December 2023

EEOC Publish Guidance Discrimination & Accommodation Duties Applying Vaccine Mandates

December 22, 2023

The U.S. Equal Employment Opportunity Commission (EEOC) today posted updated and expanded technical assistancerelated to the COVID-19 pandemic, addressing questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity (EEO) laws.

The expanded technical assistance provides new information about how Title VII of the Civil Rights Act of 1964 applies when an applicant or employee requests an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely held religious beliefs, practices, or observances. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.

“This update provides employers, employees, and applicants with important assistance when navigating vaccine-related religious accommodation requests,” said EEOC Chair Charlotte A. Burrows. “Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19.”

The key updates to the technical assistance are summarized below:

Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

The EEOC is providing this information to the public as many employers are requiring employees to be vaccinated against COVID-19 as a condition of their employment.

This technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. As new developments occur, the EEOC will consider any impact they may have on EEOC’s COVID-19 technical assistance and will provide additional updates and assistance to the public as needed.

More information about the civil rights implications of the COVID-19 pandemic is available in the record of the EEOC’s April 28, 2021hearing on that topic. Employers and others involved in administering the workplace should carefully monitor developments and manage risks amid the evolving regulatory and workplace environment.

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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.

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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 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. At her career, she has worked extensively with healthcare and other employers to manage discrimination and other workplace and employee benefit compliance and risks. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, 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 legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.

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.

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NOTICE: These statements and materials are for general informational and educational 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 circumstances 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 make 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 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. Readers acknowledge and agree to the conditions of this Notice as a condition of their access to this publication.

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Posted by Cynthia Marcotte Stamer

Construction Industry Urged To COVID-19 Safety & Timekeeping Protocols

December 22, 2023

Construction industry government contractors and subcontractors should review their policies are up-to-date with new vaccination and other COVID-19 safety requirements applicable to government contractors under as well as other current and emerging Biden-Harris Administration rules and enforcement policies impacting construction industry contractors and subcontractors.

Along with the new rules on COVID-19 vaccination and other safety requirements, the Department of Labor, Wage and Hour Division (“WHD”) also has updated various other wage and hour requirements for Davis-Bacon Act-covered construction industry contractors. In September, 2021, for instance, WHD published an updated Davis-Bacon Wage Determination Conformance Request Guide that details the information and construction types contained in wage determinations and provides additional clarity regarding the limited circumstances in which contractors and contracting agencies may need to request that WHD add a new class of laborer or mechanic to a published wage determination for a specific contract. The Guide also contains other useful resources to help construction contractors and contracting agencies comply with the requirements of the Davis-Bacon and Related Acts.

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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.

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IRS Warns Of Fraudulent Promotion of COVID Employee Retention Credits

December 22, 2023

As promoters continue to blanket businesses with promises to secure Employee Retention Credits (“ERCs”), the Internal Revenue Service (“IRS”) is warning businesses to review carefully the guidelines before trying to claim the credit before filing.

The IRS warns that the IRS and tax professionals continue to see third party promoters that charge large upfront fees or a fee contingent on the amount of the refund aggressively promoting these ERC schemes on radio, online and through telemarketing. Frequently the promoters may not inform taxpayers that wage deductions claimed on the business’ federal income tax return must be reduced by the amount of the credit.

“While this is a legitimate credit that has provided a financial lifeline to millions of businesses, there continue to be promoters who aggressively mislead people and businesses into thinking they can claim these credits,” said Acting IRS Commissioner Doug O’Donnell. “Anyone who is considering claiming this credit needs to carefully review the guidelines. If the tax professional they’re using raises questions about the accuracy of the Employee Retention Credit claim, people should listen to their advice. The IRS is actively auditing and conducting criminal investigations related to these false claims. People need to think twice before claiming this.”

The IRS has been warning about this scheme since last fall, but there continue to be attempts to claim the ERC during the 2023 tax filing season. Tax professionals note they continue to be pressured by people wanting to claim credits improperly. The IRS Office of Professional Responsibility is working on additional guidance for the tax professional community that will be available in the near future.

People and businesses can avoid this scheme, and by not filing improper claims in the first place. If the business filed an income tax return deducting qualified wages before it filed an employment tax return claiming the credit, the business should file an amended income tax return to correct any overstated wage deduction.

Businesses should be cautious of advertised schemes and direct solicitations promising tax savings that are too good to be true. Taxpayers are always responsible for the information reported on their tax returns. Improperly claiming the ERC could result in taxpayers being required to repay the credit along with penalties and interest.

What is the ERC?

The ERC is a refundable tax credit enacted as part of COVID relief designed for businesses who continued paying employees while shut down due to the COVID-19 pandemic or who had significant declines in gross receipts from March 13, 2020, to Dec. 31, 2021. Eligible taxpayers can claim the ERC on an original or amended employment tax return for a period within those dates.

To be eligible for the ERC, employers must have:

sustained a full or partial suspension of operations due to orders from an appropriate governmental authority imiting commerce, travel or group meetings due to COVID-19 during 2020 or the first three quarters of 2021,
experienced a significant decline in gross receipts during 2020 or a decline in gross receipts during the first three quarters of 2021, or
qualified as a recovery startup business or the third or fourth quarters of 2021.

As a reminder, only recovery startup businesses are eligible for the ERC in the fourth quarter of 2021. Additionally, for any quarter, eligible employers cannot claim the ERC on wages that were reported as payroll costs in obtaining PPP loan forgiveness or that were used to claim certain other tax credits.

To report tax-related illegal activities relating to ERC claims, submit by fax or mail a completed Form 14242, Report Suspected Abusive Tax Promotions or Preparers and any supporting materials to the IRS Lead Development Center in the Office of Promoter Investigations.

Mail: Internal Revenue Service Lead Development Center
Stop MS5040
24000 Avila Road
Laguna Niguel, California 92677-3405
Fax: 877-477-9135

Employers should also report instances of fraud and IRS-related phishing attempts to the IRS at phishing@irs.gov and Treasury Inspector General for Tax Administration at 800-366-4484.

Go to IRS.gov to learn more about eligibility requirements and how to claim the Employee Retention Credit:

For qualified wages paid after March 12, 2020, and before Jan. 1, 2021 – Notice 2021-20; Notice 2021-49; and Revenue Procedure 2021-33.
For qualified wages paid after Dec. 31, 2020, and before July 1, 2021 – Notice 2021-23, Notice 2021-49 and Revenue Procedure 2021-33.
For qualified wages paid after June 30, 2021, and before Oct. 1, 2021 – Notice 2021-49 and Revenue Procedure 2021-33;
For qualified wages paid after Sept. 30, 2021, and before Jan. 1, 2022 – Notice 2021-49 and Notice 2021-65.

Other information and resources also include:

Employee Retention Credit – 2020 vs 2021 Comparison Chart
Form 941-X Instructions (April 2022 Revision)– for use in conjunction with Form 941 Instructions from relevant calendar quarter
Form 941 Instructions (December 2021 Revision);
Form 941 Instructions (2020 Revisions):
Form 943, 943-X, 944, 944-X, CT-1 and CT-1-X Instructions

The bottom line of these and other IRS warnings is that taxpayers improperly claiming these credits risks penalties and other liabilities even if they act in good faith reliance on assurances by a promoter or other party. Consequently, any party filing for these credits should independently confirm eligibility. Additionally, taxpayers should get and retain copies of any opinions, advice or other analysis and authorities relied upon in case of a challenge.

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About the Author

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.

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Posted by Cynthia Marcotte Stamer

OSHA Enforces Whistleblower Rights Of Worker Terminated For Expressing COVID-19 Safety Concerns

December 22, 2023

The October 28, 2022 Federal District Court ruling in Walsh v. Community Health Center of Richmond Inc. and Henry Thompson reminds employers that preventing workplace retaliation is as significant responsibility as the more commonly recognized duty to maintain safe workplaces and prevent workplace injuries under the Occupational Safety and Health Act (“OSH Act”) or other federal whistleblower acts administered enforced by the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”).

Along with requiring employers to maintain safe workplaces and follow a host of other specific safety and recordkeeping requirements, the OSH Act and its implementing rules protect workers who report a hazardous work condition from retaliation. OSHA enforces these rules as well as a multitude of other whistleblower rules.

OSHA sued Community Health Center of Richmond Inc. and its CEO, Henry Thompson (the “employer” or (“Community Health Center”) for allegedly violating the OSH Act’s whistleblower safeguards by suspending and later terminating Qiana Nunez for raising concerns about the potential for COVID-19 exposure at an in-person staff meeting during the COVID-19 pandemic.

At the beginning of the COVID-19 pandemic, Qiana Nunez worked for Community Health Center as an Executive Office Manager. Concerned about the potential spread of COVID-19 at Community Health Center’s planned in-person executive leadership meeting on March 17, 2020, Ms. Nunez sent an email to participants alerting them that the meeting would instead be held by teleconference. After CEO Thompson instructed her to re-set the meeting as an in-person meeting, Ms. Nunez did so, but told Thompson that she would not attend out of concern for her health. Two days later, Ms. Nunez was suspended from her duties for “insubordination, confrontational and disruptive behavior, and refusal to participate in the . . . leadership meeting on Tuesday, March 17, 2020.” Ms. Nunez subsequently received a letter in April, 2020, informing her that Community Health Center was “exercising our employer right to terminate your at-will employment.”

On May 7, 2020, Nunez filed a complaint with the Occupational Safety and Health Administration (“OSHA”) pursuant to Section 11(c) of the Occupational Safety and Health Act (“OSH Act”), alleging that defendants suspended and terminated her for making a complaint about unsafe conditions at the March 17, 2020 meeting, and for her refusal to attend.

On June 17, 2020, while the Secretary’s Section 11(c) investigation was ongoing, Nunez also sued Community Health Center and Mr. Thompson-in federal court, asserting wage claims under the Fair Labor Standards Act and New York Labor Law and violations of New York Labor Law § 740. See Nunez v. Cmty. Health Ctr. of Richmond, Inc., No. 1:20-cv-03036 (E.D.N.Y.) (the “Prior Action”). N.Y.L.L. § 740 protects employee-whistleblowers from adverse employment action. In her original complaint, Ms. Nunez identified then-Governor Andrew Cuomo’s March 16, 2020 COVID-related Executive Order as the law allegedly violated by defendants, but later amended her complaint to assert that the violation was OSH Act’s General Duty Clause.

Section 11(c)(1) of the OSH Act provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.” Section 11(c)(2) further provides that “[a]ny employee who believes that [she] has been discharged or otherwise discriminated against by any person” in violation of Section 11(c)(1) may “file a complaint with the Secretary [of Labor] alleging such discrimination.” If the Secretary believes Section 11(c)(1) was violated, “[the Secretary] shall bring an action in any appropriate United States district court against such person.” Only the Secretary may sue under Section 11(c)(2); there is no private right of action. See Donovan v. Occupational Safety and Health Rev. Comm’n, 713 F.2d 918, 926 (2d Cir. 1983).

On October 9, 2020, the employer served a partial motion to dismiss the Prior Action arguing that because Nunez lacked a private right of action under the OSH Act, she could not predicate her state whistleblower claim on alleged OSH Act violations. Before briefing was completed, however, a settlement reached between Ms. Nunez and the employer. See Walsh v. Cmty. Health Ctr. of Richmond, 21-CV-3094 (ARR)(TAM), (E.D.N.Y. Sep. 28, 2022)

In light of the settlement reached in the state action, the employer in October 2021 moved for the court to bar and dismiss OSHA’s action seeking individual damages for the whistleblower arguing that the dismissal of the former employee’s prior state whistleblower claim prevents the department from obtaining monetary relief for the aggrieved worker. The employer argued the Department’s actions were barred by claim preclusion seeking money damages to be paid to defendants’ former employee, Qiana Nunez because Ms. Nunez litigated similar claims to final judgment in a prior lawsuit. The employers argued this prior litigation barred the Secretary from seeking monetary relief payable to Ms. Nunez in this action.

On Sept. 28, 2022, a federal court ruled in Walsh v. Cmty. Health Ctr. of Richmond that the prior litigation did not bar the Secretary from pursing the whistleblower damages on behalf of the employee because of the department’s exclusive authority to seek damages for individual whistleblowers under the OSH Act. The court recognized when the department brings such actions, it does so to vindicate broader public rights and reaffirmed the central importance of strong whistleblower protection provisions and enforcement.

The decision has significant implications significant implications both for COVID-19 related and other OSH Act whistleblower claims as OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 24 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities. The decision confirms both the willingness and the authority of OSHA to pursue federal enforcement under the OSH Act and potentially other federal whistleblower laws and its willingness to use this authority to seek recovery when state law whistleblower laws fail to produce a remedy for OSH Act whistleblower violations.

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About the Author

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.

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Posted by Cynthia Marcotte Stamer

Children’s Hospital Pays $45K To Resolve COVID Vaccine Religious Discrimination Suit

December 22, 2023

Pandemic’s End Doesn’t End COVID-19 Employer Headaches

Children’s Healthcare of Atlanta, Inc. (“CHOA”) is paying $45,000 to settle a religious discrimination lawsuit arising from its failure to grant a religious exemption from its COVID-19 vaccination requirements for a maintenance worker. The lawsuit highlights the continuing importance of all employers to use care when handling request for religious accommodation to vaccine or other workplace requirements.

The lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) arises from the 2019 denial of a request for a religious exemption to CHOA’s COVID-19 vaccine mandate made by a maintenance worker. CHOA previously had granted the same employee a religious exemption for vaccine mandates in 2017 and 2018. In 2019, however, CHOA denied the employee’s request for a religious accommodation and fired him, despite the employee working primarily outside and his position requiring limited interaction with the public or staff the EEOC said.

The EEOC alleged the denial of the vaccine exemption violated Title VII of the Civil Rights Act of 1964, which prohibits firing an employee because of their religion and requires that employers reasonably accommodate the sincerely held religious beliefs of their employees.

Under the consent degree entered in Ciil Action No. 1:22-CV-04953-MLB-RDC in U.S. District Court for the Northern District of Georgia, CHOA will pay $45,000 in monetary damages to the former employee. CHOA will also adjust its influenza vaccine religious exemption policy to presume the exemption eligibility of employees with remote workstations or who otherwise work away from the presence of other employees or patients, and to protect the ability of such employees to seek alternative positions within CHOA if their religious exemption request is denied. The decree further provides that CHOA will train relevant employees on religious accommodation rights under Title VII.

The EEOC announcement of the consent degree alerts employers of the continuing need to use care when handling religious accommodation requests to vaccine or other workplace policies. “ It is the responsibility of an employer to accommodate its employees’ sincerely held religious beliefs,” the announcement quotes Marcus G. Keegan, the regional attorney for the EEOC’s Atlanta District Office. “Unless doing so would require more than a minimal cost, an employer may not deny requested religious accommodations, let alone revoke those previously granted without issue. The EEOC is pleased that the employee has been compensated and that CHOA has agreed to take steps to ensure that it meets its obligation to evaluate religious accommodation requests in a manner consistent with federal law.”

Likewise, the announcement quotes Darrell Graham, district director of the Atlanta office, as saying , “The arbitrary denial of religious accommodations drives religious discrimination in the workplace. The EEOC remains committed to enforcing the laws that protect employees’ religious practices.”

CHOA’s denial of the exemption happened at the height of the COVID-19 pandemic. Federal COVID – 19 vaccination mandates now are all ended. While federal mandates initially dictated COVID-19 vaccination as a condition of participation in Medicare by healthcare providers, for government contractors and others, the original mandates were quickly revised to include religious exemption requirements before court rules, agency action and the end of the Pandemic put an end to these mandates. During and after the federal mandates, however, employers were required to negotiate a minefield of competing concerns and potential liabilities when deciding what and how to mandate and enforce safety, leave and other rules without running afoul of employment discrimination and whistleblower claims. See, e.g., EEOC COVID Guidance, Enforcement Highlights Need To Brace For COVID-Related ADA & Other Claims; Texas Private Employer COVID-19 Vaccination Mandates Prohibited Effective February 6, 2024; IRS Warns Of Fraudulent Promotion of COVID Employee Retention Credits; OSHA Enforces Whistleblower Rights Of Worker Terminated For Expressing COVID-19 Safety Concerns; Biden-⁠Harris Administration Ending COVID-⁠19 Vaccination Requirements For Federal Employees, Contractors, International Travelers, Head Start Educators & CMS-Certified Facilities; SCOTUS To Hear Oral Arguments on OSHA COVID-19 Vaccination Rule Enforceability On January 7; COVID-19 Vaccination Rule Injunctions Leave Employers With Significant Liability Challenges Even As OSHA Extends Comment Period on OSHA COVID-19 Vaccine ETS; Manage Heightened Retaliation Exposures Arising From COVID-19 Safety, Return-To-Work & Other Practices

While the federal COVID-19 vaccine mandate is gone, many healthcare and other employers continue to impose mandate requirements with appropriate disability and religious exemptions as part of their workplace safety and patient safety protocols. Additionally, beyond the Covid – 19 vaccination protocols, many workplace vaccination and other rules also can create conflicts with certain religious beliefs that prompt religious accommodation requests.

Employers administering these vaccination, and other policies must keep in mind that the duty to offer religious accommodation and the EEOC emphasis on enforcing accommodation rights for workers whose deeply held religious beliefs conflict with workplace rules lives on. The perils remain, even if the requirement is supported by well, established patient or workplace safety protocols. Employers need to evaluate and be prepared to defend their inability to accommodate the safety and other concerns underlying the workplace mandate against a potential religious discrimination challenge.

Employers must remain diligent in their management of responses to request for accommodations keeping in mind that EEOC COVID-19 – era guidance imposes a heavy burden on an employer to justify its refusal of a request. For this reason, employers that receive a request for religious of accommodation from an employee should seek the advice of experienced legal counsel as soon as possible if any question exists about whether the employer will grant the request. Employers also should ensure their policies clearly communicate the availability of religious and disability accommodation from these other requirements, establish clear protocols for requesting and processing those requests and prohibit and prevent retaliation.

To promote defensibility, employers also should consult with experienced legal counsel about the use of attorney, client, privilege, and other protocols to prevent or minimize the risk that discussions and actions in response to, or following a request for accommodation creates evidence of discrimination or retaliation.

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About the Author

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.

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Posted by Cynthia Marcotte Stamer

Prepare Feedback! Tri-Agencies Plan To Reopen Surprise Billing Proposed Dispute Resolution Rule Comment Period

December 22, 2023

Got issues with the most recent articulation of the proposed rule on “Federal Independent Dispute Resolution (IDR) Operations” (“Rule”) that governs the independent dispute resolution process for resolving to disputes over out-of-network claims between health plans and heath care providers under the No Surprises Act?

The Departments of Health and Human Services, Labor, and the Treasury (the “Departments”) and the Office of Personnel Management intend to reopen the comment period for submitting comments on the proposed rule “Federal Independent Dispute Resolution (IDR) Operations.”

The announced plan to reopen the comment period on the Proposed Rule follows the Departments’ recent reopening of the dispute resolution portal and announcement of a $115 user fee for providers and health plans participating in the process beginning in February. See No Surprises Act Independent Dispute Resolution Portal Fully Reopened, New Fees Announced; No Surprises Act Dispute Resolution Portal For All Covered Health Claims

Concerned persons should begin preparing comments to submit while awaiting the Departments publication of official notice in the Federal Register of the reopening of the comment period.

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About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.

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Posted by Cynthia Marcotte Stamer

H-2B Application Filing Window For 4/1/24 Opens 1/2/24

December 22, 2023

Employers interested in hiring noncitizen workers using the H-2B Temporary Employment Program on April 1, 2024 should be prepared to file when the new filing window opens January 2, 2024 at 12:00 A.M. Eastern Time. The three-day window for submitting H-2B applications requesting work start dates of April 1, 2024, or later, begins on January 2, 2024, at 12:00 a.m. Eastern Time.

The Office of Foreign Labor Certification (“OFLC”) will open the H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2024, or later, on January 2, 2024, at 12:00 a.m. Eastern Time.

It’s important not to file early. OFLC will deny H-2B applications requesting an April 1, 2024, work start date if filed before January 2, 2024, at 12:00 a.m. Eastern Time.

OFLC will randomly order for processing all H-2B applications requesting a work start date of April 1, 2024, that are filed during the initial three calendar days (January 2-4, 2024) using the randomization procedures published in the Federal Register on March 4, 2019.

If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency. If multiple filings are submitted during the three-day filing window, all applications will receive a Notice of Deficiency requesting that the employer demonstrate that the job opportunities are not the same. Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application.

Employers are reminded that Foreign Labor Application Gateway (FLAG) System user accounts are solely for the use of the individual for whom they were created. Sharing the same user account is forbidden and is grounds for terminating FLAG access. Passwords or any other authentication mechanism should never be shared or stored in any place easily accessible. If stored, a password may not be stored in a clear-text or readable format.

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About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.™

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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Posted by Cynthia Marcotte Stamer

EEOC Sexual Harassment Suit Against Texas Car Dealership Warns Other Employers To Manage Risks

December 20, 2023

A sexual harassment and retaliation lawsuit filed December 20, 2023 by Equal Employment Opportunity Commission (“EEOC”) against Austin, Texas based South Austin Nissan warns auto dealerships and other employers to ensure their sexual harassment prevention, investigation and other practices can withstand EEOC scrutiny.

According to the EEOC’s lawsuit, three managers at South Austin Nissan engaged in egregious and persistent sexual harassment towards female employees. These managers regularly touched or attempted to touch female employees. They also made sexual comments about female employees, critiquing their physical appearance and referring to the employees’ personal relationships.

The complaint says managers encouraged female salespeople to “show more, sell more,” suggesting the women wear revealing clothing at work to succeed in sales opportunities. The sales managers created a culture in which discussing vulgar sexual encounters and watching sexual videos was fairly commonplace. Several female employees who suffered harassment were forced to leave their jobs because of the managers’ conduct.

The complaint also charges employees, including a male manager, reported the harassers’ behavior to both the director of human resources and chief operating officer. However, no appropriate investigation, effective corrective action, or remedial action was taken in response to the complaints. Instead, the reporting employees were transferred to other dealerships within the holding group. One reporting manager was transferred, received a reduction in pay, and was subsequently terminated for standing up against harassment.

If true, the alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace as an form of sex discrimination as well as outlaws retaliation against employees for reporting or cooperating in investigations of sexual harassment.

For purposes of Title VIi, sexual harassment includes unwelcome sexual advances, requests for sexual or other verbal or physical behavior of a sexual nature that implicitly or explicitly affects an individual’s employment, unreasonably interferes with the individual’s work performance, or creates a hostile or intimidating work environment.

In this complaint, the EEOC seeks back pay damages, compensatory and punitive damages, and injunctive remedies, including implementation of stronger oversight over investigations into sexual harassment and discrimination.

Sexual harassment and other discrimination is widely perceived by many as widely tolerated within the still mostly male dominated auto industry. These perceptions are fueled in part by Auto News Project XX study, which revealed women in the automotive industry experienced a highdegree of perceived sexism. Among other things, the Project XX Report reported:

84% of women had heard demeaning comments from a male colleague;
65% of women said they received an “unwanted advance” by a male coworker, more than any other industry surveyed;
63% of women claimed to be excluded from male-oriented company events;
Nearly 70% of women were told they were “too aggressive” and 50% were told they were “too quiet;”
More than 50% received comments on their appearance and were told to dress more feminine and display their breasts.

In the face of these concerns, EEOC and private litigant Title VII suits, settlements and judgements against auto dealerships and other auto industry employers has become increasingly common.

EEOC announcement of the suit highlights the importance of timely and appropriate employer prevention, investigation and response to sexual harassment, discrimination and retaliation. “It is unacceptable for a manager to suggest to women that their bodies are their best contribution in the workplace,” said Shannon Black, trial attorney in the EEOC’s Dallas District Office. “When an employer fails to remedy sexual harassment and retaliates against workers who report, it perpetuates the harms suffered by the employees who simply seek a healthy work environment.”

Dallas EEOC Regional Attorney Robert Canino said, “Whether male or female, a co-worker or supervisor who attempts to elevate concerns about sexual harassment should not have to fear reprisal. Corrective measures can maintain or restore employee morale and confidence. Surely, dealership owners and managers want to see their vehicles driven off the lot, not their employees.”

For More Information

About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.™

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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Posted by Cynthia Marcotte Stamer

No Surprises Act Independent Dispute Resolution Portal Fully Reopened, New Fees Announced

December 19, 2023

$115 is the fee that health plans participating in the Independent Dispute Resolution (“IDR”) process required by the No Surprises Act (the “NSA”) to resolve disputes with health care providers, facilities, and providers of air ambulance services (“providers”) over the amount the health plan will pay the provider for out-of-network health care or items for because the health plan and provider cannot reach agreement about the appropriate amount outside the IDR process will be required to pay disputes initiated on or after February 21, 2023 under a new final rule scheduled for publication by the of Health and Human Services (“HHS”), Labor (“DOL”) and Treasury (“Treasury”) (collectively the “Departments”) on December 21, 2023.

The Departments establishment of the IDR fee for post-February 20, 2025 disputes and their previous December 15, 2023 announcement of the full reopening of the IDR portal for all dispute categories are part of the Departments’ ongoing response to the August 3, 2023 Federal District court ruling in Texas Medical Association, et al. v. U.S. Department of Health & Human Services, et al., No. 6:23-cv-00059-JDK (TMA IV), which vacated portions of the previous guidance that the Departments previously adopted to establish the IDR process and the administrative fee amount for the Federal IDR process for disputes initiated during the calendar year beginning January 1, 2023.

Post February 22, 2024 IDR Fees

On December 18, 2023, the Departments released an advance copy of the final rule (the “Rule”) setting the fees the NSA requires both the health plan or issuer and a health care provider, facility, or air ambulance services provider (the “parties”) when the parties must use the NSA Federal Independent Dispute Resolution (IDR) process to set the amount a health plan must pay the provider for out-of-network medical care or items because the plan and provider cannot agree on an appropriate payment amount for disputes initiated on or after the date the Rule is published in the Federal Register. Since the Rule is scheduled for publication in the Federal Register on December 21, 2023, the new fee will apply to disputes initiated after February 20, 2023.

In response to the TMA IV ruling, the Rule amends existing regulations to provide that the Departments going forward will determine the administrative fee charged by the Departments to participate in the Federal IDR process, and the ranges for certified IDR entity fees for single and batched determinations, through annual notice and comment rulemaking, rather than in guidance published annually. The preamble to the final rule also sets forth the methodology used to calculate the administrative fee and the considerations used to develop the certified IDR entity fee ranges.

Following this new process, the Rule also finalizes an administrative fee amount of $115 per party and finalizes a certified IDR entity fee range of $200-$840 for single determinations and $268-$1,173 for batched determinations for disputes initiated on or after February 21, 2023.

Interested parties can review the Rule here and the Departments Fact Sheet on the Rule here.

IDR Portal Reopened December 15, 2023

The Rule establishing the IDR fee for disputes initiated after February 20, 2024 follows the Departments’ December 15, 2023 announcement of their reopening of the IDR portal for processing all health benefit disputes covered by the NSA between providers and payers.

As part of its provisions to protect patients from “surprise bills” or out-of-network services covered by the NSA, the NSA establishes rules and procedures for providers and payers to determine the appropriate out-of-network payment rate for out-of-network services received by patients enrolled in covered payer programs. Where payers and providers cannot agree about the appropriate payment rate using other NSA procedures, the IDR portal is the online system established under the NSA for disputing payers and health care providers arrange for a certified IDR entity to resolve disagreements about the appropriate out-of-network payment rate for items and services subject to the surprise billing protections in the NSA through a process in which the certified IDR entity reviews offers made by each disputing party along with supporting information about the dispute. Once established under the NSA, payers are required to pay providers the appropriate payment rate for the covered out-of-network services provided to the member patient and the provider is prohibited from balance billing charges in excess of the appropriate payment rate for those services. The Departments previously suspended the operation of the IDR portal earlier this year after a federal court ruled that rules adopted by the Departments implementing the NSA violated the NSA.

In connection with the reopening of the IDR Portal, the Departments also announced the following extensions of the applicable IDR deadlines for the initiation of new batched disputes and new single disputes involving air ambulance services, resubmission of disputes determined by certified IDR entities to be improperly batched, and selection or reselection of a certified IDR entity.

Parties for whom the IDR initiation deadline under applicable regulations fell on any date between August 3, 2023 and December 15, 2023 will have until the 20th business day after the Federal IDR portal reopens, which is January 16, 2024, to initiate a new batched dispute or a new single dispute involving air ambulance services. Parties for whom the IDR initiation deadline falls between December 16, 2023 and January 15, 2024 will also have until January 16, 2024 to initiate a batched or air ambulance dispute. Parties whose initiation deadline falls on January 16, 2024 or after will have the usual 4 business days after the end of the Open Negotiation Period, or if the dispute is subject to the 90-calendar-day suspension period following a payment determination, the usual 30 business day period, to initiate a batched or air ambulance dispute in the Federal IDR portal.
For batched disputes and single disputes involving air ambulance services initiated under extensions of deadlines after the Federal IDR portal reopens, the deadline for the parties to jointly select a certified IDR entity will be 10 business days after initiation.
For disputing parties that were engaged in certified IDR entity selection for batched disputes when the Federal IDR portal temporarily closed, the deadline for parties to jointly select a certified IDR entity will be 10 business days after the Federal IDR portal reopens, which is December 29, 2023.
An initiating party that has received a notification from a certified IDR entity that a dispute initiated before August 3, 2023 was improperly batched will have one opportunity to resubmit the improperly batched items and services for reconsideration within 10 business days of being notified by the certified IDR entity, provided that the initiating party’s 4-business-day period to resubmit the batched dispute expired between August 3 and August 9, 2023.
The deadline to submit fees and offers will remain 10 business days after certified IDR entity selection.
Disputing parties with batched disputes that were impacted by the temporary suspension of use of the notice of offer form will be granted an additional 10 business days to submit offers, as communicated to impacted disputing parties by email from the Federal IDR Inbox.

The deadline extensions announced December 15, 2023 supplement extensions the Departments previously announced in November, 2023. On November 22, 2023, the Departments used their statutory authority (Internal Revenue Code Section 9816(c)(9), ERISA Section 716(c)(9), and PHS Act Section 2799A-1(c)(9)) to grant extensions in the following circumstances:

Disputing parties may request additional time, beyond the current business day deadline, to respond to the certified IDR entity’s requests for additional information. The Departments instructed certified IDR entities to grant such requests through January 16, 2024.
Certified IDR entities may provide parties, upon request, an additional 10 business days after the original offer deadline to submit an offer. Certified IDR entities may provide parties this additional time, as needed, through January 16, 2024.

On November 29, 2023, the Departments also announced another extension of the timeline for disputing parties to select a certified IDR entity. Under this extension, disputing parties will have 10 business days to select a certified IDR entity for all disputes through January 16, 2024. This extension will be provided automatically and does not require a request by disputing parties.

The Departments already announced the November 22, 2023 and November 29, 2023 extensions until January 16, 2023 for new single and bundled disputes and these extensions will persist for all disputes until January 16, 2023.

In connection with their full reopening of the IDR portal, the Departments renewed prior reminders to parties accessing or using the IDR portal to clear their computer’s cache or open the Federal IDR initiation web forms in a private or incognito window to see all the new features at least once a week to ensure access to the most up-to-date version of the initiation form as the Departments continue to implement Federal IDR web forms to accommodate guidance-related and system enhancements. Users failing to follow this recommendation risk additional follow-up with certified IDR entities or system errors. 

Users also are encouraged to review other previously published guidance, including No Surprises Act (NSA) Independent Dispute Resolution (IDR) Batching and Air Ambulance Policy Frequently Asked Questions (FAQs), FAQs about Affordable Care Act and Consolidated Appropriations Act, 2023 Implementation Part 63 (FAQs Part 63), FAQs about Consolidated Appropriations Act, 2021 Implementation Part 62 (FAQs Part 62), and the August 2023 IDR Administrative Fees FAQs for further information.

Parties can also reference updated IDR system job aids and updated guidance documents for further information

For More Information

About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.™

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

Comments Off on No Surprises Act Independent Dispute Resolution Portal Fully Reopened, New Fees Announced | Corporate Compliance | Tagged: Balance Billing, Employee Benefits, Employer, ERISA, Health Care, Health Care Provider, Health Claims, Health Insurance, Health Plans, No Surprises Act, out-of-network-claims | Permalink
Posted by Cynthia Marcotte Stamer

No Surprises Act Dispute Resolution Portal For All Covered Health Claims

December 15, 2023

The No Surprises Act (“NSA”) Federal Independent Dispute Resolution (“IDR”) portal now is reopened for processing all health benefit disputes covered by the NSA between health care providers, facilities, and providers of air ambulance services (“providers”), and group health plans, health insurance issuers, and Federal Employee Health Benefits Program carriers (“payers”) (collectively, “disputing parties”). The December 15, 2023 announcement of the reopening of the IDR portal by the Departments of Health & Human Resources, Labor and Treasury (“Departments”) for all types of NSA-covered claims allows dispute resolution processes central to the administration of the NSA’s protections for health plan members against “surprise” balance bills for covered out-of-network services from health care providers including air ambulance.

As part of its provisions to protect patients from “surprise bills” or out-of-network services covered bu the NSA, the NSA establishes rules and procedures for providers and payers to determine the appropriate out-of-network payment rate for out-of-network services received by patients enrolled in covered payer programs. Where payers and providers cannot agree about the appropriate payment rate using other NSA procedures, the IDR portal is the online system established under the NSA for disputing payers and health care providers arrange for a certified IDR entity to resolve disagreements about the appropriate out-of-network payment rate for items and services subject to the surprise billing protections in the NSA through a process in which the certified IDR entity reviews offers made by each disputing party along with supporting information about the dispute. Once established under the NSA, payers are required to pay providers the appropriate payment rate for the covered out-of-network services provided to the member patient and the provider is prohibited from balance billing charges in excess of the appropriate payment rate for those services. The Departments previously suspended the operation of the IDR portal earlier this year after a federal court ruled that rules adopted by the Departments implementing the NSA violated the NSA.

Parties for whom the IDR initiation deadline under applicable regulations fell on any date between August 3, 2023 and December 15, 2023 will have until the 20th business day after the Federal IDR portal reopens, which is January 16, 2024, to initiate a new batched dispute or a new single dispute involving air ambulance services. Parties for whom the IDR initiation deadline falls between December 16, 2023 and January 15, 2024 will also have until January 16, 2024 to initiate a batched or air ambulance dispute. Parties whose initiation deadline falls on January 16, 2024 or after will have the usual 4 business days after the end of the Open Negotiation Period, or if the dispute is subject to the 90-calendar-day suspension period following a payment determination, the usual 30 business day period, to initiate a batched or air ambulance dispute in the Federal IDR portal.
For batched disputes and single disputes involving air ambulance services initiated under extensions of deadlines after the Federal IDR portal reopens, the deadline for the parties to jointly select a certified IDR entity will be 10 business days after initiation.
For disputing parties that were engaged in certified IDR entity selection for batched disputes when the Federal IDR portal temporarily closed, the deadline for parties to jointly select a certified IDR entity will be 10 business days after the Federal IDR portal reopens, which is December 29, 2023.
An initiating party that has received a notification from a certified IDR entity that a dispute initiated before August 3, 2023 was improperly batched will have one opportunity to resubmit the improperly batched items and services for reconsideration within 10 business days of being notified by the certified IDR entity, provided that the initiating party’s 4-business-day period to resubmit the batched dispute expired between August 3 and August 9, 2023.
The deadline to submit fees and offers will remain 10 business days after certified IDR entity selection.
Disputing parties with batched disputes that were impacted by the temporary suspension of use of the notice of offer form will be granted an additional 10 business days to submit offers, as communicated to impacted disputing parties by email from the Federal IDR Inbox.

Disputing parties may request additional time, beyond the current business day deadline, to respond to the certified IDR entity’s requests for additional information. The Departments instructed certified IDR entities to grant such requests through January 16, 2024.
Certified IDR entities may provide parties, upon request, an additional 10 business days after the original offer deadline to submit an offer. Certified IDR entities may provide parties this additional time, as needed, through January 16, 2024.

Parties should reference the No Surprises Act (NSA) Independent Dispute Resolution (IDR) Batching and Air Ambulance Policy Frequently Asked Questions (FAQs), FAQs about Affordable Care Act and Consolidated Appropriations Act, 2023 Implementation Part 63 (FAQs Part 63), FAQs about Consolidated Appropriations Act, 2021 Implementation Part 62 (FAQs Part 62), and the August 2023 IDR Administrative Fees FAQs for further information. Parties can also reference updated IDR system job aids and updated guidance documents for further information.

Questions can be directed to the Federal IDR mailbox at FederalIDRQuestion@cms.hhs.gov. Any additional updates will be provided at www.cms.gov/nosurprises as they become available.

For More Information

About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.™

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

Comments Off on No Surprises Act Dispute Resolution Portal For All Covered Health Claims | Corporate Compliance | Tagged: air-ambulance, arbitration, Balance Billing, business, doctors, emergency-care, Health Care Provider, health coverage, Health Insurance, Health Plans, Hospital, Insurance, law, out-of-network-claims, Patients, Solutionslawyer, third party administrator | Permalink
Posted by Cynthia Marcotte Stamer

Health Plans Warned To Prevent Phishing By 1st Phishing-Related HIPAA Settlement

December 8, 2023

Health plans and other entities covered by the Health Insurance Portability and Accountability Act (“HIPAA”) should tighten their phishing deterrence and other safeguards in response to the announcement of the Department of Health and Human Services Office of Civil Rights (“OCR”) of its settlement of its first official phishing-related HIPAA charges with a Louisiana medical group subject to HIPAA as a health care provider.

The resolution agreement with LaFourche Medical Group (“LaFourche”) announced December 7, 2023, resolves the first HIPAA charges OCR has classified officially as arising from a phishing attack warns health plans, health care providers, health care clearinghouses (“Covered Entities”) and their business associates (collectively, “HIPAA Entities”) to ensure the adequacy of their risk analysis, safeguards, training and other processes for guarding electronic protected health information (“ePHI”) against phishing or other impermissible access.

HIPAA Entities Duty To Guard EPHI Against Phishing

The HIPAA Privacy Rule and Security Rule require health care providers, heath plans, health care clearinghouses (“Covered Entities”) and their businesses associates (collectively “HIPAA Entities”) to protect EPHI and other protected health information against use, access, disclosure or destruction by third parties except under the conditions allowed by HIPAA. These requirements include the requirements of the Security Rule to conduct and document comprehensive security assessments of risks to sensitive data systems, to implement and enforce detailed security safeguards to protect EPHI and the systems containing that data against these threats, to train and enforce compliance with these safeguards, and other requirements. Meanwhile, the HIPAA Breach Notification Rule requires Covered Entities to report most breaches of unsecured EPHI to individuals whose data is affected, OCR, and in the case of breaches of EPHI affecting more than 500 individuals, to the media.

Phishing is a type of cybersecurity attack used to trick individuals into disclosing sensitive information via electronic communication, such as email, by impersonating a trustworthy source. See OCR Quarter 1 2022 Cybersecurity Newsletter; OCR February 2018 Phishing Cybersecurity Newsletter.

OCR guidance confirms OCR views defending ePHI against phishing as a key part of compliance with these HIPAA requirements. See, e.g. OCR Quarter 1 2022 Cybersecurity Newsletter; Defending Against Common Cyber-Attacks; AI-Augmented Phishing and the Threat to the Health Sector; HHS 405d Health Industry Cybersecurity Practices on Email Phishing Attacks; Videos on “How the HIPAA Security Rule Can Help Defend Against Cyber-Attacks” in English and Spanish. OCR February 2018 Phishing Cybersecurity Newsletter.

OCR data confirms the number of breaches of unsecured ePHI reported to the OCR affecting 500 or more individuals (“large breaches”) due to hacking or IT incidents increased 45% from 2019 to 2020, and hacking or IT incidents accounted for 66% of all large breaches reported to OCR in 2020. U.S. Department of Health and Human Services Breach Portal. In keeping with this trend, large breaches affected more than 55 million individuals in 2022 and more than 89 million individuals in 2023. OCR reports phishing played a key role in many of these breaches and contributed to many other breaches currently under OCR investigation. See U.S. Department of Health and Human Services Breach Portal; OCR Quarter 1 2022 Cybersecurity Newsletter. It bears noting that the most costly and largest HIPAA breaches overall and virtually all OCR resolution agreements with health plans have involved large scale breaches resulting from phishing or other hacking.

The widespread availability and use of artificial intelligence technology has only made phishing attempts more effective, especially since those tools are freely available to the public. AI-Augmented Phishing and the Threat to the Health Sector.

The 2021 HIMSS Healthcare Cybersecurity Survey reveals phishing is the most common attack impacting healthcare organizations, comprising almost half of all attacks. Data shows hackers frequently use phishing against the health sector because it often leads to data breaches that allow attackers to access large quantities of lucrative stolen health data. AI-Augmented Phishing and the Threat to the Health Sector.

LaFourche Breach & Findings

The OCR investigation of LaFourche arose from a May 28, 2021 data breach report LaFourche filed reporting a March 30, 2021 breach. According to the breach report, LAFOURCHE learned on March 30, 2021, that an unauthorized individual obtained access to one of its owners’ email accounts through a phishing attack. LAFOURCHE determined that the email account contained patients’ EPHI. According to the report, on March 30, 2021, LAFOURCHE learned that an unauthorized individual obtained access to one of its owners’ email accounts through a phishing attack. LAFOURCHE determined that the email account contained patients’ protected health information (PHI). As LAFOURCHE was unable to identify the specific patients affected, LAFOURCHE notified all of its patients – approximately 34,862 individuals of the incident. As LAFOURCHE was unable to identify the specific patients affected, LAFOURCHE notified all of its patients – approximately 34,862 individuals – of the incident.

OCR’s investigation opened in January, 2022 in response to the breach report revealed found that before LAFOURCHE made the breach report LAFOURCHE never conducted a Security Rule risk analysis and had no policies or procedures in place to regularly review information system activity to safeguard protected health information against cyberattacks.

To resolve OCR HIPAA charges arising from the breach, LaFourche agreed to pay $480,000 to OCR and to implement and follow a corrective action plan that includes the following requirements:

Establishing and implementing security measures to reduce security risks and vulnerabilities to electronic protect health information in order to keep patients’ protected health information secure;
Developing, maintaining, and revising written policies and procedures as necessary to comply with the HIPAA Rules; and
Providing training to all staff members with access to patients’ protected health information on HIPAA policies and procedures.

OCR will monitor for two years. LaFourche’s adherence with the compliance plan for two years.

While the $480,000 that LaFourche is a significant amount for a medical practice to pay, agreeing and adhering to the requirements of the settlement agreement and its incorporated corrective action plan allows LaFourche to avoids becoming subject to significantly greater civil monetary penalties authorized by HIPAA for breaches of its Privacy, Security and Breach Notification Rules. Under the terms of the resolution agreement, however, HHS can still pursue civil monetary penalties against LaFourche for the violations if OCR finds LaFourche failed to comply with any of the requirements of its corrective action plan or otherwise violates HIPAA.

LaFourche Resolution Agreement Warning To All HIPAA Entities To Tighten Phishing Defenses

The LaFourche resolution agreement serves as a warning to other HIPAA entities. OCR’s announcement of the settlement quotes OCR Director Melanie Fontes Rainer as stating, “It is imperative that the health care industry be vigilant in protecting its systems and sensitive medical records, which includes regular training of staff and consistently monitoring and managing system risk to prevent these attacks. We all have a role to play in keeping our health care system safe and taking preventive steps against phishing attacks.”

Based on the LaFourche resolution agreement and other guidance, HIPAA entities should heed this warning by ensuring their organization is prepared to demonstrate to OCR in the event of an OCR audit or breach investigation by among other things, establishing appropriate governance with C-level oversight of compliance efforts; conducting documented periodic systemic risk assessments addressing phishing and other threats; actions taken to implement appropriate safeguards and monitor their effectiveness; appropriate workforce training and enforcement of policies and procedures; timely investigation and response to known or suspected breaches; timely breach reporting and mitigation; and other compliance with the Security Rule.

With regard to phishing, the Office of Information Security Whitepaper on AI-Augmented Phishing and the Threat to the Health Sector provides specific tips for successful prevention of phishing attacks including but not limited to:

Ensuring proper email server configuration or integrating a spam gateway or other appropriate additional platform into the information infrastructure, such as a spam gateway filter, to help filter unwanted e-mails;
Multi-factor authentication (MFA) requirements to protect against stolen credentials, which can be the initial purpose of a phishing attack;
Up-to-date malware and other security software to detect malware as it is being executed onto the system;
Conducting periodic end-user awareness training on detection of phishing e-mails and interacting with all e-mail with healthy skepticism including specific training on comment formats and tricks including those generated using AI tools;
Systematically using appropriately updated and robust processes for monitoring and detecting suspicious activities/indicators on an ongoing basis.

HIPAA entities also should keep in mind that phishing is only one of a multitude of compliance and enforcement risks highlighted by OCR’s recent enforcement and guidance. Along with reviewing and updating their phishing defenses, HIPAA entities also should review and update other processes as needed to manage these exposures.

Additionally, HIPAA entities and their leaders also should take steps to understand and fully address all other statutory, ethical, contractual or other privacy or confidentiality requirements beyond those imposed by HIPAA. For example, health care providers, health plans and their fiduciaries, brokers, administrators and insurers also may bear responsibilities under the Employee Retirement Income Security Act fiduciary responsibility rules, the Fair and Accurate Credit Transactions Act, federal and state electronic crimes and privacy laws. Publicly traded organizations and their leaders may face responsibilities and liability under new Securities and Exchange Commission regulations. The Employee Benefit Security Administration considers managing cybersecurity risks a part of the fiduciary obligations of fiduciaries of employment-based health plans. Meanwhile, health care providers, insurance organizations and brokers, third party administrators, government contractors, attorneys and other advisors and others also may be subject to medical confidentiality and other data privacy and security obligations under federal and state electronic crimes, identity theft, ethics, professional licensure, contractual, common law privacy and other statutory and common laws.

While it commonly is necessary or advisable to involve consulting or other technical support in the conduct of these activities, HIPAA entities should keep in mind the likelihood that their analysis and review is likely to uncover and prompt discussion of potentially legally or politically sensitive information. For this reason, HIPAA entities and their leaders generally will want to engage experienced legal counsel for assistance in structuring and executing these activities to maximize their ability to claim attorney-client privilege or other evidentiary protections against discovery or disclosure of certain aspects of these activities.

Finally, HIPAA entities should keep in mind that HIPAA and other cybersecurity compliance and risk management is an ongoing process requiring constant awareness and diligence. Consequently, HIPAA entities should both monitor OCR and other regulatory and enforcement developments as well as exercise ongoing vigilance to monitor and maintain compliance within their organizations.

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About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

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.

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Posted by Cynthia Marcotte Stamer

Employer’s Overzealous I-9 Documentation Demand Triggers Civil Monetary Penalty

December 7, 2023

A Florida steakhouse must pay civil monetary penalty for violating the Immigration and Nationality Act (“INA”) by requiring extra proof of eligibility of an employee to work in the United States.

A settlement agreement between OSI/Fleming’s LLC, which owns and operates the Fleming’s Prime Steakhouse & Wine Bar (“Fleming’s”) restaurant in Sandestin, Florida and the Justice Department announced December 7, 2023 resolves the department’s determination that Fleming’s violated the Immigration and Nationality Act (INA) by discriminating against a lawful permanent resident when checking whether he had ongoing permission to work.

U.S. law requires all employers to verify the eligibility of each employee to work by completing the required Form I -9, Employment Eligibility Verification (“I-9”). Completion of this duty requires the employer to confirm the worker’s identity and permission to work in the U.S. by requiring the worker to present an appropriate combination of legally acceptable documentation from the options listed on the I-9.

The I-9 rules allow workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status or national origin. Employers cannot demand more documents than are necessary or specify documentation they prefer to see as part of this process.

After opening an investigation based on a worker’s complaint, the Department concluded that Fleming’s discriminated against a lawful permanent resident by rejecting the valid documents the worker originally provided and unnecessarily requiring him to present a document with an expiration date to prove his citizenship status. When yhe employee failed to do so, Fleming’s fired him.

After the department started its investigation, Fleming’s rehired the worker and paid him lost wages. Under the agreement, Fleming’s will pay a civil penalty of $7122.00 to the United States, train its human resources staff on the INA’s requirements and provide an alternative way of accepting a worker’s documentation if the company’s software will not accept a worker’s valid documentation.

The enforcement action cautions other employers to use care to closely follow the I-9 documentation requirements.

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About the Author

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and VIce-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law 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, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

For more information about Ms. Stamer or her labor and employment, employee benefit, 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 for 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 may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

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

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Posted by Cynthia Marcotte Stamer

Brett Brenner Appointed EEOC Deputy Chief Operating Officer

December 6, 2023

Brett Brenner has been appointed to the U.S. Equal Employment Opportunity Commission’s Deputy Chief Operating Officer position, effective December 3, 2023, The EEOC announced the appointment December 6., 2023.

A Senior Executive Service (SES) managerial position at the agency, Brenner has a long REOC employment history. Before his appointment Brenner was serving as the acting deputy chief operating officer for the EEOC and responsible for oversight of financial management, security issues, and internal equal employment opportunity and civil rights matters. Previously, Brenner was the associate director of the EEOC’s Office of Communications and Legislative Affairs for 13 years, an attorney in the EEOC’s Office of Legal Counsel, and an attorney-advisor in the agency’s Office of Field Programs. Brenner began his career with the EEOC in 1997 as a law clerk.

Before coming to the EEOC, Brenner also worked on the U.S. Senate Committee on Labor and Human Resources for Senators Nancy Kassebaum Baker of Kansas and Jim Jeffords of Vermont.

Brenner is a graduate of the University of Kansas, where he earned bachelor’s degrees in political science and journalism, as well as a juris doctor.

The SES is a federal government personnel program in which civil service employees serve at a level just below the top presidential appointee.

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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 may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

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Texas Private Employer COVID-19 Vaccination Mandates Prohibited Effective February 6, 2024

December 1, 2023

After February 5, 2024, a new Texas law will prohibit Texas private employers from requiring employees get Covid – 19 vaccinations.

Senate Bill 7 bans private employers from requiring COVID-19 vaccines in the workplace. The new law will take effect on February 6, 2024. The law contains no exceptions for healthcare providers such as hospitals. Instead, the law allows healthcare and other employers previously to require unvaccinated staff to wear masks and other protective equipment.

Chapter 81B of the Texas Health and Safety Code already prohibits state and local governments from adopting workplace vaccine mandates. Provisions of the new law prohibiting private employer COVID-19 vaccination mandates will be incorporated in the newly created Chapter 81D. Accordingly, Texas law will prohibit all public and private employers from imposing workforce Covid – 19 vaccinations after February 5, 2024.

During the Covid – 19 pandemic, federal law, mandated workplace vaccination mandates for hospitals, government contractors, and various other organizations. During the course of the pandemic, these mandates were substantially eviscerated by a series of court decisions, and other regulatory modifications before ultimately being suspended or withdrawn by the close of the pandemic. Although the limitation and suspension of these federal mandates as an explicit requirement eliminated noncompliance with the mandates as a basis for per se prosecution under these requirements, it did not fully eliminate potential employer exposure for failing to require vaccination under federal law., Advocates for vaccination have argued that requiring vaccination during a period of contagion for Covid – 19 or other contagious diseases may be required to comply with the general duty clause under the Occupational Health & Safety Act. Since the abatement of Covid – 19 pandemic, this risk has been lessof a concern to most employers.

With Covid – 19 infection rates rising in recent months, however, employers generally will want to evaluate and document their policies and efforts to protect their workers from Covid – 19 and other highly contagious diseases in their workplaces taking account mandates, safety standards, and specific statute like the new Texas vaccination ban well to mitigate potential federal, occupational health and safety act, liability, exposures and costs and operational disruptions that typically follow an outbreak in their workplaces.

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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 may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

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Health Plans Warned To Prevent Phishing By 1st Phishing-Related HIPAA Settlement

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Employer’s Overzealous I-9 Documentation Demand Triggers Civil Monetary Penalty

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Brett Brenner Appointed EEOC Deputy Chief Operating Officer

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Texas Private Employer COVID-19 Vaccination Mandates Prohibited Effective February 6, 2024

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