Comment To OCR By 6/6 To Help Shape How OCR Implements HITECH Act Recognized Security Practices Standards For Purposes Of Setting Civil Monetary Penalties Under HIPAA Security Rules.

April 29, 2022

June 6, 2022 is the deadline for health plans, their sponsors, fiduciaries, administrative and other business associates and others to provide input to the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) that OCR says it seeks to help shape how it defines and implements the “recognized security standards” requirements of the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), as amended in 2021 for purposes of its administration and enforcement of civil monetary penalty and other provisions of of the Health Insurance Portability and Accountability Act (“”HIPAA”). The regulatory and enforcement decisions that OCR makes could significantly impact the civil monetary penalty liability, compliance, audit and recordkeeping responsibilities that health plans, health care providers, health care clearinghouses and their business associates (“Covered Entities”) face under the HIPAA Security and Breach Notification Rules.

OCR is inviting public input on two issues under the OCR Request for Information on Considerations for Implementing the Health Information Technology for Economic and Clinical Health (HITECH) Act, as Amended (RFI) released April 6, 2022:

  • The definition and administration of the “recognized security practice” factor the HITECH Act requires OCR to consider when assessing audit results, civil monetary penalty and settlement amounts and other HIPAA Security and Breach Rule enforcement; and
  • The rules that OCR will follow to determine when and how OCR will share portions of amounts it receives from civil monetary penalties or settlements with individuals harmed by breaches of electronic protected health information, 

Recognized Security Practices

Section 13412 of the HITECH Act requires HHS to take into consideration certain recognized security practices of covered entities (health plans, health care clearinghouses, and most health care providers) and business associates1 when determining potential fines, audit results, or other remedies for resolving potential violations of the HIPAA Security Rule pursuant to an investigation, compliance review, or audit. 

A primary goal of the requirement, which took effect January 5, 2021, is to encourage covered entities and business associates to do “everything in their power to safeguard patient data.”

The RFI solicits comment on how covered entities and business associates are implementing “recognized security practices,” how they anticipate adequately demonstrating that recognized security practices are in place, and any implementation issues they would like OCR to clarify through future guidance or rulemaking.

Civil Money Penalty (CMP) and Settlement Sharing

Section 13410(c)(3) of the HITECH Act requires HHS to establish by regulation a methodology under which an individual harmed by a potential violation of the HIPAA Privacy, Security, and/or Breach Notification Rules may receive a percentage of any CMP or monetary settlement collected with respect to that offense.

Section 13140(d)(1) of HITECH requires that OCR base determinations of appropriate penalty amounts on the nature and extent of the violation and the nature and extent of the harm resulting from such violation. The HITECH Act does not define “harm,” nor does it provide direction to aid HHS in defining the term.

The RFI solicits public comment on the types of harms that should be considered in the distribution of CMPs and monetary settlements to harmed individuals, discusses potential methodologies for sharing and distributing monies to harmed individuals, and invites the public to submit alternative methodologies.

Comments Due 6/6

Health plan and other Covered Entity input could significantly impact how OCR implements and administers these two important aspects of the HIPAA Security Rule going forward.  As these decisions are likely to significantly impact the policies, practices, recordkeeping, breach investigation and other obligations that Covered Entities would need to meet in the event of an audit, breach or other investigation or enforcement, timely, thoughtful input from all Covered Entities and affected stakeholders is important.  In addition, its decisions on how to distribute CMPs.

For more information about the RFI or instructions for submitting comments, see here.

Health Plan Security & Breach Exposures Beyond HIPAA

Beyond the significant exposures health plans and their business associates may face under HIPAA, recent Department of Labor Employee Benefit Security Administration (“EBSA”) guidance also signals growing risks for health plans and their fiduciaries under the Employee Retirement Income Security Act of 1974. See e.g., HIPAA & ERISA Fiduciary Rules Drive Imperative To Protect Health Plan Data & Systems From Hacking & Other Cyber Threats.

These are just some of the emerging health plan compliance risks and responsibilities that health plan, their fiduciaries, sponsors, administrators, service providers and insurers need to watch and manage. Amber M. Rivers, Director of the Employee Benefit Security Administration Office of Health Plan Standards and Compliance will discuss these and other risks during the “Department of Labor Health Plan Compliance and Enforcement Update” at a virtual program hosted by the American Bar Association Joint Committee on Employee Benefits from Noon to 1:30 p.m. Central Time on May 5, 2022 to be moderated by Solutions Law Press, Inc. author and publisher, attorney Cynthia Marcotte Stamer will moderate the program.

For additional information about or to register for this program, see here.

More Information.

For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.

Solutions Law Press, Inc. invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations GroupHR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. 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 your profile here.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, well-known for her extensive work with health and other employee benefits, health care and life sciences, insurance, financial services, technology, and other highly regulated and performance reliant organizations and their leadership, Ms. Stamer works with these and other businesses and their management, employee benefit plans, insurers, health care and life sciences, governments and other organizations deal with all aspects of health care, human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, Form I-9 and other compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. her more than 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a practicing attorney, as well as as an industry, policy management consultant, and policy strategist as well through her leadership participation in professional and civic organizations. Examples of her many leadership involvements include service as the Vice President and Executive Director of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; Vice Chair of the ABA International Law Section Life Sciences and Health Committee; Vice Chair of the ABA Tort & Insurance Practice Section Medicine and Law Committee and former Vice Chair of its Employee Benefits Committee and its Worker’s Compensation Commitee; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, current Welfare Committee Co-Chair and past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

As part of these involvements, Ms. Stamer is scheduled to moderate the discussion of “Department of Labor Health Plan Compliance and Enforcement Update” with Amber M. Rivers, Director of the Employee Benefit Security Administration Office of Health Plan Standards and Compliance that the ABA Joint Committee on Employee Benefits is hosting on May 5, 2022. For additional information about or to register for this program, see here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com including the following:

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department 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.

©2022 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions  Law Press, Inc.™   For information about republication, please contact the author directly.  All other rights reserved.


Hear Latest On Health Plan Compliance & Enforcement From EBSA Director of Health Plan Standards & Compliance On 5/5

April 26, 2022

The Health Insurance Marketplaces 2022 Open Enrollment Report (“Report”) published by the Centers for Medicare and Medicaid Services last month reveals the 2022 Open Enrollment Period (“2022 OEP”) produced the highest enrollment in health care marketplace plans since passage of the Patient Protection and Affordable Care Act (“ACA”) 12 years ago.

A review of the data reveals a number of possible explanations for the increased enrollment including but not limited to Biden Administration emphasis on outreach, the expansion of the enrollment period and availability of subsidies, and more. Businesses sponsoring health plans, insurers and other payers, government and community leaders, taxpayers and other others may wish to evaluate this data and these implications further to assess their short term and long term implications on their health plan concerns and existing and proposed practices, governmental policy proposals and other planning considerations.

Reported Key Findings

The Report found that 14.5 million consumers selected or automatically re-enrolled in marketplace health care coverage through HealthCare.gov during the 2022 OEP, 2.5 million more consumers than signed up for marketplace coverage during the 2021 OEP.  This reflects a 21 percent increase in enrollment over 2021 OEP enrollment.

Other findings highlighted in the Report include the following:

  • In HealthCare.gov states, 10.3 million consumers enrolled in health coverage during the 2022 OEP between November 1, 2021 and January 15, 2022.
  • Across the 18 SBMs, 4.3 million enrollees signed up for health coverage during the 2022 OEP from November 1, 2021 through the end of their respective reporting periods.
  • Nationwide, the number of new consumers signing up for Marketplace coverage during the 2022 OEP increased by 20 percent, to 3.1 million, from 2.5 million in the 2021 OEP.
  • Among consumers who attested to a race or ethnicity, 19 percent identified as Hispanic/Latino in the 2022 OEP, compared to 18 percent in the 2021 OEP, and the percent of consumers with a known race or ethnicity who identified as Black increased to 9 percent in the 2022 OEP, from 8 percent in the 2021 OEP.
  • Nationwide, 2.8 million more consumers are receiving APTC in 2022 compared to 2021. Additionally, 1.1 million consumers reported household incomes over 400% FPL during the 2022 OEP, who would not have been eligible for APTC without the American Rescue Plan (ARP). The average monthly premium after APTC fell by 19 percent, from $164 in 2021 to $133 in 2022, and 28 percent of consumers selected a plan for $10 or less per month after APTC during the 2022 OEP.
  • The percentage of all Marketplace consumers who received costsharing reductions (CSRs) increased slightly from the 2021 OEP to the 2022 OEP, from 47 percent to 49 percent, respectively.
  • The average monthly 2022 premium for HealthCare.gov enrollees was $111. If consumers had not received the additional APTC provided by the ARP, the average monthly premium after APTC for HealthCare.gov consumers would have been 53 percent higher, or $170.

The Report findings summarize data about health plan selections through the individual Marketplaces during the 2022 2022 OEP and includes OEP data for the 33 states with Marketplaces that use the HealthCare.gov eligibility and enrollment platform for the 2022 plan year (HealthCare.gov states), as well as for the 18 State-based Marketplaces (SBMs) that use their own eligibility and enrollment platforms.  For purposes of the Report, the 2022 OEP for the Health Insurance Marketplaces ran between November 1, 2021 and January 15, 2021 for the 33 states that used HealthCare.gov.  For the 18 State-based Marketplace (SBMs) states using their own platforms, the reporting period reflects plan selection and Marketplace activity from the beginning of OE on November 1, 2021, to the end of each SBM’s respective OEP and any run-out period. Any renewals processed before November 1, 2021, are also included.

Data Underlying Report

For those interested in evaluating the 2022 OEP enrollment results and trends, CMS has prepared a number of Public Use Files (PUFs) summarizing plan selection activity during the applicable OEPs in more detail including:

  • 2022 OEP State-Level Public Use File: The state-level PUF includes total health plan selections in all 50 states plus the District of Columbia. The PUF provides state-level data on metrics such as average monthly premium, financial assistance, age, gender, metal level, self-reported race and ethnicity, rural location, household income as a percent of the federal poverty level (FPL), and plan switching behavior among consumers with a plan selection. In addition, the state-level PUF includes data on dental plan selections and Basic Health Plan (BHP) enrollments. Certain data elements are only available for the 33 HC.gov states in 2022.
  • 2022 OEP State, Metal Level, and Enrollment Status Public Use File: The state, metal level, and enrollment status PUF contains data with stratifications by state, metal level and enrollment status. It includes total health plan selections in all 50 states plus the District of Columbia and state, metal level, and enrollment status-level data on enrollment status, average monthly premium, financial assistance, age, gender, self-reported race and ethnicity, rural location, metal level, and household income as percent FPL. Certain data elements are only available for the 33 HC.gov states in 2022.
  • 2022 OEP County-Level Public Use File: The county-level PUF includes total health plan selections, as well as data such as average monthly premium, financial assistance, age, gender, metal level, self-reported race and ethnicity, household income as a percent of the FPL, and plan switching behavior. In addition, the county-level PUF includes data on dental plan selections. This PUF only includes data for consumers with a plan selection in the 33 states that used the HC.gov platform in 2022.
  • 2022 OEP ZIP Code-Level Public Use File: The ZIP code-level PUF includes total health plan selections, the count of consumers with APTC, and average APTC among consumers with APTC. This PUF only includes data for consumers with a plan selection in the 33 states that used the HC.gov platform in 2022.
  • 2022 OEP Snapshot Public Use File: The Snapshot PUF presents data that CMS released during the 2022 OEP. It includes total health plan selections, including a breakdown of new and returning consumers, consumers on submitted applications, call center volume, and website usage. State-level health plan selection counts are also included.
  • Supplemental HC.gov Data: Data on availability and plan selections of Health Savings Account (HSA)-eligible plans and average and median deductibles of plans selected during the 2014-2022

To access these data files, see here.

Amber M. Rivers, Director of the Employee Benefit Security Administration Office of Health Plan Standards and Compliance will discuss “Department of Labor Health Plan Compliance and Enforcement Update” at a virtual program hosted by the American Bar Association Joint Committee on Employee Benefits from Noon to 1:30 p.m. Central Time on May 5, 2022. Solutions Law Press, Inc. author and publisher Cynthia Marcotte Stamer will moderate the program.

During the program, Ms. Rivers will the provide updates on the health plan eligibility, COVID emergency orders, surprise billing, mental health parity and other Department of Labor regulatory, compliance, audit, enforcement priorities and other health plan projects and developments.

For additional information about or to register for this program, see here.

More Information.

For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.

Solutions Law Press, Inc. invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations GroupHR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. 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 your profile here.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, well-known for her extensive work with health and other employee benefits, health care and life sciences, insurance, financial services, technology, and other highly regulated and performance reliant organizations and their leadership, Ms. Stamer works with these and other businesses and their management, employee benefit plans, insurers, health care and life sciences, governments and other organizations deal with all aspects of health care, human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, Form I-9 and other compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. her more than 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a practicing attorney, as well as as an industry, policy management consultant, and policy strategist as well through her leadership participation in professional and civic organizations. Examples of her many leadership involvements include service as the Vice President and Executive Director of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; Vice Chair of the ABA International Law Section Life Sciences and Health Committee; Vice Chair of the ABA Tort & Insurance Practice Section Medicine and Law Committee and former Vice Chair of its Employee Benefits Committee and its Worker’s Compensation Commitee; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, current Welfare Committee Co-Chair and past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

As part of these involvements, Ms. Stamer is scheduled to moderate the discussion of “Department of Labor Health Plan Compliance and Enforcement Update” with Amber M. Rivers, Director of the Employee Benefit Security Administration Office of Health Plan Standards and Compliance that the ABA Joint Committee on Employee Benefits is hosting on May 5, 2022. For additional information about or to register for this program, see here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com including the following:

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department 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.

©2022 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions  Law Press, Inc.™   For information about republication, please contact the author directly.  All other rights reserved.


2022 ACA Marketplace Open Enrollment Up 21% Over 2021 Open Enrollment

April 26, 2022

The Health Insurance Marketplaces 2022 Open Enrollment Report (“Report”) published by the Centers for Medicare and Medicaid Services last month reveals the 2022 Open Enrollment Period (“2022 OEP”) produced the highest enrollment in health care marketplace plans since passage of the Patient Protection and Affordable Care Act (“ACA”) 12 years ago.

A review of the data reveals a number of possible explanations for the increased enrollment including but not limited to Biden Administration emphasis on outreach, the expansion of the enrollment period and availability of subsidies, and more. Businesses sponsoring health plans, insurers and other payers, government and community leaders, taxpayers and other others may wish to evaluate this data and these implications further to assess their short term and long term implications on their health plan concerns and existing and proposed practices, governmental policy proposals and other planning considerations.

Reported Key Findings

The Report found that 14.5 million consumers selected or automatically re-enrolled in marketplace health care coverage through HealthCare.gov during the 2022 OEP, 2.5 million more consumers than signed up for marketplace coverage during the 2021 OEP.  This reflects a 21 percent increase in enrollment over 2021 OEP enrollment.

Other findings highlighted in the Report include the following:

  • In HealthCare.gov states, 10.3 million consumers enrolled in health coverage during the 2022 OEP between November 1, 2021 and January 15, 2022.
  • Across the 18 SBMs, 4.3 million enrollees signed up for health coverage during the 2022 OEP from November 1, 2021 through the end of their respective reporting periods.
  • Nationwide, the number of new consumers signing up for Marketplace coverage during the 2022 OEP increased by 20 percent, to 3.1 million, from 2.5 million in the 2021 OEP.
  • Among consumers who attested to a race or ethnicity, 19 percent identified as Hispanic/Latino in the 2022 OEP, compared to 18 percent in the 2021 OEP, and the percent of consumers with a known race or ethnicity who identified as Black increased to 9 percent in the 2022 OEP, from 8 percent in the 2021 OEP.
  • Nationwide, 2.8 million more consumers are receiving APTC in 2022 compared to 2021. Additionally, 1.1 million consumers reported household incomes over 400% FPL during the 2022 OEP, who would not have been eligible for APTC without the American Rescue Plan (ARP). The average monthly premium after APTC fell by 19 percent, from $164 in 2021 to $133 in 2022, and 28 percent of consumers selected a plan for $10 or less per month after APTC during the 2022 OEP.
  • The percentage of all Marketplace consumers who received costsharing reductions (CSRs) increased slightly from the 2021 OEP to the 2022 OEP, from 47 percent to 49 percent, respectively.
  • The average monthly 2022 premium for HealthCare.gov enrollees was $111. If consumers had not received the additional APTC provided by the ARP, the average monthly premium after APTC for HealthCare.gov consumers would have been 53 percent higher, or $170.

The Report findings summarize data about health plan selections through the individual Marketplaces during the 2022 2022 OEP and includes OEP data for the 33 states with Marketplaces that use the HealthCare.gov eligibility and enrollment platform for the 2022 plan year (HealthCare.gov states), as well as for the 18 State-based Marketplaces (SBMs) that use their own eligibility and enrollment platforms.  For purposes of the Report, the 2022 OEP for the Health Insurance Marketplaces ran between November 1, 2021 and January 15, 2021 for the 33 states that used HealthCare.gov.  For the 18 State-based Marketplace (SBMs) states using their own platforms, the reporting period reflects plan selection and Marketplace activity from the beginning of OE on November 1, 2021, to the end of each SBM’s respective OEP and any run-out period. Any renewals processed before November 1, 2021, are also included.

Data Underlying Report

For those interested in evaluating the 2022 OEP enrollment results and trends, CMS has prepared a number of Public Use Files (PUFs) summarizing plan selection activity during the applicable OEPs in more detail including:

  • 2022 OEP State-Level Public Use File: The state-level PUF includes total health plan selections in all 50 states plus the District of Columbia. The PUF provides state-level data on metrics such as average monthly premium, financial assistance, age, gender, metal level, self-reported race and ethnicity, rural location, household income as a percent of the federal poverty level (FPL), and plan switching behavior among consumers with a plan selection. In addition, the state-level PUF includes data on dental plan selections and Basic Health Plan (BHP) enrollments. Certain data elements are only available for the 33 HC.gov states in 2022.
  • 2022 OEP State, Metal Level, and Enrollment Status Public Use File: The state, metal level, and enrollment status PUF contains data with stratifications by state, metal level and enrollment status. It includes total health plan selections in all 50 states plus the District of Columbia and state, metal level, and enrollment status-level data on enrollment status, average monthly premium, financial assistance, age, gender, self-reported race and ethnicity, rural location, metal level, and household income as percent FPL. Certain data elements are only available for the 33 HC.gov states in 2022.
  • 2022 OEP County-Level Public Use File: The county-level PUF includes total health plan selections, as well as data such as average monthly premium, financial assistance, age, gender, metal level, self-reported race and ethnicity, household income as a percent of the FPL, and plan switching behavior. In addition, the county-level PUF includes data on dental plan selections. This PUF only includes data for consumers with a plan selection in the 33 states that used the HC.gov platform in 2022.
  • 2022 OEP ZIP Code-Level Public Use File: The ZIP code-level PUF includes total health plan selections, the count of consumers with APTC, and average APTC among consumers with APTC. This PUF only includes data for consumers with a plan selection in the 33 states that used the HC.gov platform in 2022.
  • 2022 OEP Snapshot Public Use File: The Snapshot PUF presents data that CMS released during the 2022 OEP. It includes total health plan selections, including a breakdown of new and returning consumers, consumers on submitted applications, call center volume, and website usage. State-level health plan selection counts are also included.
  • Supplemental HC.gov Data: Data on availability and plan selections of Health Savings Account (HSA)-eligible plans and average and median deductibles of plans selected during the 2014-2022

To access these data files, see here.

More Information.

For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.

Solutions Law Press, Inc. invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations GroupHR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. 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 your profile here.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, well-known for her extensive work with health and other employee benefits, health care and life sciences, insurance, financial services, technology, and other highly regulated and performance reliant organizations and their leadership, Ms. Stamer works with these and other businesses and their management, employee benefit plans, insurers, health care and life sciences, governments and other organizations deal with all aspects of health care, human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, Form I-9 and other compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. her more than 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a practicing attorney, as well as as an industry, policy management consultant, and policy strategist as well through her leadership participation in professional and civic organizations. Examples of her many leadership involvements include service as the Vice President and Executive Director of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; Vice Chair of the ABA International Law Section Life Sciences and Health Committee; Vice Chair of the ABA Tort & Insurance Practice Section Medicine and Law Committee and former Vice Chair of its Employee Benefits Committee and its Worker’s Compensation Commitee; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, current Welfare Committee Co-Chair and past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy and others.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.

As part of these involvements, Ms. Stamer is scheduled to moderate the discussion of “Department of Labor Health Plan Compliance and Enforcement Update” with Amber M. Rivers, Director of the Employee Benefit Security Administration Office of Health Plan Standards and Compliance that the ABA Joint Committee on Employee Benefits is hosting on May 5, 2022. For additional information about or to register for this program, see here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com including the following:

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department 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.

©2022 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions  Law Press, Inc.™   For information about republication, please contact the author directly.  All other rights reserved.


Texas Supreme Court Extends Emergency Order Providing COVID-19 Protections For Tenants

April 20, 2022

The Texas Supreme Court’s Fiftieth Emergency Order Regarding the COVID-19 State of Disaster (50th Order”) published today (April 20, 2022) reissues the judicial relief and procedures previously in effect under its Forty-Eighth Emergency Order (Misc. Dkt. No. 22-9015) in light of the U.S. Department of Treasury’s allocation of additional rental assistance funds to the Texas Department of Housing and Community Affairs (“TDHCA”) for the Texas Eviction Diversion Program.

Under the 50th Order, any Texas action for eviction to recover possession of residential property
under Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil
Procedure based, in whole or part, on the nonpayment of rent must comply with additional requirements and procedures beyond those typically required for residential convictions in the absence of the COVID-19 health care emergency.

Review the requirements of the 50th Order here.

Landlords and tenants contemplating or dealing with eviction or unpaid rent enforcement should review and follow these orders carefully.

More Information

For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.

Solutions Law Press, Inc. invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations GroupHR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. 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 your profile here.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.

Well-known for her extensive work with health and life sciences, insurance, employee benefits, health and other insurance, financial services, technology, energy, manufacturing, retail, hospitality, government contractors, governmental and other highly regulated employers, her more than 30 years’ of experience encompasses domestic and international businesses of all types and sizes.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources, employee benefits, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations.

Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see CynthiaStamer.com, her LinkedIn Profile or e-mail her directly.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com including the following:

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department 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.

©2022 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™   For information about republication, please contact the author directly.  All other rights reserved.