$350K Settlement Highlights Need For Plans & Plan Service Providers To Ensure Security, Business Associate & Other HIPAA Requirements Met

May 24, 2023

A newly announced Department of Health and Human Services Office of Civil Rights (“OCR”) Health Insurance Portability and Accountability Act (“HIPAA”) settlement agreement with a medical practice manager business associate highlights the need for health plans and other HIPAA covered entities ensure servers are properly secured and that that they and every third party administrator, technology, audit, accounting and other plan service provider with access to protected health information (“business associate”) can prove all necessary business associate agreements,m security safeguards and other policies and practices are in place in the event of a HIPAA breach, audit or other compliance event.

The latest warning comes from OCR’s May 16, 2023 announcement that medical practice manager MedEvolve, Inc. (“MedEvolve”) paid OCR $350,000 and committed to a corrective action plan under a resolution agreement reached to settle OCR charges that MedEvolve violated HIPAA by failing to properly secure servers containing its covered entity clients’ PHI, not obtaining required business associate agreements with business associate subcontractors, and violating other HIPAA requirements.  Like many service providers to medical practices, health plans or other HIPAA covered entities, MedEvolve was subject to HIPAA’s Privacy, Security, Breach Notification and business associate agreement requirements due to its access, possession, use, protection, and disclosure of PHI in the course of servicing its covered entity customers.

HIPAA Privacy, Security and Breach Rules Generally

HIPAA generally requires health care providers, health plans and insurers, health care clearinghouses (“covered entities”) and business associates to maintain the privacy and security of PHI as required by HIPAA.  In addition, HIPAA’s Security Rule requires covered entities and their business associates to conduct risk assessments and implement and administer appropriate safeguards and procedures to protect electronic PHI from improper use, access, disclosure or destruction and in the event of a breach, to provide notification and take other action required by HIPAA’s Breach Notification Rule.  HIPAA’s business associate rules also require both covered entities and their business associates to enter into business associate agreements that document the business associate’s commitment to adhere to HIPAA’s Privacy, Security and Breach Notification Rules before a business associate accesses PHI. 

Violators of these and other HIPAA Privacy, Security and Data Breach rules risk substantial civil monetary penalties assessed based of the culpability of the violation and adjusted annually for inflation. Based on the most recent annual inflation adjustments made in 2022, the current indexed penalty amounts as of May 24, 2023 for each violation of a HIPAA are follows:

  • Tier 1—lack of knowledge: The minimum penalty is $127; the maximum penalty is $63,973; and the calendar-year cap is $1,919,173.
  • Tier 2—reasonable cause and not willful neglect: The minimum penalty is $1,280; the maximum penalty is $63,973; and the calendar-year cap is $1,919,173.
  • Tier 3—willful neglect, corrected within 30 days: The minimum penalty is $12,794; the maximum penalty is $63,973; and the calendar-year cap is $1,919,173.
  • Tier 4—willful neglect, not corrected within 30 days: The minimum penalty is $63,973; the maximum penalty is $1,919,173  and the calendar-year cap is $1,919,173.

These amounts almost certainly will increase further when 2023 inflation adjustments are published.

While OCR can impose these significant civil monetary penalties for HIPAA violations, most violations are resolved outside the cumbersome and costly civil monetary penalty process.  Under HIPAA, OCR possesses the authority to negotiate resolution agreements with covered entities and business associates that allow covered entities and business associates OCR accuses of violating the HIPAA Privacy, Security or Breach Notification Rules to settle HIPAA charges without the assessment of authorized civil monetary penalties. The vast majority of HIPAA violations found by OCR are resolved through the resolution agreement process since the OCR typically sets the required settlement payment amount below the maximum civil monetary penalty amount and the accused party avoids the cost and disruption of the civil monetary process.  The newly announced MedEvolve settlement is the latest resolution of HIPAA violation charges announced by OCR

$350,000 MedEvolve Resolution Agreement Highlights Server and Service Provider Risk

The HIPAA charges against MedEvolve arose from deficiencies in MedEvolve’s implementation of its responsibilities to secure data, obtain business associate agreements with any subcontractors given access to client PHI, and other HIPAA obligations assumed under its business associate agreements with its customers. While MedEvolve’s customers generally were medical practices or other health care providers, self-insured health plans, health insurers and health plan service providers subject to HIPAA as covered entities and business associates often also rely upon third-party systems or services that involve sharing of health plan PHI with or rely upon third party provided servers, technology or other resources to collect and administer health plan data and administer health plan functions.

The OCR investigation of MedEvolve began in response to a series of breach notifications filed by MedEvolve with OCR.  As a provider of practice management, revenue cycle management, and practice analytics software services to medical practices, MedEvolve was a business associate responsible for the collection and administration of PHI for the health care providers it served. 

OCR’s investigation began after MedEvolve notified OCR of a breach of PHI’s on its server through an initial Breach Notification Report filed on July 10, 2018, which it supplemented by addendums filed on July 30, 2018 and August 12, 2020 (the “Reports”). According to the Reports, MedEvolve discovered on May 4, 2018 that a File Transfer Protocol (FTP) server containing PHI had been unsecure and accessible on the internet since January 1, 2018. The breach affected the PHI of a total of 230,572 individuals at two covered entities for which MedEvolve provided software and revenue cycle management services: Premier Immediate Medical Care, LLC (204,607 individuals affected) and the office of Dr. Beverly Held (25,965 individuals affected). The breached information included patient names, billing addresses, telephone numbers, primary health insurer and doctor’s office account numbers, and in some cases Social Security numbers. The OCR investigation uncovered evidence that PHI for both covered entities was viewed by at least one unauthorized individual while the FTP server was open to the public.

Based on its investigation, OCR concluded that MedEvolve violated HIPAA by:

  • Allowing the disclosure of PHI of 230,572 individuals;
  • Failing to enter into a business associate agreement with a subcontractor;
  • Failing to conduct a sufficiently accurate or thorough risk assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI held by it as a business associate was not sufficiently accurate or thorough.

To avoid the potentially much more significant civil monetary penalties that HIPAA authorizes OCR to impose for such breaches, MedEvolve entered into a resolution agreement with OCR that required MedEvolve to pay OCR $350,000 payment and take a series of corrective actions specified in the corrective action plan included in the resolution agreement.  To benefit from the resolution agreement, the resolution agreement requires MedEvolve to fully implement and adhere to all requirements of the corrective action plan including:

  • Conducting and preparing a report satisfactory to OCR of its complete risk assessment within 30 days and annually thereafter of the security risks and vulnerabilities of all electronic equipment, data systems, programs and applications controlled, administered, owned, or shared by MedEvolve or its affiliates that are owned, controlled or managed by MedEvolve that contain, store, transmit or receive MedEvolve ePHI;
  • Developing and implementing to the satisfaction of OCR an enterprise-wide risk management plan to address and mitigate any security risks and vulnerabilities identified in the risk analysis which includes a process and timeline for MedEvolve’s implementation, evaluation, and revision of its risk remediation activities;
  • Developing, maintaining, and revising, as necessary, to the satisfaction of OCR its written business associate agreements and any other policies and procedures to comply with Federal standards that govern the privacy and security of PHI;
  • Conducting training on the adopted HIPAA policies and procedures;
  • Retain all documents and records relating to compliance with the corrective action plan for six years from the effective date of the corrective action plan; and
  • If MedEvolve receives information that a workforce member may have failed to comply with the HIPAA policies and procedures (a “Reportable Event”), investigate promptly and notify HHS about its investigation findings within 60 days;
  • Submit to OCR monitoring for at least two years; and
  • Various other requirements for reporting, certification and notification to OCR.

MedEvolve agrees in the resolution agreement that OCR may treat as a breach and assess civil monetary penalties under HIPAA in the event of any failure by MedEvolve to fully comply with all requirements of the corrective action plan.

Warning To Other Health Plans and Other HIPAA Regulated Entities To Secure Servers And Other Systems With PHI

OCR’s announcement of the MedEvolve resolution agreement pointedly warns other covered entities and business associates to ensure the adequacy of their own and their business associates’ network and other servers and other HIPAA compliance as well as highlights many common compliance weaknesses that place covered entities and business associates at risk.

“Ensuring that security measures are in place to protect electronic protected health information where it is stored is an integral part of cybersecurity and the protection of patient privacy,” said OCR Director Melanie Fontes Rainer. “HIPAA regulated entities must ensure that they are not leaving patient health information unsecured on network servers available to the public via the internet.”

The MedEvolve server breach is one of the most common sources of HIPAA sanctions. Deficiencies in the security of servers of covered entities or their business associates are common HIPAA compliance deficiencies and raise significant enforcement and liability risks when a breach happens. Hacking/IT incidents were the most frequent (79%) type of large breach reported to OCR in 2022. Network servers are the largest category by location for breaches involving these large breaches.

Along with the frequency of these events, the risk of enforcement for server breaches is heightened by HIPAA breach reporting and investigation protocols. The HIPAA Breach Rule mandates expedited reporting for breaches of unsecured PHI affecting 500 or more people. As a matter of policy, OCR investigates every large breach report. Consequently, it is critical that HIPAA covered entities and their business associates use appropriate documented processes to identify, deter, protect against, detect, and respond to cybersecurity threats and malicious actors involving their servers.  Timely notification can mitigate exposure to additional liability for untimely breach notification. Where a large breach occurs, however, a covered entity or business associate can expect an investigation of the source of the breach as well as its overall compliance.

The resolution agreement also illustrates how HIPAA breach liability can arise from subcontracting of HIPAA covered responsibilities by a covered entity or business associate without ensuring the necessary business associate agreements and other HIPAA safeguards are implemented.

In light of reminders from enforcements like the MedEvolve resolution agreement, all covered entities and business associates should take documented steps to confirm the adequacy of security of all covered entity and business associate servers and other networks and storage devices with electronic PHI currently, whenever updates or other changes are implemented when evidence of potential compromise happens as well as on a scheduled periodic basis. Covered entities and business associates also should verify that they have in place appropriate business associate agreements with every service provider allowed to use, access or disclose PHI.  

Covered entities and business associates may wish to supplement the basic business associate agreement requirements mandated by the HIPAA Rules with additional safeguards providing for periodic reassurances or certifications of ongoing compliance, audit and investigation commitments, notification and other requirements regarding the use of subcontractors or delegated systems or services, provisions on indemnification and insurance commitments or other safeguards.   

For More Information

We hope this update is helpful. For more information about these or other health or other employee benefit, insurance, health care, workforce or other legal, management or public policyresponsibilities or developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as: 

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.

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EEOC COVID Guidance, Enforcement Highlights Need To Brace For COVID-Related ADA & Other Claims

May 17, 2023

Updated guidance published by the Equal Employment Opportunity Commission (“EEOC”) warns employers that the end of the COVID-19 health care emergency did not automatically end employers’ responsibilities to provide accommodations granted during the COVID-19 health care emergency, to consider new requests for accommodation from applicants or employees claiming disability from COVID-19 or other pandemic related conditions, or to comply with the medical confidentiality, interference and retaliation rules of the Americans with Disabilities Act.

EEOC Update COVID-19 Guidance For End Of Emergency

On May 15, 2023, the EEOC updated its publication on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Guidance”) to add supplement its prior guidance about the effect of the ADA and other federal discrimination laws during the COVID-19 health care emergency (the “Emergency”) to include guidance on the effect of the end of the federal declaration of the COVID-19 public health emergency that happened on May 11, 2023.

Since its original publication, the Guidance has made clear that the Americans with Disabilities Act (ADA) and the Rehabilitation Act workplace disability nondiscrimination, reasonable accommodation, and employer medical examinations and inquiries); Title VII of the Civil Rights Act prohibitions against race, color, national origin, religion, and sex, including pregnancy; Age Discrimination in Employment Act prohibitions against individuals age 40 or older; and the Genetic Information Nondiscrimination Act rules (collectively, the “EEO Laws”) remain in effect during the Emergency.  The Guidance also addressed a wide range of issues about how these EEO Laws applied during the Emergency and to COVID-19, including disability-related inquiries and medical examinations, how the definition of disability may apply to COVID-19 and Long COVID, confidentiality, reasonable accommodation based on disability, harassment, and vaccinations (including reasonable accommodation based on disability or religious beliefs). The May 15, 2023 updates to the Guidance address the implications of the May 11, 2023 end of the Emergency on these obligations as well as updates previously shared guidance on employer COVID-19 screening, testing, vaccination and other practices following the end of the Emergency.

Among other things, the Guidance confirms an employer must maintain and keep all information about a COVID-19 or any other illness or other medical information about an applicant or employee confidential and in a separate file in accordance with the ADA medical confidentiality rules.  The Guidance also confirms despite the end of the Emergency that an employer:

  • Should consult and follow current Centers for Disease Control (“CDC”) guidance about when and how long a worker with COVID-19 or COVID-19 symptoms should stay home or may safely return to the workplace;
  • May exclude employees with COVID-19 or COVID-19 symptoms associated with the workplace when consistent with CDC-recommended isolation protocols.  
  • May ask all employees who will be physically entering the workplace or otherwise working in close proximity with others if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC and if they have been tested for COVID-19 and if so, ask about the result;
  • May not ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or COVID-19 symptoms;
  • May only require employees to submit to having their temperature taken, COVID-19 testing or other medical screening when the employer can demonstrate that the testing meets the ADA “business necessity” standard or otherwise follows current CDC recommendations;
  • May ask an employee calling in sick, reporting illness while at work, or returning from travel whether the employee has COVID-19 or common symptoms of COVID-19 as identified by the CDC and if the employee responds affirmatively, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. The Guidance also addresses what other information an employer may ask an employee calling in sick, reporting illness while in the workplace, or returning following a period of absence due to COVID-19 infection.

The Guidance also makes clear the EEOC interprets the ADA as requiring covered employers to continue to comply with the ADA and the Rehabilitation Act requirements for evaluating and granting requests for accommodation received from applicants or employees during and after the end of the Emergency including requests by applicants or employees that may qualify as disabled due to long-COVID and other pandemic-related conditions.  The Guidance makes clear that this generally means that a covered employer must evaluate accommodations granted during the Emergency or requested post-Emergency to assess whether an employee or applicant is disabled within the meaning of the ADA and if so, if there exists a need to provide reasonable accommodation based on individualized circumstances. 

Regarding accommodation requests for employees qualifying as disabled from long-COVID, the Guidance shares common examples of possible reasonable accommodations, including a quiet workspace, use of noise canceling devices, and uninterrupted work time to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.

The updated Guidance also warns employers of their continued responsibility to remain alert for and prevent COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work as well as to prevent retaliation in the workplace against employees or applicants in violation of the ADA or other EEO Laws.

In all cases, the updated Guidance also alerts employers that changed risks, CDC guidance and other circumstances following the end of the Emergency may eliminate or undermine an employer’s ability to justify the denial of COVID-19 related accommodations as consistent with current CDC guidelines or as a business necessity.   

Employers Face Heightened COVID-19 Related Disability Risks

EEOC complaint and enforcement data as well as private litigation trends signal the advisability for covered employers to prepare to defend against ADA and Rehabilitation Act disability or other EEO Law discrimination, accommodation, leave and retaliation complaints.  Between April 2020 and December 2021, for instance, the EEOC reports receiving roughly 6,225 COVID-related discrimination charges.  The EEOC already has launched a plethora of lawsuits and other enforcement actions in response to many of these complaints.  See, e.g. EEOC Sues Total Systems Services for Disability Discrimination and Retaliation (March 29, 2023);  EEOC Sues United Labor Agency for Disability Discrimination (February 15, 2023).  The EEOC’s inclusion of ’employment discrimination associated with the COVID-19 pandemic and other threats to public health’ as among its priorities in its EEOC Draft Strategic Enforcement Plan published in January, 2023 reflects it plans to continue this heightened enforcement activity in the 2023 fiscal year paying particular attention to “discriminatory practices associated with the COVID-19 pandemic and other threats to public health,” such as:

  • pandemic-related harassment based on race, national origin, religion, disability, age, gender, or other protected characteristics;
  • unlawful denials of accommodations to individuals with disabilities or individuals with sincerely held religious beliefs, practices, or observances;
  • unlawful medical inquiries, improper direct threat determinations, or other discrimination related to disabilities that arose during or were exacerbated by the pandemic;
  • discrimination against persons who have an actual disability or are regarded as having a disability related to COVID-19, including individuals with long COVID, and pandemic-related caregiver discrimination based on a protected characteristic.”

In light of the aggressive EEOC complaint and enforcement record, all employers covered by the ADA, the Rehabilitation Act or other EEO Laws should be concerned about their likely elevated exposure to COVID-19 associated disability or other related EEO Law charges and lawsuits.  should review and update their existing workplace practices, policies, accommodation practices and decisions, and related communications to verify their defensibility in light of the end of the Emergency.  When conducting this review, most employers also should reassess the continued appropriateness of prior or current accommodation decisions in light of changed CDC guidance and other circumstances that may impact on the business’s ability to justify these decisions in light of changed circumstances.  Because of the likely sensitivity of discussions and analysis arising in connection with these assessments, employers may wish to seek the advice of qualified legal counsel regarding these evaluations as well as opportunities to structure them to safeguard potentially sensitive discussions within the protection of attorney-client privilege. 

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.  

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as: 

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.

Comments Off on EEOC COVID Guidance, Enforcement Highlights Need To Brace For COVID-Related ADA & Other Claims | Corporate Compliance | Permalink
Posted by Cynthia Marcotte Stamer

Austin Bar Faces EEOC Pregnancy Discrimination Suit Before Added PWFA Protections Take Effect June 27

May 15, 2023

An Austin, Texas bar faces an Equal Employment Opportunity Commission (“EEOC”) lawsuit after allegedly firing a worker for being pregnant. The suit sends a warning to employers about the risks of pregnancy discrimination as protections for pregnancy are set to expand when the federal Pregnant Worker Fairness Act (PWFA) becomes effective next month.

The lawsuit signals the REOC’s continuing commitment to enforce pregnancy discrimination laws including new pregnancy accommodation mandates set to take effect June 27. The Pregnant Workers Fairness Act (PWFA), set to go into effect on June 27, 2023, will require employers to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions.

The pregnancy discrimination suit filed by the EEOC accuses Corner Bar with illegally discriminating against a female bartender by reducing her hours and terminating her because she was pregnant.

According to the EEOC’s suit, the female bartender told her managers she was pregnant. Soon after her pregnancy became visible, her hours were cut and she was taken off the closing shifts, which were among the most profitable. Corner Bar later informed the bartender in a phone call that the business was “parting ways” with her, the EEOC said.

The lawsuit against three limited liability companies that operate Corner Bar and other Austin-area hospitality businesses charges the alleged conduct violates Title VII of the Civil Right Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on pregnancy. The EEOC is seeking back pay, compensatory and punitive damages, and appropriate injunctive relief to prevent similar discriminatory practices in the future.

The EEOC announcement of the lawsuit warns other businesses against pregnancy discrimination.

“This lawsuit should serve to remind employers that federal law clearly prohibits employers from discriminating against employees on the basis of pregnancy, childbirth or related medical conditions,” said Philip Moss, a trial attorney with the EEOC’s San Antonio Field Office. “The EEOC remains committed to fighting discrimination based on sex in the workplace, including pregnancy discrimination, in all of its forms.”

The announcement also makes clear this readiness extends to the impending requirements of the PWFA. Robert Canino, regional attorney for the Dallas District Office, added, “Employers violate discrimination laws when they deny women opportunities based on stereotypes and unfounded assumptions about what they are able to do during and after pregnancies. As a matter of fact, the importance of these workplace pregnancy discrimination issues is further re-enforced by the federal Pregnant Worker Fairness Act (PWFA), which becomes effective next month.”

All covered employers should take immediate steps to update policies, postings, training and practices to ensure their ability to defend their compliance with the PWFA and other federal and state pregnancy discrimination, leave and accommodation requirements.

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.  

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as: 

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.

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Posted by Cynthia Marcotte Stamer

Education Association Union Sued For Race Discrimination

May 4, 2023

Discrimination lawsuits against employers are common. Suits against unions are rare. However that’s what’s happening to Sunnybrook Education Association, IEA-NEA, (“Sunnybrook Union”), a labor union representing teachers and educational support personnel in the Sunnybrook School District.

In the lawsuit EEOC v. Sunnybrook Education Association, IEA-NEA, 1:23-cv-02804) filed in the U.S. District Court of Illinois, Northern District, Eastern Division today, the Equal Employment Opportunity Commission (“EEOC”) charges Sunnybrook Union with violating federal civil rights law by blocking the promotion of an African American custodian to the role of head custodian because of his race,

The EEOC said that Sunnybrook Union grieved the promotion of a Black employee of Sunnybrook School District 171 rather than ignoring the promotion or negotiating a memorandum of understanding, as it had done in other cases where non-Black employees received promotions or salaries that did not conform to the collective bargaining agreement (“CBA”).

The lawsuit charges this conduct violates Title VII of the Civil Rights Act, which prohibits labor organizations from discriminating against members on the basis of race and causing or attempting to cause an employer to discriminate against an individual because of their race, sex, religion, or other protected class. The EEOC is seeking full relief, including back pay, compensatory damages, punitive damages, and a commitment from the union to permit the employee to receive his promotion and raise.

Comments of EEOC officials about the lawsuit show the EEOC is serious about prosecution of workplace race discrimination whether committed by labor or management. “The Sunnybrook Union should be opening doors for the employees it represents, not standing in the way of their advancement,” said Gregory Gochanour, the EEOC’s regional attorney in Chicago. “Here, we have an employee doing the job of a head custodian but prevented from receiving the benefits of that job because of his race.”

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.  

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as: 

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.

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Biden-⁠Harris Administration Ending COVID-⁠19 Vaccination Requirements For Federal Employees, Contractors, International Travelers, Head Start Educators & CMS-Certified Facilities

May 3, 2023

COVID-19 vaccination requirements for federal contractors and employees, Centers for Medicare and Medicaid (“CMS”) certified health care and other providers, Head Start educators and international travelers implemented in 2021 in response to the COVID-19 health care emergency.

The Whitehouse announced requirements for Federal employees, Federal contractors, and international air travelers will end at the end of the day on May 11, the same day that the COVID-19 public health emergency ends. Additionally, the Department of Health and Human Services (“HHS”) and Department of Homeland Security (“DHS”) also announced they are starting the process to end their vaccination requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border at a date to be announced soon.

Once the applicable mandate ends, organizations subject to these mandates, like private sector organizations not currently subject to them, will need to decide whether and when their organizations will impose these mandates as part of their occupational health and safety policies.

Organizations deciding to continue requiring vaccination will need to design their program to appropriately accommodate disability and religious concerns of employees in accordance with Equal Employment Opportunity Commission rules.

All organizations also need to use care to avoid discrimination or retaliation against workers in violation of federal laws and to address requests for accommodation for employees suffering from long COVID.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.  

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pandemic and other health and safety, financial, workforce and other organizational crisis, change and workforce, employee benefit, health care and other operations planning, preparedness and response for more than 30 years. As a part of this work, she regularly advises businesses and government leaders on an an demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to operational, health care, natural disaster, economic and other crisis and change.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privaitization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as: 

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.

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Posted by Cynthia Marcotte Stamer

Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities

May 1, 2023

Group health plans and insurers must ensure their programs don’t violate the Mental Health Parity and Addiction Equity Act (“MHPAEA”) by improperly limiting or excluding coverage for the treatment of autism or mental therapy developmental disorders.

MHPAEA requires group health plans and health insurance issuers that offer mental health benefits to ensure that mental health benefit financial requirements and nonquantitative treatment limitations are generally no more restrictive than those applied to medical/surgical benefits. The Department of Labor Employee Benefit Security Administration (“EBSA”) has identified MHPAEA autism and other mental health and substance abuse coverage enforcement as a key priority in its current fiscal year enforcement plan. Violation of its prohibitions is costly. Aside from any costs of providing wrongfully denied coverage and defense costs for resulting investigations and enforcement, violations generally also trigger that the employer is accountable for self-identifying, reporting and paying excise tax penalties imposed for MHPAEA violations under Internal Revenue Code Section 6039D to avoid even more penalties unless an exception applies.

Although many diagnosticians and courts consider autism a neurological rather than psychological disorder, EBSA often interprets and enforces MHPAEA as applicable to Applied Behavior (ABA) therapy and other treatment for autism, For instance, an EBSA Benefits Advisor stepped in to assist a Seattle family encountering difficulty communicating with their health plan regarding claims for their child the plan reprocessed the claims, resulting in an additional $20,000 of coverage. Another parent contacted an EBSA Benefits Advisor in the Dallas Regional Office for assistance with claims that had not been paid. After the Advisor contacted the plan to resolve the issue, this family received approximately $24,000 they were owed.

EBSA also has taken more formal enforcement actions in other instances. For example, EBSA’s Los Angeles Regional Office recently investigated a large service provider that excluded coverage for ABA therapy in hundreds of self-insured plans. The EBSA investigation resulted in 3 plans removing their exclusion for ABA therapy and offering coverage for that benefit moving forward, affecting more than 18,000 participants and their beneficiaries.

Meanwhile, an investigation by EBSA’s Chicago and Dallas Regional Offices into an ABA therapy exclusion resulted in a large claims administrator adding ABA therapy as a default coverage option for all of its self-insured plans. This correction resulted in the elimination of the exclusion of ABA therapy for autism for nearly one million participants.

To protect access to autism benefits, EBSA also works closely with other federal agencies, such as the U.S. Department of Health and Human Services. For example, EBSA assisted HHS’ Centers for Medicare and Medicaid Services in investigating an improper appeals process following the denial of coverage for autism treatment by a plan for a large school district. In the end, the plan reimbursed a total of $2,464 in unpaid claims to the participant.

The actions relating to ABM therapy and other autism-related treatment are part of a broader, high-priority EBSA and Department of Health and Human Services MHPAEA compliance and enforcement initiative which prioritizes enforcement of compliance by health plans and health insurers with MHPAEA’s mandates that health plans and insurance policies of covered health plans and insurers comply with its requirement of parity in the coverage provided for mental health and substance abuse care as compared to other care. To fulfill these requirements, health plans and insurers covered by MHPAEA must be prepared to produce documentation of their audit and analysis to demonstrate that any quantitative or qualitative requirements applicable to mental health or substance abuse coverage in form or operation are not greater than those applied to other comparable benefits. Meeting this burden generally requires significant documented analysis regarding the plan design and administration taking into complicated HPAEA regulations. Additionally, health plans and insurers also should ensure that their administrative practices and notifications comply with additional MHPAEA requirements applicable to claim determinations involving adverse benefit determinations for mental health or substance abuse treatment, as well as otherwise applicable Patient Protection and Affordable Care Act (“ACA”), Employee Retirement Income Security Act (“ERISA”) and for insured plans or policies, state insurance rules.

In the face of these and other enforcement actions, group health plans, their sponsors, their insurers, fiduciaries, administrators and employer and other MHPAEA-covered health benefit program sponsors, fiduciaries and administrators are urged to seek review and advice from legal counsel experienced with MHPAEA and other rules impacting autism diagnosis and treatment coverage about the adequacy and defensibility of their health program as it relates to coverage for autism and other developmental disabilities.

Additionally, employers also are reminded that autism and other developmental and neurological disorders also generally qualify as disabilities qualify for protection against discrimination and require accommodation under the Americans With Disabilities Act (“ADA”).

Along with the EBSA enforcement, private participants and beneficiaries of private employer-sponsored health plans also can bring lawsuits to recover benefits and other relief for violations of MHPAEA.  Along with the actual damages, attorneys’ fees and other costs of enforcement, a successful MHPAEA enforcement also typically will reveal the sponsoring employer or union’s failure to make the required self-disclosure and excise tax payments mandated for violations under Internal Revenue Code Section 6039D, triggering added penalties beyond the initial penalties triggered by the uncorrected violation.  Furthermore, delayed discovery of these violations also makes correction particularly costly for self-insured plans and their sponsors as deadlines for submitting expenses to qualify for stop loss reimbursement often will have passed by the time the liability comes to light.  Accordingly, employer and other health plan sponsors, their fiduciaries and adminstrators generally will want to audit and monitor their health plan’s compliance with the MHPAEA throught the calendar year and as plan year or stop loss filing deadlines approach to mitigate these exposures.  

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.  

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

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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pandemic and other health and safety, financial, workforce and other organizational crisis, change and workforce, employee benefit, health care and other operations planning, preparedness and response for more than 30 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of change and in response to operational, health care, natural disaster, economic and other crisis and change.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health care, health and other benefits, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here such as:

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.

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Posted by Cynthia Marcotte Stamer

Labor Department Shares Resources on PERM and H-2A Program Updates

May 1, 2023

Businesse using foreign workers with H-1B visas should check out these webinar materials from the Office of Foreign Labor Certification (OFLC) explaining developments on the new Adverse Effect Wage Rate Rule in the H-2A Program and changes to the new PERM Form ETA-9089 and the PERM Program. Employers of workers hired under these programs must to comply to avoid significant liabilities.

Presentation Materials for the H-2A Program New AEWR Rule:

Presentation Materials for the PERM Program:

Also the Labor Department says a OFLC Stakeholder Webinar on New Form ETA 9089 Recording April 2023 will be available soon.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

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

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 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with gender and other discrimination and others workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. 

A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail 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 available here.

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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.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide 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 legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve 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 author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone 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. Readers acknowledge and agree to the conditions of this Notice as a condition of their access 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.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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