December 2011

Comment Deadline 1/31 On HHS Plan To Let States Define ACA “Essential Benefits” That Concerns Many

December 29, 2011

January 31, 201 is the deadline for employers, insurers, and others with concerns about the proposal of the Department of Health and Human Services (HHS) to delegate authority to individual states to decide the definition of essential benefits for purposes of the state exchange and other requirements of the Patient Protection and Affordable Care Act (Affordable Care Act) on a state-by-state.

As part of its sweeping health care reforms, the Affordable Care Act requires that health insurance plans offered in the individual and small group markets, both inside and outside of the Affordable Insurance Exchanges (Exchanges), offer a comprehensive package of items and services, known as “essential health benefits.” The definition of “essential health benefits” also has significant implications on employers. Under the Affordable Care Act, employers that fail to provide health coverage through an insured or self-insured group health plan that provides the required package of essential health benefits will be required to make payments to help subsidize the cost for their employees to purchase qualifying health care coverage through one of the health care exchanges established pursuant to the Affordable Care Act.

HHS announced its proposal for state determination of the meaning of essential benefits in an Essential Health Benefits Bulletinc (Bulletin) published December 16, 2011. The Bulletin only addresses the services and items covered as “essential benefits” by a health plan, not the cost sharing, such as deductibles, copayments, and coinsurance. HHS says it will address the cost-sharing features in future bulletins and cost-sharing rules will determine the actuarial value of the plan.

While HHS touts its proposal for allowing flexibility to the states, many employers, insurers, union and employer-sponsored health plans and others are concerned. Organizations and individuals concerned about the proposal or its implications should act quickly to prepare and submit comments reflecting their concerns by the January 31, 2012 comment deadline.

HHS Proposal Allows State-By-State Essential Benefit Definition

As proposed in the Bulletin, HHS would give states the flexibility to decide the items and services included in the essential health benefits package required within their states in accordance with the guidance outlined in the Bulletin.

Within the limits established by HHS, states would decide the package of benefits required to be offered as “essential benefits” within their state by selecting a benchmark plan for to set the essential benefit definition for their states. In choosing the benchmark plan that will decide the required essential benefits for their state, states would be required to choose from one of four allowable health insurance plan options set by HHS:

One of the three largest small group plans in the state;
One of the three largest state employee health plans;
One of the three largest federal employee health plan options; or
The largest HMO plan offered in the state’s commercial market.

The benefits and services included in the health insurance plan selected by the state would be the essential health benefits package.

When picking a benchmark plan, HHS intends to continue to require that the states make sure their essential health benefits package at least covers items and services in at least ten categories of care specifically listed as in the Affordable Care Act as included in the definition of essential benefits. These categories are:

Essential health benefits must include items and services within at least the following 10 categories:

Ambulatory patient services
Emergency services
Hospitalization
Maternity and newborn care
Mental health and substance use disorder services, including behavioral health treatment
Prescription drugs
Rehabilitative and habilitative services and devices
Laboratory services
Preventive and wellness services and chronic disease management, and
Pediatric services, including oral and vision care.

Consequently, if a state selects a plan that does not cover all ten categories of care, HHS intends to require the state to examine other benchmark insurance plans, including the Federal Employee Health Benefits Plan, to determine the type of benefits that will be included in the essential health benefits package.

Proposal Prompts Many Questions & Concerns

HHS says that its proposed approach to allowing states to decide the definition of essential benefits “would give states the flexibility to select a plan that would be equal in scope to the services covered by a typical employer plan in their state” while allowing states and insurers to keep the flexibility to evolve the benefits package with the market as innovative plan designs emerge. However the proposal is drawing criticism from many.

When Congress enacted the Affordable Care Act, supporters touted it as ensuring that all Americans would have access to a uniform set of core benefits that the Act refers to as “essential benefits” while promoting efficiency by providing a uniform set of mandate benefits to be provided by all group health plans, health insurers and health insurance exchanges.

The proposal has raised many questions among employers and unions that sponsor self-insured group heath plans for employees and those involved in their design and administration. Since 1974, the preemptive provisions of the Employee Retirement Income Security Act of 1974, as amended (ERISA) generally have exempted single employer self-insured group health plans and their insurers from the administrative and cost burdens of complying with state insurance laws and regulations.

Among other things, critics complain that the proposal to forgo a uniform national definition will:

Drive up costs by requiring states to use as a benchmark plan programs that are much richer and most costly than the insured or self-insured benefit plans offered by most employers;
Undermine cost savings that would have resulted from the use of a uniform national definition of essential benefits;
Subject insurers, health plans, and employers and unions to conflicting regulatory obligations, create disparities;

Proposal Prompts Many Questions & Concerns

Organizations and individuals concerned about the proposal in the Bulletin will need to move quickly to share their concerns with HHS. Comments are due by January 31, 2012. Parties wishing to comment can send their comments to:EssentialHealthBenefits@cms.hhs.gov.

Comments Off on Comment Deadline 1/31 On HHS Plan To Let States Define ACA “Essential Benefits” That Concerns Many | Uncategorized | Tagged: ACA, Affordable Care Act, Employer, Essential Health Benefis, Health Insurance, Health Plan, Insurer, Mandated Benefits, medical insurance, Patient Protection & Affordable Care Act, tpa, Union | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Dallas Bar Journal Article Cautions Employers Must Take Holistic Approach To Address Worker Misclassification Risks

December 27, 2011

Cynthia Marcotte Stamer’s cautions that 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.

Ms. Stamer discusses the need for employers to take a holistic approach to assessing and addressing worker classification risks in her article, “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.

U.S employers that misclassify workers as independent contractors, as exempt for payroll or other tax, wage and hour, immigration, and a wide range of other legal purposes or otherwise increasingly risk investigation and enforcement from federal and state agencies targeting perceived misclassification abuses. While U.S. employers should review and correct as needed worker misclassifications that could result in violations laws in light of the growing enforcement emphasis and interagency coordination targeting employers that violate federal or state tax, labor and other laws by misclassifying workers, employers should evaluate and address these concerns on a holistic, rather than peice meal basis.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; 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 hear testimony and 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. Agency officials arefueling and responding to Congressional worker classification concerns by highlighting issues in Congressional testimony and other communications. In her November 3, 2011 testimony to the House Subcommittee on Workforce Protections Committee on Education and the Workforce, for instance, U.S. Labor Department Wage & Hour Division (WHD) Deputy Administrator (WHD) Nancy 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. The coordination and interrelationship of issues that Ms. Leppink testified about in her November 3 Subscommittee testimony shows that employers need to take a holistic approach in evaluating and addressing their worker classification exposures.

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.

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.

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.

Comments Off on Stamer Dallas Bar Journal Article Cautions Employers Must Take Holistic Approach To Address Worker Misclassification Risks | 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

Employers Urged To Strengthen Worker Classification Defenses As Obama Administration Targets Employers Misclassifying Workers

December 26, 2011

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.

U.S. employers should review and correct as needed worker misclassifications that could result in violations of federal wage and hour or other employment, tax or other laws in light of the growing enforcement emphasis and interagency coordination targeting employers that violate federal or state tax, labor and other laws by misclassifying workers. Testimony of a top Labor Department official confirms that the Obama Administration has employers that misclassify workers in its sights and is ready to take swift action to punish their noncompliance.

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.

Aggressive Employer Worker Classification Practices Under Seige

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

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. 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).

“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

For Help or More Information

Other Resources

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

About Solutions Law Press

1 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

2/27 Deadline For Employers To Comment On DOL Proposed Rule Changes Extending Minimum Wage & Overtime Rules To More Home Caregiver Workers

December 25, 2011

February 27, 2012 will be the deadline for interested employers to comment on changes that the U.S. Department of Labor’s Wage and Hour Division (WHD) proposes to make to its rules on when its minimum wage and overtime protections apply to workers who provide in-home care services for the elderly and infirm. The proposal will revise the companionship and live-in worker regulations under the Fair Labor Standards Act to more clearly define the tasks that may be performed by an exempt companion, and to limit the companionship exemption to companions employed only by the family or household using the services. In addition, the Department proposes 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.

If adopted as proposed, the proposed rules will significantly expand the number of home health care and other home care workers covered by minimum wage and overtime requirements. As proposed, the proposed regulation will 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.

Coupled with these and other enforcement efforts against health industry employers, WHD’s announcement of plans to tighten rules for home care givers. In connection with its announcement of the planned regulatory changes, for instance, WHD highlighted the following guidance about the wage and hour rules that employers of home care workers can anticipate being required to meet when employing these workers:

Violation of wage and hour laws exposes an employer to significant back pay awards, substantial civil penalties and, if the violation is found to be willful, even potential criminal liability.

In light of the proposed regulatory changes and demonstrated willingness of WHD and private plaintiffs to bring actions against employers violating these rules, 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.

This notice of proposed rulemaking will be available for comment beginning December 27, 2011 at www.regulations.gov. The comment period will close on February 27, 2012.

For Help With Compliance & Risk Management and Defense

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

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping 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 implement, audit, manage and defend 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. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see 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

[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

Comments Off on 2/27 Deadline For Employers To Comment On DOL Proposed Rule Changes Extending Minimum Wage & Overtime Rules To More Home Caregiver Workers | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: department of labor, Employment, Health Care, Overtime, Wage & Hour | Permalink
Posted by Cynthia Marcotte Stamer

NLRB Changes Certification Election Case Procedures

December 25, 2011

The National Labor Relations Board (NLRB) has adopted a final rule amending its election case procedures. The final rule published in the Federal Register on December 22, 2011primarily focuses on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.

Scheduled to take effect April 30, 2012, the new final rule Final Rule on Election Procedures seeks to reduce litigation. Among other things, the Final Rule:

Amends § 102.64 to expressly construe Section 9(c) of the Act and to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists;
Amends § 102.66(a) and eliminate § 101.20(c) (along with all of Part 101, Subpart C) to ensure that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation;
Amends § 102.66(d) to afford hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the subjects to be addressed and the time for filing;
Amends §§ 102.67 and 102.69 to eliminate the parties’ right to file a pre-election request for review of a regional director’s decision and direction of election, and instead to defer all requests for Board review until after the election, when any such request can be consolidated with a request for review of any post-election rulings;
Eliminates the recommendation in § 101.21(d) (as stated, along with all of Part 101, Subpart C) that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election in order to give the Board an opportunity to rule on a pre-election request for review;
Amends § 102.65 to make explicit and narrow the circumstances under which a request for special permission to appeal to the Board will be granted;
Amends §§ 102.62(b) and 102.69 to create a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and to provide that Board review of regional directors’ resolution of such disputes is discretionary; and
Eliminates part 101, subpart C of Board regulations and makes other conforming amendments.

According to the NLRB, the changes in the Final Rule will ensure that going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

Click here to read the Final Rule.

The Final Rule annoucnement was followed by the NLRB’s announcement that it is delaying the deadline for employers to comply with its employee rights notice-posting rule until April 30, 2012. However the extension does little to relieve employers from the wave of added regulatory and enforcement guidance including new social networking guidance issued coincident with the extension announcement.

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. In fact, the NLRB accompanied its extension anouncement by sharing new guidance about its position on labor law restrictions on employer regulation of social networking and other communications.

For Help or More Information

If you need help with labor managmeent relations 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 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 implement, audit, manage and defend 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. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see 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

[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

Comments Off on NLRB Changes Certification Election Case Procedures | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: aor law, department of labor, Employment, Health Care, lovertime, NLRA, NLRB, Union, Wage & Hour | Permalink
Posted by Cynthia Marcotte Stamer

NLRB Delays Deadline For Employee Labor Rights Poster Requirement To April 30

December 25, 2011

The National Labor Relations Board (NLRB) is delaying the deadline for employers to comply with its employee rights notice-posting rule until April 30, 2012. However the extension does little to relieve employers from the wave of added regulatory and enforcement guidance including new social networking guidance issued coincident with the extension announcement.

The NLRB rule will require that most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, which has additional 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 to comply with he request of the federal court in Washington, DC hearing the llegal challenge. Following the announcement, the new implementation date is April 30, 2012.

For Help or More Information

If you need help with labor managmeent relations or other human resources or internal controls matters, please contact the author of this article, Cynthia Marcotte Stamer.

Other Resources

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

About Solutions Law Press

[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

Comments Off on NLRB Delays Deadline For Employee Labor Rights Poster Requirement To April 30 | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: department of labor, Employment, Health Care, Overtime, Wage & Hour | Permalink
Posted by Cynthia Marcotte Stamer

New Labor Department Retaliation Guidance Reminder Of Retailiation Risks

December 23, 2011

U.S. employers should exercise care to guard against potential retaliation claims brought by current or former employees under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA) the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and other federal employment laws.

Retaliation claims have emerged as a leading source of liability for U.S. employers. Most U.S. labor and employment laws, as well as many other statutes prohibit companies from retaliating against employees for exercising protected rights under the law’s provisions. Challenges and risks in managing this growing source of liability has been further fueled by the U.S. Supreme Court’s ruling in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, that the anti-retaliation provisions of Title VII extend to employees who take part in investigations even if that employee does not file a complaint of retaliation. See Supreme Court Decision May Open Doors To More Retaliation Claims

In light of these risks, U.S. employers should tighten employee discipline and other practices and documentation to guard against retaliation claims.

In undertaking these risk management efforts, employers should take advantage of the insights given from three new fact sheets addressing retaliation published by the U.S. Department of Labor Wage and Hour Division (WHD) on December 23, 2011:

Fact Sheet #77A, Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at here;
Fact Sheet #77B, Protection for Individuals under the FMLA, provides general information concerning the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA and is available on the WHD website at here; and
Fact Sheet #77C, Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), provides general information concerning MSPA’s prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under or related to MSPA and is available on the WHD website at here.

The guidance comes as the WHD is proposing to adopt new rules that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services for the elderly and infirm. WHD’s focus on home health workers is an extension of its expanded regulation and enforcement efforts targeting a broad range of health care industry employers. See Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations under the Fair Labor Standards Act (FLSA).

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 and many other industries. 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.

Employers should take steps to manage compliance and other exposures under these and other federal laws, including those for engaging in prohibited retaliation. Employers should both confirm the adequacy of their practices under existing rules, as well as take steps to decrease exposures to retaliation claims.

For Help With Compliance & Risk Management and Defense

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

*WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

Comments Off on New Labor Department Retaliation Guidance Reminder Of Retailiation Risks | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: department of labor, Employment, Health Care, Overtime, Wage & Hour | Permalink
Posted by Cynthia Marcotte Stamer

HR Key Player In Managing Countrywide & Other US Discrimination Exposures

December 23, 2011

This week’s announcement by the U.S. Justice Department of the largest residential fair lending settlement in history on December 21, 2011 highlights the widening scope of exposures that U.S. businesses face under a broad range of federal Civil Rights and other discrimination laws. The settlement shows that discrimination risks are rising and that employment discrimination is only part of the problem. In addition to managing employment discrimination exposures in their employment practices, many businesses and business leaders also need to take steps to adequately recognize and provide policies, management controls and training to maintain compliance with federal disability and other discrimination laws prohibiting discrimination against disabled or other customers or others with whom they do business.

Human resources and other management leaders should move quickly to help their organizations manage these risks and responsibilities.

Countrywide Settlement

This week’s Justice Department settlement with Countrywide Financial Corporation and its subsidiaries (Countrywide) provides for payment of $335 million in compensation to the more than 200,000 qualified African-American and Hispanic borrowers that Federal officials allege were victims of the widespread pattern or practice of illegal discrimination against qualified African-American and Hispanic borrowers by Countrywide while Countrywide served as one of the nation’s largest single-family mortgage lenders and originated more than 4 million residential mortgage loans. Bank of America now owns Countrywide.

Federal officials charged Countrywide engaged in discriminatory mortgage lending practices against more than 200,000 qualified African-American and Hispanic borrowers from 2004 through 2008. The Justice Department claimed it uncovered a pattern or practice of discrimination involving victims in more than 180 geographic markets across 41 states and the District of Columbia. These discriminatory acts allegedly included widespread violations of the Fair Housing Act and the Equal Credit Opportunity Act, and resulted in African-American and Hispanic borrowers being charged higher rates for mortgage loans – solely because of their race or national origin.

According to Attorney General Eric Holder, today’s settlement will compensate the more than 200,000 African-American and Hispanic borrowers who were victims of discriminatory conduct, including more than 10,000 African-American or Hispanic borrowers who – despite the fact that they qualified for prime loans – were steered into subprime loans. Subprime borrowers pay higher penalties and higher interest rates, have a greater likelihood of default and foreclosure than with prime loans, and other damages.

When announcing the settlement, Attorney General Holder reaffirmed the Obama Administration’s commitment to finding and prosecuting businesses that engage in illegal discriminatory practices. To read Attorney General Eric Holder’s remarks, click here.

Discrimination Obama Administration Priority

Enforcing disability discrimination laws is a high priority of the Obama Administration Business leaders increasingly recognize the need to tighten procedures to manage disability discrimination risks.

Human resources and other business leaders often recognize human resource related discrimination risks as requiring management. The heightened emphasis of the Obama Administration on disability regulation and enforcement clearly is raising business responsibilities and exposures under these employment laws. In order to manage these exposures effectively, however, it is important that businesses and their human resources leaders do not take for granted the adequacy of their current compliance and risk management efforts in light of the Obama Administration’s aggressive regulatory and enforcement agenda in this area. See e.g., Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures In 2012; EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act; Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final GINA Regulations; EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination; Labor Secretary Comments Highlight Federal Protections & Resources To Support Veteran’s Employment Rights.

Employment discrimination risks are not the only discrimination exposures that U.S. organizations need to be concerned about, however. The Countrywide settlement joins a lengthy list of settlements and other actions by the Obama Administration against businesses and government entities for alleged violations of U.S. civil rights and other nondiscrimination laws. See, e.g. Businesses Face Rising Disability Discrimination Enforcement Risks; New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks; Incentives To Get Employee Into Wellness Education Requires Legal Risk Management; New School Racial Accommodation Guidance Gives Important Insights For Schools & Other Organizations On Obama Administration Affirmative Action Enforcement; Justice Department Landlord Suit Shows Businesses Face Rising Disability Discrimination Enforcement Risks; Big Penalty for Lender Shows Risks of Violating Military Service or Vets Rights; OCR Requires Rhode Island DHS To Provide Translation, Other Services For Limited English, Other Language Impaired Accommodations.

These regulatory, audit, enforcement and other actions show that private businesses and state and local government agencies alike should exercise special care to prepare to defend their employment and other business practices against potential disability or other Civil Rights discrimination challenges on a broad range of fronts.

HR Key Player

Human resources professionals are key players to efforts to effectively manage their organization’s overall discrimination risks and responsibilities by managing compliance throughout the organization.

All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws. When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.

Federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes, risk management efforts should begin with an assessment of the adequacy of existing policies and practices in light of the latest rules and enforcement actions. Based on this assessment, business and governmental organizations should update policies and procedures as required, tighten documentation, and conduct ongoing, well-documented audits and training to mitigate exposures.

Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities to persons with disabilities or others with whom the business deals who may be protected under Federal or state disability discrimination laws. In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts. Most businesses also may want to provide and post information about processes that customers or others who may have a concern about the needs of persons with these special needs to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal complaint.

If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.

For Help With Compliance, Risk Management & Defense

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

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, 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 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.

Comments Off on HR Key Player In Managing Countrywide & Other US Discrimination Exposures | ADA, Affirmative Action, Child Labor, Civil Rights, Corporate Compliance, Disability, EEOC, Employers, GINA, Government Contractors, OFCCP, Rehabilitation Act, Retaliation, USERRA, VEVRRA | Tagged: ADA, civil rights, Discrimination, employment discrimination, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

Senator Tells IRS To Fix Proposed Health Care Exchange Premium Tax Credit Regulations

December 16, 2011

U.S. Senator Orrin Hatch (R-Utah), Ranking Member of the Senate Finance Committee, says the premium subsidy provisions of the Patient Protection & Affordable Care act (Affordable Care Act) does not authorize the Internal Revenue Service (IRS) to allow individuals purchasing coverage through a federal health insurance exchange to receive the tax credits and subsidies authorized under new Internal Revenue Code § 36B to offset the cost of being mandated to buy health insurance created under Affordable Care Act Section 1311.

As created under the Affordable Care Act, Internal Revenue Code (Code) § 36B grates a refundable tax credit for certain individuals purchasing qualifying health insurance coverage from a qualified health plan. According to Senator Hatch, IRS proposed regulations here to implement Code § 36B would violate its provisions by allowing individuals that buy coverage through federal exchanges to claim premium tax credits because the express language of the statute only calls for amounts paid for coverage from “State” exchanges to count when calculating the amount of the credit. Read more details here.

For Help or More Information

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

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

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

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

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

Comments Off on Senator Tells IRS To Fix Proposed Health Care Exchange Premium Tax Credit Regulations | Claims Administration, Employee Benefits, Employers, ERISA, Health Plans, Mental Health, Mental Health Parity, Retirement Plans, Tax | Tagged: 36B, Affordable Care Act, exchanges, group health plan, health care exchanges, Health Insurance, Health Plans, HIPAA, Mental Health Benefits, Mental Health Parity, Patient Empowerment, premium subsidies, Substance Abuse Benefits | Permalink
Posted by Cynthia Marcotte Stamer

Labor Department Proposes Changing Minimum Wage& Overtime Rules For Home Caregivers, Keeps Heat On Health Care Employers

December 15, 2011

The U.S. Department of Labor Wage and Hour Division (WHD) plans to propose new rules that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services for the elderly and infirm. WHD’s focus on home health workers is an extension of its expanded regulation and enforcement efforts targeting a broad range of health care industry employers.

On December 15, 2011 the WHD announced that it will publish a Notice of Proposed Rulemaking [1] (NPRM) 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.

Violation of wage and hour laws exposes an employer to significant back pay awards, substantial civil penalties and, if the violation is found to be willful, even potential criminal liability.

For Help With Compliance & Risk Management and Defense

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

[1] WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

Comments Off on Labor Department Proposes Changing Minimum Wage& Overtime Rules For Home Caregivers, Keeps Heat On Health Care Employers | Corporate Compliance, Employers, Fair Labor Standards Act, Human Resources, Internal Controls, Internal Investigations, Wage & Hour | Tagged: department of labor, Employment, Health Care, Overtime, Wage & Hour | Permalink
Posted by Cynthia Marcotte Stamer

IRS Urges Preparers to Renew PTINs for 2012

December 15, 2011

The Internal Revenue Service is reminding tax return preparers to renew their Preparer Tax Identification Numbers (PTINs) before year’s end. All 2011 PTINs will expire on Dececember 31 and must be renewed annually. Tax preparers can renew by loging in here. The fee to renew is $63.

According to the IRS, preparers who applied for PTINs using a paper Form W-12 last year are encouraged to renew online. An activation code and instructions were mailed to each paper applicant for this purpose. Individuals who prefer to renew their PTIN on paper must mail a Form W-12, IRS Paid Preparer Tax Identification Number Application and Renewal. The response time is 4 to 6 weeks.

Tips about dealing with password or other issues are available on the PTIN page here.

For Help or More Information

If you need help reviewing, updating, administering or defending your fringe benefit or other employee benefit, compensation or human resources practices, please contact the author of this update, Cynthia Marcotte Stamer.

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

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

Other Resources

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

About Solutions Law Press

Comments Off on IRS Urges Preparers to Renew PTINs for 2012 | Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, ERISA, Retirement Plans, Tax, Tax Qualification | Tagged: 401(k), accountant, Circular 230, CPA, Determination Letters, Employee Benefits, Fringe Benefits, investment advice, IRA, meal expense, plan qualification, Preparer Tax Identification Number, prohibited transactions, ptin, retirement plan, Retirement Plans, tax preparer, travel expense | Permalink
Posted by Cynthia Marcotte Stamer

OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks

December 14, 2011

U.S. employers Federal government contractors and subcontractors will be required to set a hiring goal of having 7 percent of their workforces be people with disabilities, among other requirements if tightened regulations proposed by the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) is finalized as proposed on December 9. The proposed regulation would raise the target for hiring of disabled workers by government contractors to an unprecedented high. Coupled with other enforcement and regulatory activism by the Administration, the proposal highlights the need for government contractors as well as other U.S. businesses to guard against rising discrimination law exposures.

Employers that are government contractors should review the proposed regulations to determine its anticipated effect. Employers concerned about the proposed tightening of hiring standards or other provisions of the proposed regulation also should consider commenting on the proposed regulation. Meanwhile, all employers should heed the proposed regulation as yet another sign of the heightening of their exposures and responsibilities to disabled and other workers protected by federal discrimination laws under the Obama Administration.

Tighter Disability Discrimination Rules Proposed For Government Contractors

OFCCP’s proposed rule would raise the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.

The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.

Among other things, the proposed rule would:

Set a 7 percent hiring goal for the employment of individuals with disabilities, the highest level ever;
Required enhanced documentation and recordkeeping of requests and processing of requests for reasonable accommodation and other matters;
Ensure annual self-reviews of employers’ recruitment and outreach efforts; and
Add a new requirement for contractors to list job openings to increase their pools of qualified applicants.

These new rules would expand already significant nondiscrimination, affirmative action and recordkeeping requirements applicable to government contractors. The expansion of these rules comes as the reach of federal employment discrimination laws has been expanded to a significant number of employers not historically covered by these requirements due to participation in Stimulus Bill or other government funded programs which with broader than historically applicable affirmative action requirements.

Meanwhile, enforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations.

The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.

Government contactors and subcontractors as well as other employers should review these rules to assess their potential impact, as well as evaluate the adequacy of already existing practices and documentation with discrimination and other laws.

All organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges. Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments concerning whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.

Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes. In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

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

Comments Off on OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks | Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer

New Guidance On Fiduciary Duties In Handling ACA Group Health Plan Premium Rebates Highlight Advisability Of Tightening Funding Terms & Fund Handling Practices To Manage Fiduciary Risks

December 13, 2011

Group health plan sponsors and fiduciaries need to exercise care to properly handle any premium rebates, if any, received by from insurers to comply with the medical loss ratio rules enacted as part of the Patient Protection and Affordable Care Act (Affordable Care Act) to avoid violating the plan assets and other fiduciary responsibility rules of the Employee Retirement Income Security Act of 1974 (ERISA), according to Technical Release No. 2011-04, Technical Release on Fiduciary Requirements for Handling Medical Loss Ratio (MLR) Rebates (“Technical Release”) published December 2, 2011.

As amended by the Affordable Care, Section 2718 of the Public Health Service Act (PHSA) requires that health insurance issuers:

Publicly report on major categories of spending of policyholder premium dollars, such as clinical services provided to enrollees and activities that will improve health care quality;
Establishes medical loss ratio (MLR) standards for issuers; and
Requires issuers to provide rebates to enrollees when their spending for the benefit of policyholders on reimbursement for clinical services and health care quality improving activities, in relation to the premiums charged (as adjusted for taxes), is less than the MLR standards.

Employers or other sponsors that are group policyholders on insurance contracts covered by the MLR rules are likely to receive any rebates due because Department of Health and Human Services (HHS) final regulations implementing these MLR requirements published December 7, 2011 require issuers to pay any MLR rebates “to the policyholder.”

In anticipation insurers’ payment of these rebates, the Employee Benefit Security Administration (EBSA) is cautioning employers and other ERISA-covered group health plan sponsors and plan fiduciaries that premium rebates received from an insurer pursuant to these HHS MLB regulations may be plan assets required to be handled in accordance with ERISA’s plan assets and other fiduciary responsibility rules.

In the December 2, 2011 Technical Release, EBSA reminds plan sponsors and fiduciaries that premium rebates distributed pursuant to the Affordable Care Act’s MLR standards with respect to a group health plan are likely to be plan assets protected by ERISA’s fiduciary responsibility rules. Accordingly, the Technical Release cautions that plan sponsors or other parties receiving or exercising discretion over the rebated amounts that are ERISA plan assets generally should see that rebated amounts are handled in accordance with the fiduciary responsibility and trust requirements generally applicable to ERISA plan assets.

Determination whether the premium rebate is a plan asset generally requires a careful evaluation of whether the plan has a beneficial interest in the rebate and certain other factors. According to the Technical Release, a distribution such as the rebate to a group health plan will be a plan asset if the plan has a beneficial interest in the distribution under ordinary notions of property rights. While the identity of the policyholder – the employer or other plan sponsor versus a trust or plan – is one important consideration, the Technical Release warns that this is not the only factor.

The Technical Release says the fact that the employer is the policyholder or the owner of the policy would not, by itself, indicate that the employer may retain the distributions. Rather, determining who is entitled to the distribution requires careful analysis of a broad range of factors including:

The terms of the governing plan documents;
The funding sources of the policy;
The parties’ understandings and representations; and
Other relevant facts and circumstances.

If the rebate is an ERISA plan asset, employers or others receiving a premium rebate payment and others with discretion over the use and handling of the rebate should take steps to ensure that they can demonstrate the rebate is handled and expended in accordance with ERISA’s fiduciary responsibility requirements. Among other things, this means that rebated amounts should be:

Held in trust unless the plan fiduciaries verify that an exception applies;
Used only for the exclusive purpose of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan;
Handled in accordance with the fiduciary responsibility provisions of ERISA section 404 and the prohibited transaction provisions of ERISA section 406;
Held in trust in accordance with ERISA section 403; and
Not allowed to inure to the benefit of any employer.

The Technical Release reminds plan sponsors and administrators that if the rebate is a plan asset, decisions about and actions taken to deposit in trust, allocate, apply, spend and other aspects of handling the plan’s portion of a rebate generally are subject to ERISA’s general standards of fiduciary conduct, prohibited transaction and trust requirements. The Technical Release also provides guidance about allocation of the rebate under certain circumstances and certain other questions that are likely to arise in connection with the receipt of a rebate. Insurers, brokers, consultants and others working with employers or other plan sponsors, administrators, or fiduciaries who may receive a rebate or otherwise involved in making funding decisions also may want to discuss the guidance and other fiduciary responsibility rules with their clients to help promote understanding and compliance.

Because violations of ERISA’s fiduciary responsibility rules can create personal liability, employer and other plan sponsors, plan fiduciaries and others participating in decisions or administration of a rebate exercise care in dealing with any rebate. Many plan sponsors also may want to consider reviewing and tightening as warranted existing plan, trust, insurance policy, plan communications and other documentation to lower risks and promote desired characterization of rebates and other amounts paid into or with respect to their plans.

For Help or More Information

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

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

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

Other Resources

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

About Solutions Law Press

Comments Off on New Guidance On Fiduciary Duties In Handling ACA Group Health Plan Premium Rebates Highlight Advisability Of Tightening Funding Terms & Fund Handling Practices To Manage Fiduciary Risks | Claims Administration, Employee Benefits, Employers, ERISA, Health Plans, Mental Health, Mental Health Parity, Retirement Plans, Tax | Tagged: ADA, Affordable Care Act, Fiduciary Responsibility, group health plan, Health Insurance, Health Plans, HIPAA, Mental Health Benefits, Mental Health Parity, Substance Abuse Benefits | Permalink
Posted by Cynthia Marcotte Stamer

Mental Health Parity Guidance On Mental Health & Substance Abuse Copays, Utilization Management Limits Released

December 7, 2011

Group health plans and health insurers subject to the mental health parity requirements of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) have additional guidance about the effect of these requirements on utilization management and copayment requirements.

The U.S. Departments of Health and Human Services (HHS), Labor and the Treasury (the Departments) on November 17, 2011 published additional FAQs that share insights on how the MHPAEA requirements impact certain common copayments and utilization review arrangements historically used by plans and insurers. The new FAQ guidance here provides additional clarification about the meaning of the interim final rules implementing MHPAEA the Departments jointly issued on February 2, 2010, and previous FAQ guidance published on June 30, 2010 and December 22, 2010 as applied to these practices.

For group health insurers and group health plans subject to its provisions, MHPAEA generally requires that insurer or plan:

Cannot impose financial requirements and treatment limitations on mental health and substance use disorder benefits that are more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits; and
Cannot impose separate financial requirements or treatment limitations that are applicable only to mental health or substance use disorder benefits.

The new FAQs share the Departments joint response to questions about their interpretation of the interim final rules on nonquantitative treatment limitations in various respects. Among other things, the new FAQs reflect:

The new FAQs respond to various questions about the effect of the MHPAEA on various medical necessity and other utilization management practices that health plans and health insurers historically have applied mental health and substance abuse coverage’s.

The FAQs generally reaffirm that group health plans and health insurers generally cannot apply stricter medical necessity or other utilization review for mental health or substance abuse treatments than the prevailing requirements generally applicable to medical surgical benefits under the plan or policy.

The FAQ also provides insight into evidence that health insurers or health plan sponsors should consider and retain when designing fraud control or other medical management techniques to be defensible under the MHPAEA’s parity requirements.

Furthermore, the new FAQs also provide guidance about the viability and use of differences in clinical standards of care, length of stay, and other clinical standards to justify differences in the periods of coverage provided for mental and substance abuse coverage versus other types of treatments.

Finally, the FAQs also address when a group health plan or health insurer can require covered persons to pay a higher specialist copayment for mental health or substance abuse treatments than generally applies to care rendered to a non-specialist.

Insurers, plan sponsors, fiduciaries and administrators also should consider the potential implications of various other federal requirements on the design and administration of mental health and substance abuse coverage and benefits under their programs. For example, the express reference to mental health and substance abuse benefits as included within the definition of “essential benefits” for purposes of the Affordable Care Act requires additional consideration of the effect of the Affordable Care Act’s annual and lifetime limit and other mandates relating to essential benefit coverage be evaluated and addressed. In addition, specific attention should be devoted to the potential effects of the Affordable Care Act’s independent review and other rules concerning the processing and payment of health benefit claims by non-grandfathered health plans.

Along with considering the potential implications of these emerging requirements, health insurers, group health plans and those involved in their design and administration also should verify that their eligibility and other program terms or practices do not inappropriately violate the nondiscrimination rules of laws such as the Americans with Disabilities Act, the Health Insurance Portability & Accountability Act, the Genetic Information Nondiscrimination Act or other laws and that their plan and those involved in its administration are properly safeguarding the confidentiality of sensitive information about mental health , substance abuse or other health information about covered persons or their family. Learn more here.

For Help or More Information

Other Resources

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

About Solutions Law Press

Comments Off on Mental Health Parity Guidance On Mental Health & Substance Abuse Copays, Utilization Management Limits Released | Claims Administration, Employee Benefits, Employers, ERISA, Health Plans, Mental Health, Mental Health Parity, Retirement Plans, Tax | Tagged: ADA, Affordable Care Act, group health plan, Health Insurance, Health Plans, HIPAA, Mental Health Benefits, Mental Health Parity, Substance Abuse Benefits | Permalink
Posted by Cynthia Marcotte Stamer

Group Health Plans & Insurer To Get More Time To Meet Affordable Care Act Summary of Benefits and Coverage Requirements

December 7, 2011

Delayed Deadline Allows Much Needed Time To Continue Preparations

Group health plans and insurers, their sponsors, fiduciaries, administrators and other services providers are getting more time to comply with the Affordable Care Act’s new Summary of Benefits and Coverage (“SBC”) mandate beyond the March 23, 2012 deadline originally set forth in the Proposed Regulations jointly published by the U.S. Departments of Health and Human Services (HHS), Labor and the Treasury (the Departments). Plans, their insurers and administrators should make good use of this time to continue the time consuming planning and preparations expected to be required to comply with the final rules.

As amended by the Affordable Care Act, Public Health Service Act (“PHS Act”) § 2715 PHS requires group health plans and health insurance issuers to provide a “Summary of Benefits and Coverage” and “Uniform Glossary” meeting standards developed by the Departments.

In August, 2011, the Departments jointly published proposed regulations and accompanying templates detailing the content, format, supplements and other requirements that they proposed requiring health plans and health insurers to meet to satisfy the SBC requirements.

If implemented in final form as proposed, group health plans and insurers, their sponsors, administrators and fiduciaries can expect that significant work will be required to evaluate and prepare the SBC and associated adjustments to plan documents, summary plan descriptions and other materials and practices that are likely to be required in response to the new requirements. Since health plan documents and insurance contracts are unlikely to already use the same definitions as the SBC regulations require be used in the Glossary, group health insurers and self-insured group health plans, their sponsors, fiduciaries and other administrators generally will want to review and adjust definitions and other plan document and insurance cotnract provisions to eliminate inconsistencies and address other concerns. Likewise, adjustments to summary plan descriptions, certificates of benefits and other communication materials also likely will be needed. Furthermore, most health insurers and group health plan may want to reevaluate claims and other cost and reserve projections and consider other adjustments in response to potential implications of these adjustments.

As originally proposed by the Departments, health plans and issuers faced a March 23, 2012 deadline to begin complying with the SBC rules. Since August, 2011, we and various other attorneys from the American Bar Association RPTE and Tax leadership, as well as others have shared concerns with representatives of the Departments about the compliance deadlines and other aspects of the Proposed Rules. New guidance released by the Departments in November reflects that the Departments are taking this input to heart.

According to joint guidance issued by the Departments in November, the health plans and insurers will not be expected to comply by March 23. Frequently Asked Question (FAQ) guidance jointly issued by the Departments indicates that health plans and health insurers will not be required to comply with the SBC mandate until after the Departments issue finalize regulations.

According to the FAQ, the Departments’ final regulations, once issued, will include an applicability date that allows group health plans and health insurance issuers “sufficient time to comply.” The FAQ does not indicate when the Departments expect to publish final regulations or the length of the period following this publication that the Departments anticipate health plans and issuers will have to come into compliance.

This news provides welcome relief for group health plans and insurers, and the employers, administrators and others working to update and administer group health plans in response to the Affordable Care Act. Health plans, insurers, their sponsors, administrators and service providers are cautioned to make good use of this added time to begin preparing to respond quickly when regulations are finalized. While the Departments are expected to make various refinements when finalizing the regulations beyond adjusting the compliance deadline, plans and insurers are expected to be required to engage in significant planning and other preparations to meet the revised rules. In light of this, health insurers and group health plans, their sponsors, administrators and fiduciaries generally are advised to continue these preparations based upoln the guidance set forth in the proposed regulations so that they can be prepared to respond in a timely fashion to the final regulations.

For Help or More Information

Other Resources

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

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

About Solutions Law Press

Comments Off on Group Health Plans & Insurer To Get More Time To Meet Affordable Care Act Summary of Benefits and Coverage Requirements | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: Affordable Care Act, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health premiums, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

CMS Final Medicare Rule Imposes Many Conditions On Access To Medicare Claims Data To Evaluate Providers & Suppliers

December 6, 2011

Final Rules Make Direct Access To Data By All But Most Sophisticated Impossible

The Centers For Medicare & Medicaid Services (“CMS”) says disclosures of certain Medicare provider and supplier claims performance data scheduled to begin in January will empower employers, health plans and consumers to better evaluate the quality of these health care providers and suppliers.

CMS plans to begin sharing certain Medicare parts A, B and D provider claims data with “qualifying entities” that can demonstrate the necessary experience and qualifications for use in assisting employers, health plans and others to evaluate the performance of providers and suppliers. CMS also will generate public reports about this performance data for purposes of aiding employers, consumers and others in evaluating the quality for provider or suppliers.

The disclosures will be made in response to Section 10332 of the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010 (collectively the “Affordable Care Act”). Section 10332 generally requires CMS make available this Medicare data to “qualifying entities” for use in conjunction with other claims data to evaluate provider performance effective January 1, 2012.

The new Final Rule on Availability of Medicare Data for Performance Measurement (“Final Rule”) available for review here establishes detailed requirements about who, when and under what conditions that Medicare will allow qualifying entities to obtain and use certain standardized extracts of Medicare Parts A, B, and D provider and supplier performance data in conjunction with other claims data to evaluate provider and supplier performance pursuant to Section 10332. The Final Rule also discusses privacy requirements that qualifying entities must meet when handling this data. scheduled for official publication in the December 7, 2011 Federal Register

The disclosure of provider performance data is intended to provide greater transparency to employers, health plans, consumers and other parties in evaluating health care provider and supplier quality. To access this information, however, entities will have to comply with detailed requirements. Complicated restrictions included in the Final Rules make it likely that only sophisticated health plans and service providers will be able to directly access and use the provider and supplier data intended to be made available under the Final Rule, however.

As implemented under the Final Rule, entities wishing to access the provider or supplier claims data will be required to meet detailed qualification and other requirements. For instance, among other things, the Final Rule generally only allows an entity to access and use the provider data if it is an entity or business contractor to an entity that:

CMS determines is an entity eligible to obtain the provider data under the eligibility criteria set forth in the Final Rule;
Apply to obtain the provider data under the Final Rule for an allowed purpose in accordance with a demonstrated plan as required by the Final Rules;
Meet a detailed list of requirements demonstrating that it has the experience, governance, policies, procedures and other required qualifications specified in the Final Rules to qualify to obtain and use the provider data;
Pays the required fee;
Comply with annual reporting and other reporting and monitoring requirements;
Comply with the specific requirements of the Final Rules concerning the protection of the privacy of accessed data;
Agree to meet the requirements described in the Final Rules; and
Otherwise comply with all other applicable requirements of the Final Rule.

Entities accessing the information also will be monitored and subject to sanction for failing to comply with the Final Rule in using or handling the provider performance data once it is received. Once an entity is allowed to access the provider claims data, the Final Rules specify that CMS will monitor and assess the performance of qualified entities and their contractors through audits, review of data source documentation and data as requested by CMS; site visits; review of data reported by the qualified entity as part of required annual reporting and other reporting requirements set forth in the Final Rule; analysis of complaints from beneficiaries and/or providers or suppliers. If CMS determines that a qualified entity has breached any of these requirements, it may warn; require a corrective action plan (“CAP”); place the qualified entity on a special monitoring plan; or terminate the qualified entity from participation in the program in accordance with the Final Rules.

Health plans, employers, and other entities desiring to access or use this information will need to exercise care when applying to obtain and handling the data to ensure that all requirements are met. To ensure that these requirements are met, parties interested in obtaining these rules should seek assistance from competent counsel and other qualified advisors concerning their proposed application and use of this data.

In light of these and other conditions for accessing and using this information, only a very limited of very sophisticated health plans, employers or other entities or their advisors are likely to apply to or qualify to access and use the provider and supplier claims data as contemplated by the rule. Individual consumers, and most employers generally will only benefit from the new access allowed to this data indirectly, by accessing the analysis of these entities.

For Help or More Information

If you need help responding to this new guidance or otherwise to deal with other health plan or insurance, employee benefit, human resources, compensation, health care matters or related matters, please contact the author of this update, Cynthia Marcotte Stamer.

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

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with health and managed care, insurance and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend insured and self-insured medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. She also has worked extensively with Medicare and Medicaid Advantage, association, employer and other group insurance arrangements, MEWAs, fraternal benefit and mutual aid programs, government programs, and a broad range of other specialized health and other programs and insurers to design and administer arrangements in response to their unique regulatory and operational needs. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.

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:

You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here. For important information concerning this communication click here.

About Solutions Law Press

Comments Off on CMS Final Medicare Rule Imposes Many Conditions On Access To Medicare Claims Data To Evaluate Providers & Suppliers | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Updates Safety Resources To Prevent Construction, Other “Top 10” Exposures

December 5, 2011

Construction Exposures OSHA Exposure For Most Businesses Including Those In Construction

Construction industry as well as other employers need to watch key construction safety risks.

Construction industry employers get high scrutiny of their safety and injury experience and practices because of high injury incidents coming from these risks. However, you don’t have to be in the construction industry to be exposed to construction and building related risks that are common source of workplace injury and OSHA citations.

While continuing to keep the heat up on enforcement, the Occupational Health & Safety Administration (OSHA) recently released new and updated educational brochures and a series of new QuickCards it intends to promote worker safety in these and other areas.

With construction and related activities continuing to be a lead source of injuries, the Occupational Health & Safety Administration (OSHA) is taking steps to promote better safety compliance in relation to construction and other common accident sources as well as continuing to zealously enforce OSHA citations and other remedies against businesses breaching these and other safety responsibilities. As virtually all employers, including but not limited to those in construction or similar industries have workers performing construction related tasks, all employers should check the updated and existing safety requirements involving these actions and take other steps to manage these and other highlighted exposures.

Construction, Other Safety Education & Resources Updated

Focusing on worker safety in the construction, general and maritime industries, OSHA recently released new and updated educational brochures and a series of new QuickCards on worker safety. These materials available here include workers’ rights, employer rights and responsibilities following an OSHA inspection, construction industry digest, small entity compliance guide for respiratory protection standard and laboratory safety guidance. These new resources are part of a broad range of worker health and safety guides, standards and related materials published by OSHA covering a broad range of industries.

The emphasis on these industries is based in part on the high injury incidence in these businesses. OSHA statistics show that of 4,070 worker fatalities in private industry in calendar year 2010, one-fifth (751 or 18.5%) were in construction. The leading causes of worker deaths on construction sites were: falls, electrocution, struck by object, and caught–in/between. These “Fatal Four” were responsible for nearly three out of five (57%) construction worker deaths in 2010:

Falls – 260 out of 751 total deaths in construction in CY 2010 (35%)
Electrocutions – 76 (10%)
Struck by Object – 63 (8%)
Caught-in/between – 32 (4%)

Employers of workers involved in construction, general and maritime industries also frequently are found to have committed violations that fall within the Top 10 most frequently cited OSHA standards violated in FY2010:

Scaffolding, general requirements, construction (29 CFR 1926.451)
Fall protection, construction (29 CFR 1926.501)
Hazard communication standard, general industry (29 CFR 1910.1200)
Ladders, construction (29 CFR 1926.1053)
Respiratory protection, general industry (29 CFR 1910.134)
Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
Powered industrial trucks, general industry (29 CFR 1910.178)
Electrical systems design, general requirements, general industry (29 CFR 1910.303)
Machines, general requirements, general industry (29 CFR 1910.212)

Construction industry and other employers should review safety practices and compliance for compliance with these and all other standards and to address other potential safety risks to minimize OSHA and other occupational injury related liabilities. and ensure their documentation of these efforts meets OSHA requirements and also positions the employer to defend against potential sanctions in the event of an employee injury or OSHA audit.

Because of the heavy use of subcontractors in these industries, employers also should be aware of potential exposures that can result from other businesses and workers on site.

In addition, employers should take care to ensure that all required documentation of safety practices and notifications dictated by OSHA are maintained and properly preserved.

In the event of an accident or other safety hazard event, employers also should engage counsel and other needed experts to timely investigate, provide notification and redress and manage resulting exposures under OSHA, worker’s compensation and other laws.

For Help With These Or Other Matters

If you would like help reviewing or defending your organization’s occupational health and safety or other employment or risk management concerns or wish to discuss arranging for Ms. Stamer to conduct training or speak for your organization, please contact Ms Stamer here.

Immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee and past Vic e-Chair of its Worker’s Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on health and other employee benefit and related workforce, insurance and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with employment, health and safety, employee benefits, compensation and other internal controls and workforce matters. She has 24 plus years experience helping employer and other clients develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits and other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

About Solutions Law Press

Comments Off on OSHA Updates Safety Resources To Prevent Construction, Other “Top 10” Exposures | Employee Benefits, Employers, OSHA, Retirement Plans, Tax | Tagged: Employment, Occupational Injury, OSHA, Safety | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety

December 5, 2011

The November, 2011, OSHA nailed New York animal feed processor Harbor Point Mineral Products for 21 workplace safety standard violations uncovered following OSHA’s investigation of the death of a worker in a grain silo accident. The worker was fatally engulfed by cotton seed stored in a silo on May 11, 2011. The action illustrates the need for grain silo and other similar operators to audit and maintain appropriate safety compliance to guard against OSHA liability.

An inspection by OSHA’s Syracuse Area Office found that employees had not been trained on the hazards associated with entering a silo and were not equipped with an approved lifeline. In addition, the atmosphere inside the silo had not been sampled for oxygen deficiency and the energy source of the silo’s augur had not been locked out prior to entry. Due to the employer’s knowledge of and failure to address these hazards, OSHA issued citations for four willful violations. A willful violation exists when an employer has demonstrated either an intentional disregard for the requirements of the law or plain indifference to employee safety and health.

OSHA also cited the company for 17 serious violations for a variety of additional safety and health hazards. These included allowing an employee to “walk down” the grain; the lack of rescue equipment and training; employees overexposed to grain dust and the lack of controls to reduce the exposure level; respiratory and hazard communication deficiencies; and fall hazards from unguarded ladder, floor and wall openings.

A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. See citations here and here.

In response to these citations, OSHA notified Harbor Point that it faced proposed penalties totaling $155,200 and placed Harbor Point in its Severe Violator Enforcement Program (SVEP), which mandates targeted follow-up inspections to ensure compliance with the law. Initiated in June 2010, the program focuses on “recalcitrant employers” that OSHA views as endangering workers by committing willful, repeat or failure-to-abate violations. For more information on SVEP, see here.

OSHA also has fined grain operators in Wisconsin, Illinois, Colorado, South Dakota, Ohio and Nebraska following preventable fatalities and injuries. In addition to enforcement actions and training, OSHA Assistant Secretary Dr. David Michaels sent a notification letter in August 2010 and another in February 2011 to grain elevator operators warning them of proper safety precautions. For a copy of the letter, visit here.

Grain operators and related workers are not the only industry receiving enforcement attention. OSHA generally investigations any accident resulting in a worker death or serious injury, as well as conducts audits of a broad range of employers with some industries targeted for special attention based on what OSHA perceives as heightened hazards or noncompliance within the industry.

According to OSHA, the overall most commonly sited OSHA violations include several common to these industries. OSHA’s “Top 10” list of safety protection standard violations include scaffolding, fall protection, hazard communications, respiratory protection, lockout/tagout, electrical, wiring methods, powered industrial trucks, ladders, electrical general requirements, machine guarding and machine guarding.

Grain silo and other employers should review safety practices and compliance for compliance with these and all other standards and to address other potential safety risks to minimize OSHA and other occupational injury related liabilities. and ensure their documentation of these efforts meets OSHA requirements and also positions the employer to defend against potential sanctions in the event of an employee injury or OSHA audit.

Because of the heavy use of subcontractors in these industries, employers also should be cognizant of potential exposures that can result from other businesses and workers on site.

In addition, employers should take care to ensure that all required documentation of safety practices and notifications dictated by OSHA are maintained and properly preserved.

For Help With These Or Other Matters

About Solutions Law Press

Comments Off on OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety | Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Updates Safety Resources To Prevent Construction, Other “Top 10” Exposures

December 5, 2011

OSHA Updated Worker Safety Cards Available As Safety Enforcement Continues

Construction, Other Safety Education & Resources Updated

Focusing on worker safety in the construction, general and maritime industries, the recently released brochure topics available here include workers’ rights, employer rights and responsibilities following an OSHA inspection, construction industry digest, small entity compliance guide for respiratory protection standard and laboratory safety guidance. These new resources are part of a broad range of worker health and safety guides, standards and related materials published by OSHA covering a broad range of industries.

Falls – 260 out of 751 total deaths in construction in CY 2010 (35%)
Electrocutions – 76 (10%)
Struck by Object – 63 (8%)
Caught-in/between – 32 (4%)

Scaffolding, general requirements, construction (29 CFR 1926.451)
Fall protection, construction (29 CFR 1926.501)
Hazard communication standard, general industry (29 CFR 1910.1200)
Ladders, construction (29 CFR 1926.1053)
Respiratory protection, general industry (29 CFR 1910.134)
Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)
Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)
Powered industrial trucks, general industry (29 CFR 1910.178)
Electrical systems design, general requirements, general industry (29 CFR 1910.303)
Machines, general requirements, general industry (29 CFR 1910.212)

Because of the heavy use of subcontractors in these industries, employers also should be cognizant of potential exposures that can result from other businesses and workers on site.

In addition, employers should take care to ensure that all required documentation of safety practices and notifications dictated by OSHA are maintained and properly preserved.

For Help With These Or Other Matters

About Solutions Law Press

EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans

December 5, 2011

Multiple and multi-employer health and other welfare plans are subject to special Form M-1 and other reporting and disclosure and other requirements under Federal law as amended by the Patient Protection and Affordable Care Act (“Affordable Care Act”).

The Department of Labor’s Employee Benefits Security Administration (“EBSA”) updated its website with the following new guidance under the Affordable Care Act today:

Proposed Rule on Ex Parte Cease and Desist and Summary Seizure Orders: Multiple Employer Welfare Arrangements, available at http://www.dol.gov/ebsa/pdf/proposedm1revisionsreg1.pdf
Proposed Rule on Filings Required of Multiple Employer Welfare Arrangements and Certain Other Entities, available at http://www.dol.gov/ebsa/pdf/proposedm1revisionsreg2.pdf
Notice of Proposed Revision of Annual Information Return/Report, available at http://www.dol.gov/ebsa/pdf/proposedm1revisionsreg3.pdf
Notice of Proposed Revision of the Form M-1, available at http://www.dol.gov/ebsa/pdf/proposedm1revisionsreg4.pdf
Proposed Form M-1 Revisions, available at http://www.dol.gov/ebsa/proposedm1revisions.html
Fact Sheet, available at http://www.dol.gov/ebsa/newsroom/fsproposedm1revisions.html
Related News Release, available at http://www.dol.gov/ebsa/newsroom/2011/11-1677-NAT.html

For More Information Or Assistance

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

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

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

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

Comments Off on EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans | 105(h), Affordable Care Act, CHIP, Claims Administration, COBRA, Disability, Disability, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, M-1, MEWA, multi-employer, multiple employer, multiple employer welfare plan, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices

December 3, 2011

HR Key Player In Managing Rising Race & Other Discimination Suits Under Obama Administration Justice Department

The Obama Administration’s December 2 announcement of its revocation and replacement of Bush Administration policies on affirmative action in education highlights the heightened aggressiveness under the Obama Administration on the implementation, interpretation and enforcement of race, sex, disability, national origin and other federal discrimination and Civil Rights laws.

The new guidance discussed in more detail at http://wp.me/p1hsKH-1k makes clear the Administration’s view that schools can and should be doing more to promote integration and other affirmative action efforts in the schools and other organizations. It also gives a number of examples of the types of steps that the Administration believes schools should be pursuing. While specifically directed in schools, it provides insights about the affirmative action expectations of the Administration that merit notice by all public and private organizations and businesses.

The Justice Department under the Obama Administration in making discrimination in schools and other state and local agencies as well as by private businesses a priority. For instance, in addition to tightening and enforcing race discrimination laws, the Justice Department on November 23, 2011 sued the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities.

These and other activities are part of a growing number of regulatory and enforcement actions under the Obama Administation that illustrate the growing risk created for private and public organizations by failing to manage compliance with discrimination or other civil rights laws in the conduct of their business operations, as well as employment practices.

While most governmental agencies and businesses recognize the need to manage compliance with discrimination laws in their employment practices, many fail to adequately recognize and provide policies, management controls and training to maintain compliance with federal discrimination laws prohibiting discrimination in dealing with customers, vendors or other swith whom they do business.

Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities with whom the business deals who may be protected under Federal or state race or other discrimination laws. In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts. Most businesses also may want to provide and post information about processes that customers or others who may have a concern about potential prohibited discrimination to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal complaint.

For Added Information and Other Resources

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

For Help Or More Information

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

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

About Solutions Law Press

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

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

Comments Off on New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices | Civil Rights, Disability, Disability, Disability Plans, Discrimination | Tagged: Accommodation, ADA, Consumer Rights, Disability Discrimination, Discrimination, Internal Controls, Justice Department, Real Estate | Permalink
Posted by Cynthia Marcotte Stamer

Incentives To Get Employee Into Wellness Education Requires Legal Risk Management

December 3, 2011

Employers and health plans hoping to leverage the cost containment and other benefits of effective wellness programs may find helpful insights from a new Healthy Cal report about The Network for a Healthy California. When designing and administering these programs, however, employers and health plans need to use care to manage nondiscrimination and privacy risks.

Healthy Cal reports that the experience of the The Network for a Healthy California, a partnering program by federal, state, and local agencies, shows that educational programs can help low-income families make better health choices.

According to the Healthy Cal report, the 2009 Pediatric Nutrition Surveillance data from the California Department of Public Health found that roughly 21 percent of the population in Orange County’s between the ages of 5 and 20 years, and 17 percent of children between the ages of 2 and 5 years were obese.

Healthy Cal says the Network created a number of initiatives that have helped many of Santa Ana’s low-income population access healthy foods and conducted a broad range of other educational programs for the population. Noting that the outreach sought improve food choices, cultural and awareness barriers and other understandings and patient and family behaviors and circumstances. Healthy Cal reports that these efforts are paying off. Learn more at Healthy Cal.

Effective education programs are one element of successful wellness and disease management programs. The Network’s efforts show that success from these efforts requires persistence. Of course, making wellness education work starts with getting the employees and their families to the lesson. That often is where the challenge lies.

Employers and health plans often face challenges getting employees and their family to participate in these and other wellness programs. Many employers and health plans try to overcome participation barriers by offering financial or other rewards or penalities. However, legal concerns require that these arrangements be designed and used with great care to ensure that the savings sought from the wellness program are not overshadowed by defense and liability costs.

Financial or other incentive and reward programs of course must be designed to comply with the nondiscrimination rules of the Health Insurance Portability & Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA) and, perhaps most significantly of late, the Equal Employment Opportunity Commission’s interpretation of the Americans With Disabilities Act physical testing and other disability discrimination rules. Privacy requirements also can be a challenge under these laws unless information collected from screening and other wellness and disease management activities is carefully collected, routed and handled to comply with HIPAA, GINA and other privacy rules. See, e.g, EBSA Issues Guidance on Health PLan Wellness & Disease Management Programs Subject to HIPAA Nondiscrimination Rules; ADAAA Amendment Broader “Disability Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks; Businesses Face Rising Disability Discrimination Enforcement Risks; EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act. A recent Florida District Court decision upholding one employer’s wellness program on the facts and circumstances may provide helpful insights for employers and health plans planning to use these arrangements on steps and evidence to retain to position to claim certain potential defenses to ADA disability discrimination claims. Until more favorable guidance evolves, however, all employers and health plans using these arrangements need to consider the potential exposures and take steps to position against a potential discrimination claim by private plaintiffs, regulators or both.

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

Vendors enthusiastic about marketing their wellness and disease management programs frequently do not

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

About Author Cynthia Marcotte Stamer

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

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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

Comments Off on Incentives To Get Employee Into Wellness Education Requires Legal Risk Management | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

Comment Deadline 1/31 On HHS Plan To Let States Define ACA “Essential Benefits” That Concerns Many

Stamer Dallas Bar Journal Article Cautions Employers Must Take Holistic Approach To Address Worker Misclassification Risks

Employers Urged To Strengthen Worker Classification Defenses As Obama Administration Targets Employers Misclassifying Workers

2/27 Deadline For Employers To Comment On DOL Proposed Rule Changes Extending Minimum Wage & Overtime Rules To More Home Caregiver Workers

NLRB Changes Certification Election Case Procedures

NLRB Delays Deadline For Employee Labor Rights Poster Requirement To April 30

New Labor Department Retaliation Guidance Reminder Of Retailiation Risks

HR Key Player In Managing Countrywide & Other US Discrimination Exposures

Labor Department Proposes Changing Minimum Wage& Overtime Rules For Home Caregivers, Keeps Heat On Health Care Employers

IRS Urges Preparers to Renew PTINs for 2012

OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks

Group Health Plans & Insurer To Get More Time To Meet Affordable Care Act Summary of Benefits and Coverage Requirements

CMS Final Medicare Rule Imposes Many Conditions On Access To Medicare Claims Data To Evaluate Providers & Suppliers

OSHA Updates Safety Resources To Prevent Construction, Other “Top 10” Exposures

OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety

OSHA Updates Safety Resources To Prevent Construction, Other “Top 10” Exposures

EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans

New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices

Incentives To Get Employee Into Wellness Education Requires Legal Risk Management

Email Subscription

Pages

Recent Posts

Archives

Share this blog

Solutions Law Press HR & Benefits Update