. Other processing efficiency highlights included:

91.7% of all initial elections were conducted within 56 days of the filing of the petition.
Initial elections in union representation elections were conducted in a median of 38 days from the filing of the petition.
A 93% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
The Regional Offices won 87% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2011.
A total of $60,514,922 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, with 1,644 employees offered reinstatement.
The Agency exceeded two of its three ambitious overarching goals and came close to achieving the third, closing 84.7% of all representation cases within 100 days (target 85%), 72.5% of all unfair labor practice cases within 120 days (target 71.2%), and 83.2% of all meritorious unfair labor practice cases within 365 days (target 80.2%). The target for each 2011 overarching goal was higher than in FY 2010 and has been increased for FY 2012.
Agency representatives participated in over 600 outreach events during FY 2011.

Other statistics of note include:

The NLRB”s total case intake during FY 2011 declined to 24,990, compared to 26,585 cases in FY 2010, representing a 5.9% decrease in overall intake. Unfair labor practice case intake declined 5.1% compared to 2010..Total representation case intake declined 2,813, a 12.2% decrease from the FY 2010.
Petitions filed in certification and decertification decreased 11.2% from 2,969 in FY 2010 to 2,634 in FY 2011. Petitions filed in unit deauthorization, unit amendment and unit clarification (UD, AC and UC) cases decreased by 23.8% from the previous year’s intake, with the filing of 179 petitions in FY 2011 compared to 235 filed in FY 2010.

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Sullivan University System to Pay $483,000 in Back Wages Overtime Violations Stemming From Worker Misclassifications

March 8, 2012

Sullivan University System, Inc. learned the hard way that U.S employers that misclassify workers as independent contractors, as exempt for wage and hour law purposes or otherwise increasingly risk investigation and enforcement from federal and state agencies targeting perceived misclassification abuses.

Following an investigation by the Labor Department’s Wage and Hour Division, Kentucky based Sullivan University System Inc. will pay $483,201 in back wages to 248 employees who the Department found it wrongfully denied overtime pay while working as admissions officers and high school representatives. The investigation found that employees were incorrectly classified as exempt from the overtime provisions of the Fair Labor Standards Act and the employer failed to keep accurate records of the employees’ hours.

The Sullivan University System, Inc. settlement provides another example of the growing risks that U.S. employers face from misclassifying workers as exempt employees for purposes of wage and hour and overtime laws. As a result of the mischaracterization of workers as contractors that the Labor Department determined to qualify as employees for purposes of wage and hour and overtime laws, the Labor Department found the employer failed to pay required overtime and to maintain required time records in violation of the Fair Labor Standards Act.

Wage and hour laws are only one of a myriad of areas in which the Department of Labor, Internal Revenue Service and other federal and state regulators increasingloy are scrutinizing worker classifications to uncover violations of applicable law resulting from the mischaracterization of workers as exempt or as non-employee service providers.

The Obama Administration is targeting employers that misclassify workers for enforcement.

Agency officials and members of Congress have sent numerous messages to U.S. employers to clean up their worker classification practices. For instance, Labor Department enforcement actions increasingly show its employer misclassification audit and enforcement emphasis. See, e.g.Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Backpay Settlement; $1 Million + FLSA Overtime Settlement Shows Employers Should Tighten On-Call, Other Wage & Hour Practices.

Meanwhile, the Internal Revenue Service (IRS) continues to conduct worker classification audits while encouraging employers to self correct existing payroll tax misclassifications by participating in a new Voluntary Worker Classification Settlement Program (“Settlement Program”) announced in September. However the limited scope of the relief provided makes use of the program challenging for most employers. See New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks; Medical Resident Stipend Ruling Shows Health Care, Other Employers Should Review Payroll Practices; Employment Tax Takes Center Stage as IRS Begins National Research Project , Executive Compensation Audits.

While these and other agencies continue to keep the heat up on employers that misclassify workers, Congress also continues to consider legislation that would further clarify and tighten worker classification rules. See e.g., Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny; New IRS Worker Classification Settlement Program and Its Risks.

In her November 3, 2011 testimony to the House Subcommittee on Workforce Protections Committee on Education and the Workforce, U.S. Labor Department Wage & Hour Division (WHD) Deputy Administrator (WHD) Nancy Leppink confirmed that the Labor Department is joining a growing list of federal and state agencies that are making ending employee misclassification an audit and enforcement priority. Ms Leppink testified that “employee misclassification is a serious and, according to all available evidence, growing problem” that the Obama Administration is “committed to working to end.” See Testimony of Nancy J. Leppink, Deputy Wage and Hour Administrator, Wage and Hour Division, U.S. Department of Labor before the Subcommittee on Workforce Protections, Committee on Education and the Workforce, U.S. House of Representatives (November 3, 2011).

Her testimony also makes clear that interagency coöperation and sharing of information among agencies is an increasingly valuable tool to this effort. Ms. Leppink told the Subcommittee that the Labor Department is a part of a multi-agency Misclassification Initiative that seeks to strengthen and coördinate Federal and State efforts to enforce violations of the law that result from employee misclassification.

According to Ms. Leppink, the WHD’s exchange of information about investigations with other law enforcement agencies is as “particularly important with respect to our efforts to combat the violations of our laws that occur because of employees who are misclassified as independent contractors or other non-employees.” On September 19, 2011 the Labor Department and Internal Revenue Service (IRS) signed a Memorandum of Understanding (MOU) to share information about investigations with each other. The MOU helps the IRS investigate if employers the Labor Department has found in violation of federal labor laws have paid the proper employment taxes. Similarly, the WHD also entered into MOUs with several state labor agencies that allow the Labor Department to share information about its investigations and coordinate misclassification enforcement when appropriate.

“These agreements mean that all levels of government are working together to solve this critical problem,” she said.

Employers Urged To Audit & Strengthen Worker Classification Practices

As Federal and state regulators take aim at misclassification abuses, U.S. employers need to review each arrangement where their business receives services that the business treats as not employed by their business, as well as any employees of their business that the business treats as exempt employees keeping in mind that they generally will bear the burden of proving the appropriateness of that characterization for most purposes of law.

To guard against these and other growing risks of worker classification, employers receiving services from workers who are not considered employees for purposes of income or payroll should review within the scope of attorney-client privilege the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies and consult with qualified legal counsel about the advisability to adjust these practices to mitigate exposures to potential IRS, Labor Department or other penalties associated with worker misclassification.

Review and management of these issues is particularly timely in light of the opening by the Internal Revenue Service (IRS) of a new settlement program for resolving payroll tax issues resulting from misclassification. Given broader labor and other risks, however, before taking advantage of a new Internal Revenue Service program offering employers the opportunity to resolve potential payroll tax liabilities arising from the misclassification of workers, employers should consider and develop a risk management their overall worker misclassification liability exposures. See “New IRS Worker Classification Settlement Program and its Risks,” in the January, 2011 issue of the Dallas Bar Journal To read her article, see page 8 of the January, 2012 Dallas Bar Journal here.

For Help or More Information

If you need help with worker classification or other human resources or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer. Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.

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New DOL Final Rules Tighten Requirements For Employers To Hire Alien Workers Using H-2B Visas

February 21, 2012

Employers of workers relying on H-2B visas for eligibility to work will need to update their practices to comply with a new Final Rule on the H-2B program issued February 21, 2012 by the Department of Labor’s Employment and Training Administration and Wage and Hour Division.

Effective April 23, 2012, the Final Rule amends Labor Department regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program. Among other things, the Final Rule:

Revises the process by which employers obtain a temporary labor certification from the Labor Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status;
Establishes new rules providing increased worker protections for both U.S. and foreign workers;
Creates a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs;
Contains provisions to enhance recruitment of U.S. workers from across the country;
Increases the amount of time during which U.S. workers must be recruited and hired; and
Requires the rehiring of former employees when available.

U.S. employers need to exercise care to properly manage and maintain appropriate documentation showing compliance with applicable Visa, I-9 eligibility to work, and other applicable Immigration and Customs law requirements impacting their recruitment and employment of foreign and other workers. Violation of these requirements can expose employers to substantial civil and even criminal liability. At the same time, all employers also need to tread carefully to manage the significant employment discrimination liabilities that can arise from charges of improper discrimination against workers in violation of national origin, race and other federal and state nondiscrimination laws. See, e.g. Manufacturer’s Excessive I-9 Documentation Triggers Discrimination Liability.

When reviewing the adequacy of existing practices and administering these practices, employers should keep in mind the advisability of ensuring appropriate compliance and risk management of these responsibilities both with regard to workers performing services directly for their organizations in the capacity of employees, as well as workers providing services as independent contractors, leased employees or pursuant to other contracted services arrangements.

When designing and administering these processes, employers also generally should keep in mind that alien workers hired in violation of I-9 eligibility to work requirements generally still continue to enjoy the protection of the employment discrimination, wage and hour, anti-retaliation and other laws that otherwise would apply to other similarly situated employees. Accordingly, employers should exercise care to properly coördinate their responsibilities to promote their ability to demonstrate proper collection of required eligibility to work documentation, proper classification for worker classification, wage and hour and other laws, and appropriate adherence to nondiscrimination and other employment, tax and other applicable laws and regulations.

For Help or More Information

If you need help with these or other human resources, risk management or compliance or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer. Board Certified in Labor & employment Law by the Texas Board of Legal Specialization,management attorney, author and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, I-9 and other immigration and customs, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend worker classification,union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.

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NLRB Report Shows Rise In Unfair Labor Practice Complaints & Formal Proceedings

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