Employee Benefits |

New Labor Department Video Tries To Educate Young Workers About Benefits & Benefit Rights

October 1, 2011

The Employee Benefits Security Administration has produced two new videos aimed at younger workers with information critical to their physical and long-term financial health. EBSA’s videos provide quick and relevant detail, and offer links to other invaluable online tools to help workers take full advantage of their employer-sponsored benefits. Watch the Videos in English and SpanishThe author of this update, attorney Cynthia Marcotte Stamer frequently conducts training and publishes on these and other matters. She regularly speaks and conducts briefings on employee benefit, human resources, internal controls and risk management matters. You can find out about upcoming training or other events, learn more about Ms. Stamer and get updates at www.CynthiaStamer.com.

For Help With These Or Other Matters

If you would like help reviewing or defending your organization’s health or other employee benefit or insurance programs, need legal representation on health plan or other employee benefits, employment or insurance concerns, or wish to discuss arranging for Ms. Stamer to conduct training or speak for your organization, please contact Ms Stamer here.

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

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with health benefit and insurance matters, Ms. Stamer continuously advises and assists employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources programs and practices. She works extensively with plan sponsors, insurers, administrators, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

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

About Solutions Law Press

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

Comments Off on New Labor Department Video Tries To Educate Young Workers About Benefits & Benefit Rights | Employee Benefits, Employers, Retirement Plans, Tax | Tagged: Determination Letters, Employee Benefits, plan qualification, Retirement Plans, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Employer Assistance and Resource Network Offers Free Webinars For Employers During October In Honor of Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities

September 29, 2011

The Employer Assistance and Resource Network (EARN) will be hosting four weekly webinars in celebration of National Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities in the Workplace; the Employment of Persons with Disabilities; the Work Opportunity Tax Credit; and the Workforce Recruitment Program. To learn more, see Free Webinar Series for Employers Beginning October 6.

For Help With These Or Other Matters

If you would like help reviewing or defending your organization’s labor and employment, health or other employee benefit or insurance programs, need legal representation on health plan or other employment, employee benefits, or other management controls or risk management matters or wish to discuss arranging for Ms. Stamer to conduct training or speak for your organization, please contact Ms Stamer here.

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

A board certified labor and employment attorney widely known for her extensive practical knowledge and experienced with human resources and other workforce staffing and management matters, Ms. Stamer has extensive experience helping employer and other management organizations manage and resolve risks arising under employment discrimination and other employment laws. She also works with employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources programs and practices. She works extensively with employers, plan sponsors, insurers, administrators, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other human resources, employee benefit, and internal controls matters who is active in many human resources, employee benefits, and other management focused organizations.

About Solutions Law Press

Comments Off on Employer Assistance and Resource Network Offers Free Webinars For Employers During October In Honor of Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities | ADA, Disability, Disability, Employee Benefits, Employers, ERISA, GINA, Military Leave, Retirement Plans, Tax, VEVRRA | Tagged: ADA, disability law, employment law, reasonable accommodation | Permalink
Posted by Cynthia Marcotte Stamer

New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks

September 26, 2011

Program Another Sign of Growing Audit & Enforcement Risks. Businesses Urged To Strengthen Their Worker Classification Defenses

The September 22, 2011 launch by the Internal Revenue Service of a new Voluntary Worker Classification Settlement Program (“Settlement Program”) is the latest warning to businesses using independent contractors, leased employees or other non-employee workers of the need to review critically within the scope of attorney-client privilege the defensibility of their existing classification and treatment of those workers as non-employees in light of the in light of stepped up scrutiny and enforcement emphasis by the IRS and other federal and state regulators as well as workers and others in private litigation.

Coupled with growing scrutiny and challenges to businesses efforts to avoid employment-related liability and obligations through the use or workers that the business characterizes as non-employees by other federal and state agencies and plaintiff attorneys, the Settlement Agreement announcement is another sign that businesses using workers who are not employees need to be prepared to defend their worker classification and the legality of their dealings with these workers under applicable federal and state laws.

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

Settlement Program Establishment Should Prompt Review Defensibility of Worker Classifications

The new Settlement Program established under Announcement 2011-64 reflects the widespread emphasis by the IRS and other federal and state regulators on uncovering and redressing misclassification of workers as non-employees by businesses for purposes of tax and other laws. IRS scrutiny of worker classification practices by businesses has risen significantly over the past decade.

The IRS’ launch of the Settlement Program follows its announcement in September, 2010 of plans to conduct approximately 6,000 payroll tax audits over a three year period focusing on the appropriateness of employer worker classification and other payroll tax practices. The announcement of the new Settlement Program signals that the IRS perceives that worker misclassification by business in violation of Federal tax laws is sufficiently widespread and pervasive to merit both efforts to incentive voluntary correction through participation in the Settlement Program, as well as stiff enforcement against businesses that fail to self-correct worker classification compliance concerns.

Designed to increase tax compliance and provide what the IRS says will be “greater certainty for employers, workers and the government,” the IRS says the Settlement Program offers eligible employers concerned about potential worker misclassification exposures that might arise from a payroll tax audit the opportunity to come into compliance by making the required filing, adjusting their practices and paying the required settlement fee effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. If this settlement fee is paid and the other requirements of the Settlement Program are met, the Settlement Program specifies that employers accepted into the program will not be assessed interest or penalties and not be audited on payroll taxes related to these workers for prior years.

For businesses that can meet applicable requirements for participation, participation in the Settlement Program may offer an attractive option for resolving payroll related tax risks. However, not all employers will qualify for the Settlement Program. Employers must meet the eligibility requirements for participation.

Also, employers electing to use the Settlement Program need to understand the implications of that participation on the Statute of Limitations on their payroll tax liabilities. For the first three years of participation in the program, the Settlement Program specifies that participating employers will be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes. Businesses will need to weigh the benefits of using the Settlement Program, if available, against the risk of reclassification and the availability of other resolution options that may be available under applicable Internal Revenue Code and IRS rules and procedures. Furthermore, many businesses evaluating worker classifications also may find it difficult to determine with certainty the risk of reclassification for certain categories of workers. Whether a worker is properly classified as an employee for most purposes under the Internal Revenue Code’s income tax withholding and reporting, payroll tax and most other employment tax turns on a highly fact specific analysis of under a common law employment test. When an analysis of the evidence reflects a high degree of certainty that the classification of a worker as a non-employee was not defensible under existing tax authorities, use of the Settlement Program or other tools to resolve liability definitely merits consideration. Because of the factual nature of the analysis, however, the decision whether to use the Settlement Program where the circumstances under which the worker renders services are less clear may be more difficult. When making these assessments, businesses should avoid the temptation of being overly optimistic in their assessment of the facts and circumstances given that the Internal Revenue Code generally assigns responsibility to the business to prove the appropriateness of its classification of a worker as a non-employee. While this allocation of the burden of proof means businesses should exercise caution when engaging workers in non-employee capacities, where the facts support this characterization, classification of a worker as a non-employee can be appropriate. When deciding to continue the non-employee characterization for purposes of the Internal Revenue Code, however, businesses are urged to document the evidentiary basis and evidence supporting that determination in anticipation of a potential future audit or other challenge.

Learn more about the Settlement Program and worker classification risk management here.

Businesses Should Address Other Worker Reclassification Risks When Conducting Settlement Program Risk Analysis

As welcome as the opportunity to resolve potential payroll tax exposures through participation in the Settlement Program, businesses considering using the Settlement Program also will need to understand and prepared to address various non-tax legal concerns. Because worker misclassification tends to impact on a broad range of legal obligations and risks, businesses evaluating or planning to use the Settlement Program are act quickly, but carefully, to evaluate and determine whether and how to use the Settlement Program and to identify and take appropriate steps to address both the tax-related liabilities targeted for resolution under the Settlement Program, as well as misclassification exposures likely to arise with respect to workers to be reclassified in connection with the use of the Settlement Program.

When conducting this evaluation and deciding whether to use the Settlement Program, businesses also need to keep the wider implications of the analysis and their decisions regarding how to handle a potential aggressive or misclassification as a worker as a non-employee. A determination of potential aggressive or misclassification for purposes of the Internal Revenue Code’s payroll tax rules generally will necessitate the need to evaluate potential exposures that may arise from the worker misclassification under other federal and state laws.

Typically, in addition to treating a worker as a non-employee for tax purposes, a business also will treat the worker as a non-employee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, worker’s compensation, workplace safety, tort liability and insurance and other purposes. Consequently, a determination that reclassification is advisable for tax purposes generally will prompt the need to consider how to address the worker reclassification and attendant risk for purposes of other legal risks and requirements, as well as those covered by the Settlement Program. Businesses will need to consider how the voluntary reclassification of workers and settlement under the Settlement Program may impact their exposures and obligations under other laws. As the Settlement Program does not provide relief from the exposures arising from misclassification under other laws, businesses should be prepared to evaluate the advisability of reclassification of the worker for purposes of these other laws, the potential exposures attendant to misclassification of workers under those laws, and risks, challenges and opportunities for mitigating these exposures.

Businesses Cautioned To Conduct Evaluations & Discussions In Attorney-Client Privilege Due To Complexity & Significance of Potential Exposures

Conducting and discussing the Settlement Program and other related concerns within the scope of attorney-client privilege is particularly important because of the potentially significant civil and even criminal liability exposures that may arise from misclassification of workers for purposes of the various relevant laws. Because of the broad reaching and potentially significant non-tax exposure inherent in these discussions, business leaders are cautioned that the evidentiary privileges that often provides protection against disclosure of certain discussions with accountants and certain other non-attorney tax advisors for purposes of certain tax laws may be inadequate in scope to protect discussions against discovery for purposes of these other laws. Accordingly, while businesses definitely should incorporate appropriate tax advisors into the evaluation process, most businesses before commencing meaningful discussions with or engaging assessments by their accounting firm or other non-attorney tax advisor will want to engage counsel and coordinate the involvement of their accounting and other non-attorney tax advisors through qualified legal counsel to protect and maximize the ability to conduct the analysis of their risks and options within the protection of attorney-client privilege.

For Help With These Or Other Matters

If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Ms. Stamer has more than 24 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigrations & Customs, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, internal controls and risk management matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.

A featured presenter in the recent “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” teleconference sponsored by the American Bar Association Joint Committee on Employee Benefits, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.

About Solutions Law Press

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

Comments Off on New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks | 105(h), Cafeteria Plans, COBRA, Corporate Compliance, Disability, Disability, Disability Plans, Discrimination, Employee Benefits, Employers, Employment Tax, ERISA, Fair Labor Standards Act, family leave, FMLA, Government Contractors, Health Plans, HIPAA, Human Resources, I-9, Immigration, Income Tax, Insurance, Internal Controls, Internal Investigations, Labor Management Relations, Leave, medical leave, Military Leave, Nonresident aliens, OSHA, Payroll Tax, Restructuring, Retirement Plans, Tax, Tax Qualification, Unemployment Benefits, Unemployment Insurance, Union, VEVRRA, Wage & Hour | Tagged: contract labor, Determination Letters, Employee, Employee Benefits, Independent Contractor, leased employee, misclassificaton, payroll tax, plan qualification, Retirement Plans, staffing, Tax, Worker Classification | Permalink
Posted by Cynthia Marcotte Stamer

HHS Projects Medicare Advantage Enrollment Will Rise As Premiums Decline In 2012; Plans Face Increased Regulation & Enforcement

September 25, 2011

Medicare Advantage enrollment will rise and premiums will decline in 2012. While plans can expect increased enrollment, they also face increasing challenges in managing the demands of increased government regulation under Health Care Reform and other new regulations, as well as rising governmental scrutiny of premiums and compliance. Consequently, while more individuals than ever are expected to sign up for Medicare Advantage Plan coverage, the plans still face significant compliance and operational challenges.

According to the Department of Health & Human Services (HHS) , Medicare Advantage premiums on average will be 4% lower in 2012 than in 2011. Meanwhile HHS reports that Medicare Advantage plans project enrollment to increase by 10%. This follows an earlier HHS announcement that average prescription drug plan premiums will remain virtually unchanged in 2012.

Of people with Medicare, HHS reports 99.7% continue to enjoy access to a Medicare Advantage plan, and benefits will remain consistent with those offered in 2011. To offset declining premiums and other costs, however, many industry experts expect that plans will make greater use of technology in place of human staffing, cut back on broker compensation and utilization and implement other operational changes to help control operations costs.

While many Medicare Adtange and Medicaid Advantage Plans will benefit from increased enrollment, producing promised benefits and avoiding regulatory sanctions amid tightening budgets remains a challenge for many of these plans. Medicare and Medicaid Advantage plans are tightly regulated by federal and state law. Over the past few years, the compliance, premiums, profits and other activities of these and other health plans have been heavily scruitinzed by Congress and federal and state regulators. As part of the stepped up health care fraud and other cost containment efforts, federal regulators have stepped up audit and enforcement against these programs. Several plans have suffered administrative sanctions or other discipline under these laws. Most commentatorys anticipate this scrutiny to expand in 2012.

Learn more here.

For Assistance or Additional Information

Nationally and internationally known for her knowledge and work on health and other employee benefit matters and engaging and informative presentations, attorney, author and policy advocate Cynthia Marcotte Stamer will help you prepare your plan and organization to cope with these and other challenges of understanding and coping with health care reform.

Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, incoming ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, Board Certified in Labor and Employment Law and a widely published speaker and author, Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers and governments on health care, retirement, employment, insurance, :and tax program design, administration, defense and policy and related employment, insurance and health care matters. Her experience includes extensive experience advising insured and self-insured ERISA group medical and other plans, Medicare and Medicaid Advantage plans, mini-med, high-deductible and other consumer driven medical, long-term care, occupational injury, ex-pat, association, fraternal benefit and other managed care and medical benefit plans and insurers, their service providers, insurers, sponsors, fiduciaries, technology providers and others. A primary drafter of the Bolivian pension law, Ms. Stamer also has more than 30 years experience working on legislative and regulatory health care, pension, workforce, education and immigration reform matters including extensive work on the Pension Protection & Affordable Care Act, HIPAA, COBRA, state managed care and other insurance and other laws. In addition to her experience advising governments and others internationally about these matters, she regularly advises and represents employers, employee benefit plans, insurers, health care and managed care providers and others about evolving laws and regulations and assists them in dealing with Congress, the Internal Revenue Service, the Department of Labor, Immigration and Customs, OCR, OIG, CMS and other HHS agenices, the FTC, the Justice Department, state insruance and health departments, and others.

A widely published author and popular speaker, Ms. also regularly publishes and speaks for a broad range of organizations including American Bar Association, Aspen Publishers, World At Work, Benefits Magazine, Employee Benefit News, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others. She currently or previously has served on the editorial advisory board of Employee Benefits News, BNA Employee Benefits CDRolm and a wide range of other highly regarded publications. Her insights on these and other matters have appeared in Managed Care Executive, Health Leaders, Private Payers News, the Wall Street Journal, various publications of the Bureau of National Affairs, Aspen, Atlantic Information Serices, the Wall Street Journal, and many other industry and news publications. In recognition of this extensive record of employee benefit experience and involvement, Ms. Stamer recently was selected to be inducted as a Fellow in the American College of Employee Benefits Counsel.

About Solutions Law Press

Comments Off on HHS Projects Medicare Advantage Enrollment Will Rise As Premiums Decline In 2012; Plans Face Increased Regulation & Enforcement | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

IRS Adds Participant Notification To Required Procedures For Church Plan Determination Letter Requests

September 23, 2011

Participant Notification Added To Required Procedures For Church Plan Determination Letter Requests

Revenue Procedure 2011-44 modifies the procedures previously announced by the IRS in January to include a requirement that parties requesting a determination letter for a church plan notify plan participants and other interested parties of the letter request by providing a written notice containing the information set forth in a Model Notice published by the IRS as an attachment to the Revenue Procedure.

Procedures for requesting determination letters and other employee benefit plan related rulings generally are governed by Revenue Procedure 2011-04.

Revenue Procedure 2011-44 is scheduled for official publication in Internal Revenue Bulletin 2011-39 on September. 26, 2011

The author of this update, attorney Cynthia Marcotte Stamer frequently conducts training and publishes on these and other matters. She regularly speaks and conducts briefings on employee benefit, human resources, internal controls and risk management matters. You can find out about upcoming training or other events, learn more about Ms. Stamer and get updates at www.CynthiaStamer.com.

For Help With These Or Other Matters

About Solutions Law Press

Comments Off on IRS Adds Participant Notification To Required Procedures For Church Plan Determination Letter Requests | Employee Benefits, Employers, Retirement Plans, Tax | Tagged: Determination Letters, Employee Benefits, plan qualification, Retirement Plans, Tax | Permalink
Posted by Cynthia Marcotte Stamer

4th Circuit Rejects Two Challenges To Affordable Care Act Constitutionality

September 8, 2011

The Fourth Circuit this morning (September 8, 2011) published decisions ruled rejecting two lawsuits challenging the constitutionality of the Patient Protection and Affordable Care Act on jurisdictional grounds in Liberty University v. Geithner and Commonwealth of Virgina v. Sebelius.

Cynthia Marcotte Stamer will discuss this new development and other health care reform issues when she speaks to the Houston Chapter of WEB at 11:30 a.m on September 14, 2011 on “Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do.” The program will cover newly proposed rules that will require health plans and health plan issuers to provide a new summary of benefits and coverage beginning in 2012 and other emerging rules imposed under recently engaged health care reform laws. The program is approved for 1 hour of general continuing education credit by the Texas Department of Insurance. Get details and register online at www.webnetwork.org/houston.

As the debate over the validity and future of the sweeping health care reforms enacted under the Patient Protection and Affordable Care Act (ACA) rages in Congress and the federal courts, employer and other health plan sponsors, insurers, fiduciaries and administrators face the daunting challenge of keeping their health plans compliant, affordable and relevant in the face of the steady rollout of the deluge of new mandates imposed by the Affordable Care Act and other evolving health plan mandates and planning for changes yet to come.

A former national WEB member nationally and internationally known for her knowledge and work on health and other employee benefit matters and engaging and informative presentations, attorney, author and policy advocate Cynthia Marcotte Stamer will help you prepare your plan and organization to cope with these and other challenges of understanding and coping with health care reform.

Ms. Stamer’s presentation will focus on key health care reform information that can help employers and other plan sponsors, insurers, fiduciaries, insurers, administrators and advisors understand and cope with the effects and responsibilities of health care reform including:

Recently proposed and finalized regulations;
Updating you on the status of litigation challenging the ACA health care reforms in the courts;
Updating you on the key developments affecting health care regulatory reforms likely to impact your health plan;
Sharing an updated roadmap of the currently scheduled implementation of key future health benefit reforms enacted under ACA;
Sharing selected tips and strategies for managing compliance and other risks and deal with uncertainties arising as health care reform continues to evolve; and
Audience questions and discussion of questions and ideas.

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

Comments Off on 4th Circuit Rejects Two Challenges To Affordable Care Act Constitutionality | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do

September 3, 2011

Cynthia Marcotte Stamer will speak to the Houston Chapter of WEB at 11:30 a.m on September 14, 2011 on “Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do.” The program will cover newly proposed rules that will require health plans and health plan issuers to provide a new summary of benefits and coverage beginning in 2012 and other emerging rules imposed under recently engaged health care reform laws. The program is approved for 1 hour of general continuing education credit by the Texas Department of Insurance. Get details and register online at www.webnetwork.org/houston.

Recently proposed and finalized regulations;
Updating you on the status of litigation challenging the ACA health care reforms in the courts;
Updating you on the key developments affecting health care regulatory reforms likely to impact your health plan;
Sharing an updated roadmap of the currently scheduled implementation of key future health benefit reforms enacted under ACA;
Sharing selected tips and strategies for managing compliance and other risks and deal with uncertainties arising as health care reform continues to evolve; and
Audience questions and discussion of questions and ideas.

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

Comments Off on Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Employer, Health Care Reform, Health Insurance, health issuer, Health Plans, health policy, instruction, Insurance, Insurer, speech, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

ABA TIPS Section Appoints Cynthia Marcotte Stamer Vice Chair of Employee Benefits General Committee

August 16, 2011

The American Bar Association Tort Trial & Insurance Practice Section recently appointed Solutions Law Press Managing Editor Cynthia Marcotte Stamer to serve as Vice-Chair Appointment of the Employee Benefits General Committee for the 2011-2012 fiscal year.

The TIPS Employee Benefits Committee concentrates on helping attorneys and others keep on top of and respond to developments in the constantly evolving practice area of employee benefits, with particular emphasis on litigation and regulatory compliance issues through programs, meetings, publications and other projects and activities. Additional information about involvement in the Employee Benefits Committee and its programs, publications and activities is available here.

A noted Texas-based employee benefits and employment lawyer with extensive involvement in the leadership of the ABA and other professional organizations involved in employee benefits, health care and workforce matters, is nationally and internationally known for her pioneering leadership and work as an attorney, consultant, policy advocate, speaker and author helping businesses, governments, and communities on health and other insurance and employee benefits, patient education and empowerment, wellness and disease management, and other programs, policies, and processes. For more than 24 years, Ms. Stamer’s legal practice has focused on advising and representing employers, insurers, health care providers, community leaders and governments about health care and employee benefits policy and process improvement, quality, performance management, education, compliance, communications, risk management, reimbursement and finance, and other related matters. In addition to her legal practice, Stamer also extensively consults and provides leadership to a broad range of clients, professional and civic organizations, and others on strategies for improving the health care system and the ability of health care providers, payers, employers, community organizations, government agencies to help patients and their families to access cost-effective, quality, affordable health care and other resource needs. She also has worked extensively with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters.

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

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

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Borzi Tells House Committee Current Fiduciary Regs Flawed; Must Fix Loopholes In Investment Advisor Definition To Protect Plans
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Conviction Highlights Risks Of Misleading Investors
DOL Considers Easing Rules For Electronic Benefit Communications
Improving The Effectiveness Of Compliance & Risk Management By Getting Hr On The Compliance Team
IRS Establishes Safe Harbor Election For Allocating Success-Based Fees Paid On Certain Business Transactions
IRS Changing Substantiation Rules For Business Travel Expenses
9/22/11 Cutoff To Apply For Affordable Care Act Annual Limit Temporary Waiver
Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures
IRS Releases Health Savings Account, High Deductible Health Plan 2012 Indexed Amounts
IRS Guidance On Affordable Care Act Requirement That Employers Report Cost Of Health Coverage On W-2 Released
Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans Or Mismanage Employee Benefit Plan Responsibilities
Health Plans, Insurers Get Limited & Imperfect Relief From Grace Period Extension For Some New Affordable Care Act Health Claims & Appeals Rules
EEOC Finalizes Updates To Disability Regulations In Response To ADA Amendments Act: Employers Should Manage Risks
Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Back Pay Settlement
Avoiding Liability For Another’s Health Plan Fraud
Health Plans & Employers Beware! $4.3 Million Civil Penalty Shows OCR Serious About HIPAA Enforcement
IRS Expands When HFSAS & HRAs May Allow Over-The-Counter Drug Purchases With Drug Cards
DOL Announces Changes To H-2b Prevailing Wage Calculation Rules
$1 Million + FLSA Overtime Settlement Shows Employers Should Tighten On-Call, Other Wage & Hour Practices
Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify
Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final Gina Regulations
EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination
DOL Proposes To Expand Investment Related Services Giving Rise To ERISA Fiduciary Status As Investment Fiduciary

For additional information about Ms. Stamer, upcoming training, publications or other materials or events, see here or contact Ms. Stamer directly via email here or (469) 767-8872.

IIf you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

Comments Off on ABA TIPS Section Appoints Cynthia Marcotte Stamer Vice Chair of Employee Benefits General Committee | Cafeteria Plans, COBRA, Corporate Compliance, Defined Benefit Plans, Defined Contribution Plans, Disability Plans, Employee Benefits, Employers, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Preemption, Prescription Drugs, Retirement Plans, Wellness, Wellness Programs | Permalink
Posted by Cynthia Marcotte Stamer

New Affordable Care Act Guidance Helps Some Health Plans Stay Grandfathered

August 2, 2011

Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures Beginning In 2012

Contraception Mandate Might Not Apply To Certain Religious Employer Plans

Starting with plan years beginning after July 31, 2011, most employer and union sponsored group health plans and group and individual health insurers generally must cover contraceptive and certain other preventive services for women (“Women’s Preventive Services”) at no cost to comply with federal rules that these programs cover preventive care for members with no cost sharing enacted as part of the Patient Protection and Affordable Care Act (“ACA”).

On Monday, August 1, 2011, the Department of Health & Human Services (“HHS”) on Monday, August 1, 2011 announced guidelines (Women’s Preventive Services Guidelines”) that add contraception and a list of women’s health procedures to the preventive care procedures that ACA requires covered health plans and health insurance policies covered by the Affordable Care Act to cover without cost to members. ACA’s general preventive coverage rules generally have required covered health plans and policies to cover without cost a broad list of other preventive care procedures since the first plan year beginning after September 22, 2009.

Interim Final Regulations implementing ACA’s new preventive care mandate published July 14, 2010 interpreted this ACA preventive care mandate broadly to dictate that ACA covered health plans and health insurers cover as preventive services at no member cost hundreds of procedures.

Concerning the Women’s Preventive Services, however, the Interim Final Regulations delayed implementation of requirements to cover Women’s Preventive Services until August 1, 2011 to give time to HRSA time to issue its recommendations about what procedures should qualify as Women’s Preventive Services. When HRSA failed to finalize its input by August 1, 2011, HHS finalized its list of required Women’s Preventive Services now rather than to continue waiting for HRSA’s final input.

Finalization of the list of required Women’s Preventive Services now means covered health plans and policies must add coverage for these listed procedures with no co-pay beginning with all post-July 31, 2012 plan years.

While the published list of required Women’s Preventive Services generally mandates that ACA-covered health plans and policies cover contraceptive services for women at no cost beginning in 2012, some plans sponsored by religious employers and group health policies covering these groups may be exempt from the duty to coverage contraception under a new regulation that HHS, along with the Department of Labor Employee Benefit Services Administration (“EBSA) and the Department of Treasury Internal Revenue Service (“IRS”)(collectively, the “Agencies”) will jointly publish in the Federal Register on August 3, 2011. See here for more detailed information.

Plans & Insurers Should Review & Update Preventive Care & Other Wellness Benefits

Non-grandfathered health plans and policies, their sponsors, insurers, fiduciaries and administrators should carefully review and update their health plans for compliance with the existing preventive care mandates and other evolving rules about disease management and wellness benefits and coverages, as well as to consider the impending requirement to comply with additional Women’s Preventive Services coverage requirements in 2012 as part of their plan design and cost projections.

Existing health plans and health insurance should be reviewed to ensure that the programs appropriately cover all preventive services currently required by the applicable ACA mandates or other laws and re-reviewed for compliance with any updated rules before each plan year to identify any additional costs, changes to plan documents, communications, administrative procedures and vendor contracts required to administer the health plan in accordance with existing rules. For 2012, this should specifically consider the need to comply with the new Women’s Preventive Services coverage requirements that take effect next plan year also should be considered.

In addition to specifically planning for compliance with ACA’s preventive services coverage mandates, all health plans and policies, their sponsors, insurers, fiduciaries and administrators should review the other wellness and disease management components of their plans. In addition to ACA compliance, these arrangements may need redesign to minimize emerging exposures to challenge by the Equal Employment Opportunity Commission (“EEOC”) or private plaintiffs under the Americans With Disabilities Act (“ADA”). Since the Obama Administration took office, the EEOC has taken the position that many common wellness and disease management programs violate the ADA. In addition to these exposures, amendments to the nondiscrimination requirements of the Health Insurance Portability & Accountability Act (“HIPAA”), new nondiscrimination rules added by the Genetic Information & Nondiscrimination Act (“GINA”), federal mental health parity rules, evolving Affordable Care Act claims, coverage and other rules and guidance about essential benefits and other statutory, regulatory and enforcement changes often require updates to common disease management and wellness programs as well as other health plan provisions. Appropriate steps should be taken to review and update these and other plan terms, procedures, communications and practices to maintain compliance and support the ability to enforce plan terms and rely on plan cost projections.

The author of this update, attorney Cynthia Marcotte Stamer frequently conducts training and publishes on these and other matters. She is scheduled to speak about these and other changing health plan requirements in light of health care reform at the September 14, 2011 Houston WEB Chapter lunch and will be conducting briefings on preventive care, wellness and disease management and other rules for several other organizations over the next few months. You can find out about upcoming training or other events and get updates at www.CynthiaStamer.com.

For Help With These Or Other Health Plan Or Employee Benefit Matter

If you would like help reviewing or defending your organizations health plan or other insurance or employee benefit and employment practices in light of these or other laws, please contact attorney Cynthia Marcotte Stamer.

Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 23 years of work, advocacy, education and publications on employee benefit and related matters.

A board certified labor and employment attorney Ms. Stamer continuously advises and assists employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources programs and practices. She works extensively with plan sponsors, insurers, administrators, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

Ms. Stamer is scheduled to conduct training on these and other health benefit requirements for a number of organizations over the upcoming month. For information about these and other training opportunities or for other resources and information, see here or contact Ms. Stamer directly.

For Help or More Information

If you have questions or need help understanding or responding to the Regulations, with other health benefit design, administration or operations concerns, or with other employee benefits, compensation, labor or employment or other workforce management concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.

Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, and a council member of the ABA Joint Committee on Employee Benefits, Ms. Stamer is nationally recognized for her more than 23 years pragmatic and innovative health program work.

Board certified in labor and employment law by the Texas Board of Legal Specialization with extensive leading edge health plan experience, Ms. Stamer has worked continuously throughout her career helping health plan sponsors, fiduciaries, administrators, insurers and others design, administer and defend health and other employee benefit and insurance programs domestically and internationally. She is widely recognized for her experience helping design and implement legally compliant self-insured and insured health reimbursement, mini-med, high-deductible health plans, limited benefit plans, 24-hour and occupational medicine, ex-pat and medical tourism, deductible reimbursement and other creative health benefit programs to solve a wide range of financial and other challenges while coping with changing regulatory and market realities. Her work includes both working with clients to design, document, implement and administer these and other arrangements, as well as the development of wellness and disease management, claims administration and appeals, eligibility, and other administrative services, processes and technologies. She also works with plan fiduciaries, plan sponsors, insurers, administrators, brokers and advisors, bankruptcy trustees, creditors, debtors, service providers and their officers and directors about the prevention, investigation, mitigation and resolutions of civil and criminal liability arising from suspected or known benefit administration claims, breaches of fiduciary duty, privacy and data security breach, vendor disputes and other disputes arising in relation to employee benefit and insurance arrangements. As a continuing part of this representation, Ms. Stamer regularly represents and defends plan sponsors, fiduciaries, third party administrators and other service providers and management officials in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, World At Work, the ICEBS, SHRM and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Borzi Tells House Committee Current Fiduciary Regs Flawed; Must Fix Loopholes In Investment Advisor Definition To Protect Plans
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Conviction Highlights Risks Of Misleading Investors
DOL Considers Easing Rules For Electronic Benefit Communications
Improving The Effectiveness Of Compliance & Risk Management By Getting Hr On The Compliance Team
IRS Establishes Safe Harbor Election For Allocating Success-Based Fees Paid On Certain Business Transactions
IRS Changing Substantiation Rules For Business Travel Expenses
9/22/11 Cutoff To Apply For Affordable Care Act Annual Limit Temporary Waiver
Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures
IRS Releases Health Savings Account, High Deductible Health Plan 2012 Indexed Amounts
IRS Guidance On Affordable Care Act Requirement That Employers Report Cost Of Health Coverage On W-2 Released
Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans Or Mismanage Employee Benefit Plan Responsibilities
Health Plans, Insurers Get Limited & Imperfect Relief From Grace Period Extension For Some New Affordable Care Act Health Claims & Appeals Rules
EEOC Finalizes Updates To Disability Regulations In Response To Ada Amendments Act: Employers Should Manage Risks
Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Back Pay Settlement
Avoiding Liability For Another’s Health Plan Fraud
Health Plans & Employers Beware! $4.3 Million Civil Penalty Shows OCR Serious About HIPAA Enforcement
IRS Expands When HFSAS & HRAs May Allow Over-The-Counter Drug Purchases With Drug Cards
DOL Announces Changes To H-2b Prevailing Wage Calculation Rules
$1 Million + FLSA Overtime Settlement Shows Employers Should Tighten On-Call, Other Wage & Hour Practices
Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify
Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final Gina Regulations
EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination
DOL Proposes To Expand Investment Related Services Giving Rise To Erisa Fiduciary Status As Investment Fiduciary

Comments Off on New Affordable Care Act Guidance Helps Some Health Plans Stay Grandfathered | 105(h), ADA, Affordable Care Act, Claims Administration, Corporate Compliance, Discrimination, Disease Management, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Care Reform, Health Plans, Human Resources, Insurance, Public Policy | Tagged: Affordable Care Act, Employee Benefits, grandfathered health plan, grandfathered plan, Health Care Reform, Health Insurance, Health Plans, Insurance, medical insurance | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do

July 29, 2011

Cynthia Marcotte Stamer will speak to the Houston Chapter of WEB at 11:30 a.m on September 14, 2011 on “Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do.” Get details and register online at www.webnetwork.org/houston.

Updating you on the status of litigation challenging the ACA health care reforms in the courts;
Updating you on the key developments affecting health care regulatory reforms likely to impact your health plan;
Sharing an updated roadmap of the currently scheduled implementation of key future health benefit reforms enacted under ACA;
Sharing selected tips and strategies for managing compliance and other risks and deal with uncertainties arising as health care reform continues to evolve; and
Audience questions and discussion of questions and ideas.

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

Comments Off on Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Health Care Reform, Health Insurance, Health Plans, health policy, Insurance, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

Borzi Tells House Committee Current Fiduciary Regs Flawed; Must Fix Loopholes In Investment Advisor Definition To Protect Plans

July 28, 2011

Assistant Secretary of Labor, Employee Benefits Security Administration (EBSA) Phyllis C. Borzi testified Tuesday, July 26, 2011 to the House Committee on Education and the Workforce Subcommitte on Health, Employment, Labor, and Pensions that EBSA a proposed fiduciary regulation that would update EBSA regulations defining when a person is considered a “fiduciary” by reason of giving investment advice for a fee with respect to assets of an employee benefit plan or IRA will help protect employee benefit plan participants by correcting “loopholes” in a “flawed 35-year-old rule” that allow many parties providing advice about the investment of retirement plan assets to escape coverage by ERISA’s fiduciary responsibility rules. The proposed regulations and other stepped up regulations and enforcement of ERISA’s fiduciary protections by the EBSA means that plan sponsors, fiduciaries, investment advisors and other plan service providers and others involved in the sponsorship, design, and administration of an employee benefit plan need to act to manage expanding fiduciary responsibilities and exposures.

Borzi Says Loopholes & Other Flaws In Existing Regulations Hurt Plans & Their Participants

Borzi told the Committee that EBSA believes its rules about the types of advisory relationships that give rise to fiduciary status under the ERISA on the part of those providing investment advice services need to change because “technicalities” and “loopholes” in the current EBSA fiduciary regulations definition of “investment advisor” in effect since 1975 harms participants and beneficiaries by allowing many advisers to easily dodge fiduciary status.

Borzi testified that the five-part regulatory test used under the current regulations to determine when ERISA’s fiduciary requirements apply to “investment advice” and when the advisor is a “fiduciary” significantly narrowed the plain language of the ERISA statute so that much of what plainly is advice about plan investments is not treated as investment advice as fiduciary conduct under ERISA and the person paid to render that advice is not treated as an ERISA fiduciary.

Under current fiduciary regulation, an investment adviser is not treated as a fiduciary accountable for complying with ERISA’s prudence, exclusive benefit, prohibited transaction and other fiduciary responsibility safeguards if and when providing advice that meets each element of a five part test.

Under the current regulation, a person is a fiduciary under ERISA and/or the tax code with respect to their advice only if and when he or she:

Make recommendations on investing in, purchasing or selling securities or other property, or give advice as to their value;
On a regular basis;
Pursuant to a mutual understanding that the advice;
Will serve as a primary basis for investment decisions; and
Will be individualized to the particular needs of the plan.

Borzi told members of Congress this narrow definition of investment advisor exempts a wide range of parties receiving compensation for providing advice about the investment of employee benefit funds from coverage by ERISA’s fiduciary responsibility requirements. Borzi testified that the narrowness of the existing regulation opened the door to serious problems, and changes in the market since the regulation was issued in 1975 have allowed these problems to proliferate and intensify. Borzi says the narrowness of the regulation has harmed some plans, participants, and IRA holders. Research has linked adviser conflicts with underperformance. SEC reviews of certain financial sales practices may also reflect these influences. Finally, EBSA’s own enforcement experience has demonstrated specific negative effects of conflicted investment advice.

Borzi Says Proposed Regulation Would Strengthen Protections For Plans & Their Participants

Borzi said the proposed regulation published in the Federal Register on October 22, 2010 would change the rules defining a person is considered to be a “fiduciary” by reason of giving investment advice for a fee with respect to assets of an employee benefit plan or IRA by modifying the current regulation in effect since 1975 would replace the five-part test of “investment advisor” with a broader definition more in keeping with the statutory language while providing clear exceptions for conduct that should not result in fiduciary status.

According to Borzi, types of advice and recommendations that generally would trigger fiduciary status under the proposed regulations include: (1) appraisals or fairness opinions concerning the value of securities or other property; (2) recommendations as to the advisability of investing in, purchasing, holding or selling securities or other property; or (3) recommendations as to the management of securities or other property.

To be a fiduciary for performing these or other activities treated as fiduciary investment advice, Borzi explained that a person engaging in one of these activities must receive a fee and also meet at least one of the following four conditions:

Represent to a plan, participant or beneficiary that the individual is acting as an ERISA fiduciary;
Already be an ERISA fiduciary to the plan by virtue of having any control over the management or disposition of plan assets, or by having discretionary authority over the administration of the plan;
Be an investment adviser under the Investment Advisers Act of 1940; or
Provide the advice pursuant to an agreement or understanding that the advice may be considered in connection with investment or management decisions with respect to plan assets and will be individualized to the needs of the plan.

At the same time, Borzi testified that the proposed regulation recognizes that activities by certain persons should not result in fiduciary status. Specifically, these are:

Persons who do not represent themselves to be ERISA fiduciaries, and who make it clear to the plan that they are acting for a purchaser/seller on the opposite side of the transaction from the plan rather than providing impartial advice;
Persons who provide general financial/investment information, such as recommendations on asset allocation to 401(k) participants under existing Departmental guidance on investment education;
Persons who market investment option platforms to 401(k) plan fiduciaries on a non-individualized basis and disclose in writing that they are not providing impartial advice; and
Appraisers who provide investment values to plans to use only for reporting their assets to the DOL and IRS.
EBSA Still Working To Address Expressed Concerns

The proposed regulation has prompted a large volume of comments and a vigorous debate. Borzi testified that the EBSA is working hard to hear and consider every stakeholder concern and shared some examples of how EBSA is considering addressing certain of these concerns. Borzi said EBSA is taking multiple steps in its effort to respond to these and other concerns in its efforts to finalize the regulation including:

Borzi told the Committee EBSA is working to better understand how specific compensation arrangements would be affected by the proposed rule and whether clarifications of existing prohibited transactions exemptions would be appropriate. Borzi said EBSA has already begun to issue subregulatory guidance describing some of these clarifications and will continue to do so as necessary as it completes its analysis.

Borzi also said that as EBSA further develops its thinking in this rulemaking, EBSA is paying special attention to the two primary exceptions to fiduciary status under the proposed rule: (1) clarifying the difference between investment education that does not give rise to fiduciary status and fiduciary investment advice; and (2) clarifying the scope of the so-called “sellers’ exception” under which sales activity is not fiduciary advice. In both cases, Borzi said EBSA intends to analyze and address the comments and concerns that were raised during our extensive public comment period.

Finally, Borzi said EBSA is exploring a range of appropriate regulatory options for moving forward, taking into consideration public comments submitted for the record, EBSA’s economic analysis, and relevant academic research. In so doing, Borzi told the Committee EBSA is aiming to address conflicted investment advice while not unnecessarily disrupting existing compensation practices or business models.

Plan Sponsors, Fiduciaries, Service Providers Should Prepare For Tighter Rules While Continuing To Provide Input To EBSA

The proposed changes to the definition of investment advisor is one of many steps that EBSA is taking to tighten the regulations implementing ERISA’s fiduciary requirements and to enforce the protections of ERISA. The proposal to expand the conditions that providing investment advice regarding retirement plan assets will trigger the fiduciary protections of ERISA is designed to expand the reach of those regulations. Service providers involved in providing these or other related services generally will want to review and update their processes, documentation and training to manage new exposures likely to arise from these proposed regulations, while continuing to share feedback to EBSA and other rulemakers.

Service providers are not the only parties that need to update practices and provide input about these rules. Plan sponsors, fiduciaries, service providers, participants and beneficiaries also are impacted. Employers and other plan sponsors, fiduciaries and others need to anticipate and respond effectively to the inevitable efforts by providers of investment advice and other services to avoid or shift liability. Parties securing or relying on advice or services about investments or other responsibilities should:

Carefully, prudently conduct a documented investigation and critical analysis of existing and proposed advisors and other service providers credentials, analysis, performance, contract, recommendations and other conduct;
Carefully review contracts and other materials and secure appropriate constractual and other safeguards;
Require indemnification, insurance and other protections;
Ensure that appropriate action is taken to appoint parties intended to perform fiduciary advisory or other services to manage risks
Secure and maintain appropriate fiduciary and other liability insurance coverage;
Carefully conduct an appropriate, well-documented prudent review of performance, credentials and other relevant factors on a regular basis to preserve ongoing evidence of prudence; and
Other appropriate safeguards to manage risks and liabilities.

To help guard and position themselves to defend against fiduciary exposures plan sponsors, fiduciaries, service providers and others involved in the administration of health or other employee benefit plans should seek the advice of legal counsel with appropriate experience with employee benefit and other related matters to develop an understanding of ERISA and other laws and the duties and liabilities that these rules may create for their organizations and themselves personally. For additional tips and information about managing these risks, see here.

For Help With These Or Other Risk Management Matters

If you need assistance in auditing or assessing, updating or defending your wage and hour or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Comments Off on Borzi Tells House Committee Current Fiduciary Regs Flawed; Must Fix Loopholes In Investment Advisor Definition To Protect Plans | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Professional Liability, Reporting & Disclosure, Restructuring, Retirement Plans, Risk Management, Union | Tagged: 404, Director Liability, embezzlement, ERISA, Fiduciary, Fiduciary Responsibility, Officer Liability, Officers & Directors Liability, Owner Liability, Plan Sponsor Liability, Service Provider Liability, tpa | Permalink
Posted by Cynthia Marcotte Stamer

Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures

May 20, 2011

The National Labor Regulations Board (NLRB)’s announcement of a settlement against a Connecticut nursing home operator this week in conjunction with a series of other enforcement actions highlight the need for businesses to tighten defenses and exercise other caution to minimize their organization’s exposure to potential NLRB charges or investigation. As reflected by many of these enforcement acts, the exposures arise both from active efforts by businesses to suppress union organizing or contracting activities, as well as the failure to identify and manage hidden labor law exposures in the design and administration of more ordinary human resources, compliance, business operations and other policies and practices.

On May 17, 2011, the NLRB announced here that Connecticut nursing home operator Spectrum Healthcare has agreed to settle a NLRB case involving multiple allegations of unlawful suspensions, discharges and unilateral changes in violation of the National Labor Relations Act and other federal labor laws by offering reinstatement and back pay to all discharged and striking workers and signing a new three-year collective bargaining agreement with its employees’ union, New England Health Care Employees Union District 1199, SEIU.

Along with the contract and reinstatement of all employees, the company agreed to pay $545,000 in back pay and pension benefits to employees who were harmed by the unfair labor practices, and to expunge any disciplinary records related to the case. As a result, all NLRB charges against the company have been withdrawn. Spectrum admits to no wrongdoing in the settlement.

The settlement, reached midway through a hearing before an NLRB administrative law judge in Connecticut and approved by the judge yesterday, ends a long-running dispute which grew into a strike by almost 400 employees at four nursing homes in Connecticut operated by Spectrum Healthcare, LLC. Complaints issued by the NLRB Regional Office in Hartford alleged that, beginning in the fall of 2009, several months after the prior collective bargaining agreement expired, Spectrum discharged seven employees and suspended three others to retaliate against their union activities and to discourage other employees from supporting the union. In addition, one employee was discharged and seven others were suspended after the employer unilaterally changed its tardiness discipline policy without first bargaining with the union.

The complaints further alleged that in April 2010, employees at the four nursing homes — in Derby, Ansonia, Winsted, and Hartford — went on strike to protest the unfair labor practices. When the strikers offered unconditionally to return to work in late August, the employer refused to take them back. Under federal labor law, if a strike is called because of an unfair labor practice, employees are entitled to reinstatement after an unconditional offer to return to work.

The reinstated employees are due to return to the facilities this week.

The Spectrum Healthcare settlement is reflective of the growing number of NLRB enforcement orders against employers generally and health care providers specifically under the Obama Administration. The Obama Administration has close ties and has expressed its strong and open support for union and union organizing activities. The adoption of a series of union friendly labor law reforms was one of the key campaign promises of President Obama during his election campaign. While other legislative priorities and the change in the leadership of the House of Representatives appears to have slowed efforts to push through this agenda, it has not slowed the Administration’s efforts to support unions with strong enforcement activities. Empowered by a difficult economic and job situation and an awareness of the Obama Administration’s strong support for union organizing and other activities, unions are stepping up organizing efforts and more aggressively challenging employers actions.

Over the past few months, public awareness of the Obama Administration’s aggressive enforcement agenda on behalf of unions has drawn new attention as a result of the widespread media coverage of NLRB actions challenging Boeings planned relocation of certain manufacturing jobs intervention in a planned relocation of certain manufacturing operations. See, e.g., Acting General Counsel Lafe Solomon releases statement on Boeing complaint; National Labor Relations Board issues complaint against Boeing Company for unlawfully transferring work to a non-union facility. However, the Boeing and Spectrum Healthcare actions represent only the tip of the iceberg of the rising number of NLRB enforcement activities, most of which take place with little media or public attention.

Along side the Spectrum Healthcare and Boeing actions, in recent weeks, the NLRB also has been busy with several other enforcement activities. For instance:

On May 9 2011, the NLRB issued a complaint against Hispanics United of Buffalo (HUB), a nonprofit that provides social services to low-income clients, that alleges that HUB unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook ; and
On May 17, the NLRB secured a temporary injunction from a U.S. District Court in San Jose California against San Jose area waste hauling company OS Transport LLC, charged with engaging in unfair labor practices including the termination of a lead organizer and another Union supporter, retaliation against Union efforts in the form of unfavorable assignments, threats to Union supporters, and promises of improved treatment of employees who disavow the Union for the alleged purpose of defeating a union. o offer reinstatement to two drivers and restore full assignments to other drivers who had expressed support for a union during an organizing campaign. More Details here.,

In addition, in recent weeks, the NLRB also has:

Sued the state of Arizona on amendment limiting method for choosing union representation on May 5, 2011;
Secured an order requiring a Milwaukee job training center to pay back pay and reinstate workers fired for complaining about bounced paychecks on May 3, 2011;
Ordered a concrete supplier to rehire employees in Indianapolis on May 2, 2011;
Found a New York egg processing plant of unlawful interference and ordered a third election ohm April 27, 2011; and
Secured a settlement from Build.com of unlawful dischrage charges for firing employee based on Facebook comments on April 20

Amid this difficult enforcement environment, business leaders should exercise special care to prepare to defend their actions against both potential organizing efforts, to understand the types of actions and activities that may help fuel charges, and take steps to manage these and other union organization and other labor risks.

For Help With Labor & Employment, Employee Benefits Or Other Risk Management and Defense

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

About Solutions Law Press

Comments Off on Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures | 105(h), Absenteeism, ADA, Affirmative Action, Affordable Care Act, ARRA, Bankruptcy, Cafeteria Plans, Child Labor, CHIP, Claims Administration, COBRA, COBRA Subsidy, Corporate Compliance, Data Security, Defined Benefit Plans, Defined Contribution Plans, Disability, Disability, Disability Plans, Discrimination, Disease Management, Drug & Alcohol, E-Verify, EEOC, Employee Benefits, Employers, Employment Agreement, Employment Tax, ERISA, Excise Tax, Fair Labor Standards Act, family leave, Fiduciary Responsibility, FMLA, GINA, Government Contractors, H.R. 4872, Health Care Reform, Health Plans, HIPAA, Human Resources, I-9, Immigration, Income Tax, Insurance, Internal Controls, Internal Investigations, Labor Management Relations, Leave, Malpractice, medical leave, Medicare Part D, Mental Health, Mental Health Parity, Military Leave, Non-Compete, Non-Competition Agreement, Nonresident aliens, OFCCP, OSHA, Pandemic, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Privacy, Professional Liability, Protected Health Information, Public Policy, Refunds, Rehabilitation Act, Reporting & Disclosure, Restructuring, Retaliation, Retirement Plans, Risk Management, Safety, Sexual Harassment, Stimulus Bill, Swine Flu, Tax, Tax Credit, Tax Qualification, Telecommuting, Uncategorized, Unemployment Benefits, Unemployment Insurance, Union, USERRA, VEVRRA, Wage & Hour, Wellness, Wellness Programs, Whistleblower | Tagged: ADAAA, Americans With Disabiltiies Act, Employer, employment discrimination, facebook, HR, Human Resources, NLRA, social medial, unfair labor practices, Union | Permalink
Posted by Cynthia Marcotte Stamer

Recap of IRS Employee Plans 2011 1st Quarter Guidance

April 10, 2011

Keeping on top of the employee plan guidance published by the Internal Revenue Service (IRS) and other relevant agencies can be critical to efforts of plan sponsors, fiduciaries, administrators and other service provider’s ability to anticipate plan design or other actions needed to maintain compliance or manage other concerns. The following is a recap of the more significant the IRS Employee Plan guidance published by the IRS between January 1 and March 31, 2011.

Notice 2011-33, 2011-19 I.R.B.: Updates for the corporate bond weighted average interest rate for plan years beginning in April 2011; the 24-month average segment rates; the funding transitional segment rates applicable for April 2011; and the minimum present value transitional rates for March 2011.
Notice 2011-22, 2011-12 I.R.B. 557: Updates for the corporate bond weighted average interest rate for plan years beginning in March 2011; the 24-month average segment rates; the funding transitional segment rates applicable for March 2011; and the minimum present value transitional rates for February 2011.
Announcement 2011-21, 2011-12 I.R.B. 567: This announcement designates Form 8955-SSA, Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits, as the form to be used to satisfy the reporting requirements of §6057(a) of the Code for plan years beginning on or after January 1, 2009, and sets forth the due dates for filing the form for the 2009 plan year and subsequent plan years. .
Notice 2011-19, 2011-11 I.R.B. 550: This notice provides guidance regarding when securities of the employer are readily tradable on an established securities market or readily tradable on an established market for purposes of certain provisions of the Internal Revenue Code relating to employer securities held by certain qualified retirement plans. .
Announcement 2011-16, 2011-7 IRB 500: This announcement corrects a typographical error in Rev. Rul. 2011-3.
Rev. Rul 2011-7, 2011-10 I.R.B.: This revenue ruling provides guidance clarifying how the section 403(b) plan termination provisions apply. .
Announcement 2011-8, 2011-5 IRB 446: This announcement corrects an error in Rev. Proc. 2011-8 in the user fee schedule that applies to a non-mass submitter of a master or prototype (M&P) plan.
Notice 2011-13, 2011-9 I.R.B. 529: Updates for the corporate bond weighted average interest rate for plan years beginning in February 2011; the 24-month average segment rates; the funding transitional segment rates applicable for February 2011; and the minimum present value transitional rates for January 2011.
Notice 2011-7, 2011-5 I.R.B. 437: Updates for the corporate bond weighted average interest rate for plan years beginning in January 2011; the 24-month average segment rates; the funding transitional segment rates applicable for January 2011; and the minimum present value transitional rates for December 2010.
Notice 2011-3, 2011-2 IRB 263: The notice provides guidance on the special rules relating to funding relief for single-employer defined benefit pension plans (including multiple employer defined benefit pension plans) under the Preservation of Access to Care for Medicare. Beneficiaries and Pension Relief Act of 2010 (PRA 2010), Pub. L. No. 111-192.
Rev. Rul. 2011-3, 2011-4 I.R.B. 326: The covered compensation tables under Code §401 for the year 2011 are provided to determine contributions to defined benefit plans and permitted disparity.
Rev. Proc. 2011-4, 2011-1 I.R.B. 123: Annual EP/EO revenue procedure on letter rulings.
Rev. Proc. 2011-5, 2011-1 I.R.B. 167: Annual EP/EO revenue procedure on technical advice.
Rev. Proc. 2011-6, 2011-1 I.R.B. 195: Annual EP determination letter revenue procedure.
Rev. Proc. 2011-8, 2011-1 I.R.B. 237: Annual EP/EO revenue procedure on user fees.

For Help With These Or Other Risk Management Matters

If you need assistance in accessing, assessing or auditing, updating or defending your employee benefit or compensation arrangements and practices in response to this recent guidance or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

About Solutions Law Press

Comments Off on Recap of IRS Employee Plans 2011 1st Quarter Guidance | Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, Employment Tax, ERISA, Retirement Plans, Risk Management, Tax, Tax Qualification | Tagged: 401(k) Plan, 403(b) Plan, employee benefit plan, Employee Plan, IRS, plan qualification, Qualified Plan, retirement plan, Tax | Permalink
Posted by Cynthia Marcotte Stamer

IRS Guidance On Affordable Care Act Requirement That Employers Report Cost of Health Coverage On W-2 Released

April 9, 2011

The Internal Revenue Service has released an advance copy of interim guidance implementing requirements that employers report to employees of the cost of their employer-sponsored group health plan coverage required under Internal Revenue Code (Code) § 6051(a)(14) of the Code, as enacted as part of the Affordable Care Act.

The interim guidance contained in Notice 2011-28 generally applies beginning with 2012 Forms W-2 (that is, the forms required for the calendar year 2012 that employers generally are required to furnish to employees in January 2013 and then file with the Social Security Administration (SSA)).

The Affordable Care Act will require that employers report to employees information about the cost of employer provided health care coverage beginning in January 2013. According to Notice 2010-69, employers are permitted, but not required to report the cost of health coverage on any forms required to be furnished to employees prior to January 2013. However, any employers that choose to report earlier (on the 2011 Forms W-2 generally furnished to employees in January 2012) may look to this notice for guidance regarding that voluntary earlier reporting.

Reporting to employees pursuant to Code § 6051(a)(14) is for their information only. The report of the information is intended by Congress to inform employees of the cost of their health care coverage. It does not cause otherwise excludable employer-provided health care coverage to become taxable. This notice provides interim guidance that

Notice 2011-28 will be published in Internal Revenue Bulletin 2011-16 on April 18, 2011.

For Help With Affordable Care Act or Other Employee Benefits or HR Needs

The new W-2 reporting requirement is one of a multitude of changes impacting the responsibilities of employment based health care coverage enacted under the Affordable Care Act.

If you have any questions or need help responding to the Affordable Care Act or other any other health plan or insurance employee benefit, compensation, workforce or internal control concerns, please contact the author of this update, Cynthia Marcotte Stamer here or at (469)767-8872.

About Solutions Law Press

Comments Off on IRS Guidance On Affordable Care Act Requirement That Employers Report Cost of Health Coverage On W-2 Released | Affordable Care Act, Employee Benefits, Employers, Employment Tax, ERISA, Health Care Reform, Health Plans, Human Resources, Insurance, Internal Controls, Patient Protection and Affordable Care Act, Payroll Tax, Tax | Tagged: Affordable Care Act, Employer, Health Care Reform, Health Plans, premiums, Tax, w-2 | Permalink
Posted by Cynthia Marcotte Stamer

Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities

April 4, 2011

Mitigate Risk With Appropriate Prevention, Monitoring & Response

Executives, board members, and other business leaders of companies providing health, 401(k) or other employee benefits under plans regulated by the Employee Retirement Income Security Act of 1974, as amended (ERISA) should heed a series of recent fiduciary liability settlement orders and lawsuits of the U.S. Department of Labor (Labor Department) as important reminders of the potential personal liability exposures executives can may face if their company’s benefit programs are not appropriately maintained and administered.

Recent Enforcement Actions, Changing Regulations Highlight Fiduciary Risks

On March 29, 2011, the Labor Department sued the owner of Eyeglass Factory, Inc. (EGF), Stephen Schaffer, for breach of fiduciary duties under ERISA by failing to ensure that EGF timely forwarded health plan contributions collected from employees to pay health plan contributions to the plan and failing to ensure that he and other plan fiduciaries and service providers were bonded in accordance with ERISA’s fidelity bond requirements.[i] The Labor Department suit charges that from July 1, 2000 to October 1, 2000, Schaffer and EGF withheld and failed to forward to the health plan contributions deducted from employee pay for health insurance coverage and contributions made to the flexible benefit plan sponsored by EGF from January 1, 2000 to December 4, 2000. The employees’ paycheck withholdings were commingled with the company’s general assets and used for its general operating expenses. The Labor Department is asking the court to order that Schaffer and other defendants make restitution to the plan for the misapplied contributions, including lost opportunity costs, to correct prohibited transactions and to appoint an independent fiduciary to oversee the plans once Schaffer is removed as the plan fiduciary.

The Schaffer suit follows the Labor Department’s successful prosecution of a breach of fiduciary duty action against Larry Lauterback, the president and former owner of a Minnesota Cement Company, for his role in allowing his construction company to commingle with company assets and divert to company use employee health and 401(k) contributions withheld from employee’s pay. In Solis v. Larry Lauterback, [ii] the District Court ordered Lauterback to restore $17,273.18 in unremitted employee contributions and lost opportunity costs to the company’s health and dental plan, and $747.20 in unremitted employee contributions to the company’s 401(k) plan and enjoins Lauterback from serving or acting as a fiduciary or service provider to any employee benefit plan for three years.. The order followed the entry of a consent judgment against Lauterback and the plan sponsor, Slate Cement, Inc., for failure to remit employee contributions, failure to forward employee contributions to medical and dental providers, co-mingling employee contributions of the general assets and using those assets for company operations.

The Schaffer and Lauterback actions taken in March, 2011 are only the most recent in a series of enforcement actions taken against business executives, board members, plan vendors and others for their role in committing or failing to take prudent steps to prevent or redress alleged misconduct relating to the maintenance, administration and funding of various employee benefit programs regulated by ERISA. In recent months and years, the Labor Department has filed several lawsuits against business executives and businesses for alleged breaches of fiduciary duties. While misuse of employee contributions by plan sponsors is a common focus of many of these actions, plan sponsors, plan service providers and members of their management with discretionary authority or responsibility over plan assets or administration or the election of those appointed to administer those responsibilities often arise out of the failure or these individuals to take prudent steps to prevent, monitor or address misconduct by other plan fiduciaries or service providers.[iii]

Plan sponsors, fiduciaries, service providers and their management should anticipate these risks and their attendant responsibilities will continue to rise as the Labor Department moves forward to adopt and implement revisions and enhancements to its fiduciary regulations such as those provided for in the new “Interim Final Regulation Relating to Improved Fee Disclosure for Pension Plans” scheduled to take effect in July, 2011 and the Proposed Regulation on the “Definition of the Term Fiduciary” published by the Labor Department in July and October, 2010 respectively.

Meanwhile, the Labor Department enforcement activities highlight the longstanding and ongoing policy of aggressive investigation and enforcement of alleged misconduct by companies, company officials, and service providers in connection with the maintenance, administration and funding of ERISA-regulated employee benefit plans. In its Fiscal Year 2010, the Labor Department closed 3,112 civil investigations, of which 2,301 (73.94%) resulted in monetary recoveries or other corrective action. The Labor Department referred 264 cases for civil litigation and filed 128 civil lawsuits. Meanwhile on the criminal side, the Labor Department closed 281 criminal investigations and obtained indictments against 96 people.

In addition to prosecutions brought by the Labor Department, companies and individuals that exercise discretion and control of the administration or funding of employee benefit plans regulated by ERISA also may be sued personally by participants and beneficiaries for breach of fiduciary under ERISA. A review of the Labor Department’s enforcement record and existing precedent makes clear that where the Labor Department perceives that a plan sponsor or its management fails to take appropriate steps to protect plan participants, the Labor Department will aggressively pursue enforcement regardless of the size of the plan sponsor or its plan, or the business hardships that the plan sponsor may be facing.

Plan Sponsors, Fiduciaries, Service Providers & Their Management Should Act To Manage Exposures

Given these exposures, businesses providing employee benefits to employees or dependents, as well as members of management participating in, or having responsibility to oversee or influence decisions concerning the establishment, maintenance, funding, and administration of their organization’s employee benefit programs need a clear understanding of their responsibilities with respect to such programs, the steps that they should take to demonstrate their fulfillment of these responsibilities, and their other options for preventing or mitigating their otherwise applicable fiduciary risks.

To help guard and position themselves to defend against these and other exposures, plan sponsors, fiduciaries, service providers and others involved in the administration of health or other employee benefit plans should seek the advice of legal counsel with appropriate experience with employee benefit and other related matters to develop an understanding of ERISA and other laws and the duties and liabilities that these rules may create for their organizations and themselves personally. For additional tips and information about managing these risks, see here.

For Help With These Or Other Risk Management Matters

About Solutions Law Press

[i] Chao v. Stephen Schaffer, the Eyeglass Factory, Inc., No O2-CV-60197, as announced in EBSA Release No. 11-341-CHI (March 29, 2011).

[ii] Solis v. Larry Lauterback, as announced in EBSA Release No 11-322-CHI (March 14, 2011).

[iii] See, e.g. Chao v. Associated Plan Administrators, as announced in EBSA Release No. 07-1265-BOS/BOS 2007-298 (October 16, 2007); Chao v. Starkey, as announced in EBSA Release No. 05-747-ATL (May 2, 2005); Chao v. Perry., as announced in EBSA Release BOS 2002-054 (March 21, 2002); Chao v. Mabry, as announced in EBSA Release No. 160 (March 20, 2002). See also, e.g., Baker v. Kingsley, 2006 WL 2027606 (N.D.Ill.2007); In Re Enron Corp Securities Derivative & “ERISA” Litigation, 284 F.Supp. 511 (S.D.Tex. 2003); Varity Corp. v. Howe, 516 U.S. 489 (1996); Brink v. DeLesio, 496 F. Supp. 1350 (D.Md. 1980).

Comments Off on Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Professional Liability, Reporting & Disclosure, Restructuring, Retirement Plans, Risk Management, Union | Tagged: 404, Director Liability, embezzlement, ERISA, Fiduciary, Fiduciary Responsibility, Officer Liability, Officers & Directors Liability, Owner Liability, Plan Sponsor Liability, Service Provider Liability, tpa | Permalink
Posted by Cynthia Marcotte Stamer

EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act

March 24, 2011

Employers Urged To Tighten Disability Related Discrimination Risk Management

Employers should review and update their existing employment and employee benefit practices in response to updated regulations (Final Regulations) governing the disability discrimination rules of the Americans With Disabilities Act as amended by the ADA Amendments Act (ADAAA) that the Equal Employment Opportunity Commission (EEOC) will publish in the Friday, March 25, 2011 Federal Register.

On Thursday, March 24, 2011, the EEOC released an advance copy of the Final Regulations along with two Question-and-Answer documents about the Final Regulations to aid the public and employers – including small business – in understanding the law and new regulations. The Final Regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website here .

The changes contained in the updated Final Regulations update the EEOC’s disability regulations in response to amendments made to the ADA by Congress as part of the ADAAA. Like the ADAAA they implement, the Final regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).

The Final Regulations and the ADAAA amendments they implement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. Since these changes make it easier for certain employees to qualify as disabled under the ADA, businesses should act strategically to mitigate their ADA exposures in response to the Final Regulations. Learn more about the Final Regulations and get suggestions for risk management of expanding disabilities discrimination exposures here.

For Help With Disability Discrimination Risk Management or Other Needs

If you need assistance in auditing or assessing, updating or defending your disability management or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

About Solutions Law Press

Comments Off on EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act | Absenteeism, ADA, Affirmative Action, Corporate Compliance, Disability, Disability, Disability Plans, Discrimination, Drug & Alcohol, EEOC, Employee Benefits, Employers, GINA, Government Contractors, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Leave, Military Leave, Non-Compete, Rehabilitation Act, Retaliation, Union | Tagged: ADA, ADAAA, Americans With Disabiltiies Act, Disability Discrimination, Employer, employment discrimination, HR, Human Resources | Permalink
Posted by Cynthia Marcotte Stamer

Speak Up On The 1st Anniversary of Health Care Reform

March 23, 2011

On the 1st anniversary of the passage of Health Care Reform, let’s celebrate by accepting the invitation from Joe Biden to “discuss how health care reform is already working.”

Below is the text of an e-mail I (and millions of other Americans, I suspect, received an e-mail from Joe Biden, in which he touts health care reform as already saving patients like a young man from Minnesota. In the e-mail, Biden says: “On the one-year anniversary of the Affordable Care Act, I think we have a duty to discuss how reform is already working.” OK, tell me what you think?

Unquestionably, health care reform produces some winners and loosers. Although few of the reforms enacted are actually in effect yet, Biden says heath care reform is working and credits the law for saving the life of the young man and millions of others. On the other hands, many patients and doctors treating patients with cancer and other life threatening illnesses complain and report fears that in the future increasing Medicare, Medicaid or other government regulations and market distruptions. Some folks think it’s all good. Other’s think it’s all bad. Many American’s think it’s a little bit of both and many just don’t know.

Where does the truth lie? On the 1st anniversary of the passage of health are reform, one thing is certain. The American health care system and it’s impact on our employees, families, friends, communities and goverment and personal budget’s is too great to be complacent. So, as Health Care Reform turns one, let’s accept the invitation of Vice President Biden and share our experiences and thoughts with our elected representatives, regulators, with others on with others on the Coalition for Responsible Health Care Policy linkedin a the following link and keep the discussion going until we get it right:

Coalition for Responsible Health Care Policy

Here’s the e-mail from “Joe Biden [info@barackobama.com]”

Cynthia –I want to tell you about a family in Minnesota.

Justin and Kari live in Brooklyn Park, right outside of Minneapolis. They’re parents to three children. Their three-year-old, William, was born with a genetic disorder called tuberous sclerosis complex.

For the rest of his life, William will wrestle with tumors in his brain, his heart, his kidneys, his skin, and possibly other major organs. He must take medication to control seizures and faces the threat of kidney disease.

What Justin and Kari want for William is a future. And because of health reform, that’s what he’ll have.

Today, insurance companies are no longer able to discriminate against William because of the condition he’s dealt with since birth. Now, Justin and Kari know they’ll be able to get the kind of care that William needs — today and into the future.

Their story isn’t unique, but it’s one of many that need to be told. We all know people whose lives have been changed because of the Affordable Care Act, even if we don’t realize it. So we’ve found a way to show exactly how reform is working for all of us — for our parents, our siblings, our kids, ourselves.

Will you take a minute to take our Health Reform Checkup and let the people you love know how reform is working for them?

Before the Affordable Care Act, Justin and Kari weren’t sure about the future. They worried that they’d never be able to find coverage for William again if Justin lost his job. They worried about the life that William would lead — whether he’d ever be able to work or support a family.

Not anymore. William’s condition isn’t going away, but he’ll always be able to get care. The Affordable Care Act is one year old today, and it has already changed William’s life — and this country — for good.

Today, there are families who feel better about the future than they did a year ago. They’ve found some security, some relief. And these are people we know. They’re our neighbors, our colleagues, our friends, our families — the people next to us every day.

On the one-year anniversary of the Affordable Care Act, I think we have a duty to discuss how reform is already working.

Watch Justin and Kari tell their story, and take a moment to learn how health reform is changing the lives of those you know:

http://my.barackobama.com/Checkup

A year ago, I stood next to the President as he signed health reform into law — and we have you to thank for making that possible.

Yours,

Joe

Paid for by Organizing for America, a project of the Democratic National Committee — 430 South Capitol Street SE, Washington, D.C. 20003. This communication is not authorized by any candidate or candidate’s committee.

Comments Off on Speak Up On The 1st Anniversary of Health Care Reform | 105(h), Affirmative Action, Affordable Care Act, Child Labor, Disability, Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, Human Resources, Patient Protection and Affordable Care Act, Public Policy | Tagged: Affordable Care Act, Health Care, Health Care Reform, Health Plans | Permalink
Posted by Cynthia Marcotte Stamer

Avoiding Liability For Another’s Health Plan Fraud

February 25, 2011

TPA’s Embezzlement Guilty Plea Reminds Plan Sponsors, Fiduciaries & Service Providers To Ensure Fiduciaries, Administrators & Staff Prudently Selected, Monitored & Bonded

The guilty plea of an Ohio-based third-party administrator to embezzlement of $1 million in plan assets reminds employers and other employee benefit plan sponsors and members of their management participating in plan related activities, plan administrators and other plan fiduciaries and plan service providers (“plan decision-makers”) of the importance of ensuring appropriate, well-documented credentialing and selection, oversight, auditing and bonding the individuals and companies acting as fiduciaries and others participating in administration of plans or their assets (“plan workforce members”) to minimize their potential exposure to potential personal liability as a result of the fraud under the Employee Retirement Income Security Act (ERISA).

Cox Prosecution Reflective DOL Readiness To Prosecute Parties For Misuse of Plan Monies & Other Plan Fraud

According to a February 23, 2011 U.S. Department of Labor (DOL) announcement, Rhonda Sue Irvin Cox, owner of Irvin Administrative Solutions LLC (IAS), pleaded guilty to the embezzlement of $1 million of retirement plan assets from client plans administered by IAS. The DOL reports that between January 2003 and April 2007, Cox plead guilty to using used her position with ISC to embezzle the funds from 12 of 59 plans for which IAS served as a third party administrator. Cox also pleaded guilty to one count of making false statements in documents required under ERISA to be kept and certified by the plans’ administrator. Scheduled to be sentenced on June 1, 2011, Cox faces a maximum of five years in prison on each criminal count, a $250,000 fine and a special assessment. Cox is scheduled to be sentenced on June 1, 2011.

The DOL and Justice Department have a long-standing record of aggressive investigation and prosecution of embezzlement or other fraud impacting health and other employee benefit plans. Their criminal and civil enforcement and prosecution record makes clear this commitment remains strong.

Plan Sponsors, Fiduciaries & Service Providers May Face Civil Liability From When Others Defraud Their Plans

While plan decision-makers generally are aware that individuals defrauding health or other employee benefit plans risk criminal and civil prosecution, many fail to recognize their own potential civil liability exposures that may arise out of the fraudulent acts or other misconduct of another plan workforce member.

Embezzlement of plan assets is one of many acts of misconduct that can create potential fiduciary liability exposure for plan decision-makers under ERISA. Until confronted with potential fraud, misconduct or other misfeasance by a plan fiduciary, service provider or other plan workforce member, many plan decision-makers lack an adequate appreciation of the personal liability they may incur if they cannot demonstrate appropriate steps were taken to protect their health plan from this misconduct.

Under ERISA’s fiduciary responsibility rules, embezzlement or other misuse of employee contributions or other plan assets as well as certain other misconduct or misfeasance by a plan fiduciary, service provider or other plan workforce member can create personal liability exposures for plan decision-makers with responsibility or discretionary authority over the selection, retention, or management of plan workforce members if the plan decision-maker cannot demonstrate appropriate steps were taken to select, monitor and bond the plan workforce and other prudent action was taken to prevent and redress the fraud. Accordingly, health plans, their sponsors, fiduciaries, service providers, their management, and others serving as, or selecting, managing or retaining companies or individuals that participate in the handling of health plan assets or administration should act to strengthen their health plans and themselves against these exposures.

Risk Management Strategies & Tips

When embezzlement or other concern affecting their health plan arises, plan decision-makers concerned about protecting their health plans and themselves must act promptly in a carefully documented, prudent manner to investigate and respond to the concern. They should be prepared to present well-documented evidence of the scope and limits of their responsibility, authority, awareness, and potential for the selection, monitoring and oversight of the plan workforce member or others responsible for the performance of those actions, the adequacy of the bonding arrangements for the plan, and other efforts to prudently protect the plan before, during and after the discovery of the concern. While these and other steps can help strengthen the ability of a plan decision-maker to liability exposures that can result from the other plan workforce member’s embezzlement of plan assets or other misconduct, plan sponsors and plan decision-makers also should acquire suitable fiduciary and other liability insurance coverage and make other arrangements to help provide for the potential financial costs and other demands that are likely to arise in the event that it becomes necessary to investigate or redress fraud or other misconduct. Learn more here.

For Help With Investigations, Policy Review & Updates Or Other Needs

If you need help investigating or responding to fraud or other misconduct affection a health or other employee benefit plan, dealing with an employee benefit plan investigation or enforcement action by the Labor Department, private plaintiffs or another public or private party, reviewing current or proposed health plan processes or procedures, or responding to other employee benefit, labor and employment or other related controls and practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

For more than 23 years, Ms. Stamer has counseled, represented and trained employers and other employee benefit plan sponsors, plan administrators and fiduciaries, insurers and financial services providers, third party administrators, human resources and employee benefit information technology vendors and others privacy and data security, fiduciary responsibility, plan design and administration and other compliance, risk management and operations matters. In connection with this work, Ms. Stamer regularly counsels and helps clients to defend a broad range of clients about employee benefit plan fraud and other fiduciary responsibility concerns. Throughout her career, she has represented and served as special counsel to health and other employee benefit plans, plan sponsors, plan service providers, officers, directors and other management officials, bankruptcy trustees, debtors and creditors, and others in connection with health and other employee benefit plan fraud and other fiduciary responsibility and related investigations, prosecutions and other actions involving the Labor Department, IRS, HHS, Justice Department, state insurance and attorneys general, bankruptcy actions, and participant, beneficiary and vendor disputes. She also is recognized for her publications, industry leadership, workshops and presentations on these and other employee benefits, insurance and human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

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

Comments Off on Avoiding Liability For Another’s Health Plan Fraud | Defined Benefit Plans, Defined Contribution Plans, Disability Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Malpractice, Professional Liability, Retirement Plans, Risk Management | Tagged: co-fiduciary liability, embezzlement, employee benefit, ERISA, Fiduciary Liability, fraud, Health Plan | Permalink
Posted by Cynthia Marcotte Stamer

Health Plans & Employers Beware! $4.3 Million Civil Penalty Shows OCR Serious About HIPAA Enforcement

February 23, 2011

A $4.3 million civil monetary penalty (CMP) imposed by the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) against Cignet Health of Prince George’s County, Md., (Cignet) signals the growing need for health plans and their sponsors, health care providers, health care clearinghouses and their business associates covered by the Health Insurance Portability & Accountability Act (HIPAA) Privacy Rule to get serious about HIPAA compliance.

The first CMP ever assessed by OCR under the HIPAA Privacy Rule, the Cignet CMP assessment announced February 22, 2011, the $4.3 million CMP against Cignet announced February 22, 2011 applies the expanded HIPAA violation categories and increased HIPAA civil monetary penalty amounts authorized as part of the expansion of HIPAA obligations and penalties enacted as part of the Health Information Technology for Economic and Clinical Health (HITECH) Act in 2009.

The Cignet penalty announcement is the latest in a series of developments documenting the rising risks that health care providers, health plans, health care clearinghouses and their business associates (“covered entities”) face for violations of HIPAA.

Even before the announcement of the Cignet CMP, the HIPAA Privacy exposures of covered entities for failing to comply with HIPAA already had risen significantly. While OCR had not assessed any civil monetary penalties against any covered entity for violation of HIPAA before Cignet, OCR’s collection of $1 Million from Rite Aid in a 2010 Resolution Agreement, $2.25 million from CVS Pharmacy, Inc. under a 2009 Resolution Agreement and $100,000 from Providence Health & Services under a 2008 Resolution Agreement demonstrated that covered entities could face significant civil liability for willful violations of the Privacy Rules. In addition, the Department of Justice has secured several criminal convictions or pleas under HIPAA’s criminal provisions. OCR data confirms that the covered entities involved in these actions included health care providers, health plans, and others.

Health plans and other covered entities as well as their business associates should tighten privacy policies, breach and other monitoring, training and other practices to mitigate against exposures in light of recently tightened requirements and new enforcement risks. To minimize the potential that the health plan’s sharing of information with the employer will create or spread HIPAA or other privacy risks to the employer or members of its workforce, employers and other plan sponsors and members of their workforce also should take steps to ensure not only that their health plan documents, policies and procedures, as well as those policies and practices applicable to employer, its human resources, and benefits advisors when accessing or handling health plan or other medical information on behalf of the employer, rather than the plan, are appropriately designed and administered.

Read more details and get tips here.

For Help With Investigations, Policy Review & Updates Or Other Needs

If you need assistance in auditing or assessing, updating or defending your HIPAA or other health plan, or other labor and employment, employee benefit, compensation, privacy and data security, or other internal controls and practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Ms. Stamer, a noted Texas-based employee benefits and employment lawyer Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, will discuss HIPAA and other privacy risks and risk management strategies for employers, health and employee benefit plan sponsors and their administrators at the Southwest Benefits Association/IRS Plan Administrator Skills Workshops to be held February 25 in Dallas and March 4 in Houston.

For more than 23 years, Ms. Stamer has counseled, represented and trained employers and other employee benefit plan sponsors, plan administrators and fiduciaries, insurers and financial services providers, third party administrators, human resources and employee benefit information technology vendors and others privacy and data security, fiduciary responsibility, plan design and administration and other compliance, risk management and operations matters. She also is recognized for her publications, industry leadership, workshops and presentations on privacy and data security and other human resources, employee benefits and health care concerns. Her many highly regarded publications on privacy and data security concerns include “Privacy Invasions of Medical Care-An Emerging Perspective.” ERISA Litigation Manual. BNA, 2003-2009; “Privacy & Securities Standards-A Brief Nutshell.” BNA Tax Management and Compliance Journal. February 4, 2005; “Cybercrime and Identity Theft: Health Information Security beyond HIPAA.” ABA Health eSource. May, 2005 and many others. She also regularly conducts training on HIPAA and other privacy and data security compliance and other risk management matters for a broad range of organizations including the Association of State and Territorial Healthcare Organizations (ASTHO), the Los Angeles County Health Department, a multitude of health plans and their sponsors, health care providers, the American Bar Association, SHRM, the Society for Professional Benefits Administrators and many others.t Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Comments Off on Health Plans & Employers Beware! $4.3 Million Civil Penalty Shows OCR Serious About HIPAA Enforcement | ARRA, Employee Benefits, Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Internal Investigations, Privacy, Protected Health Information, Stimulus Bill, Tax | Tagged: Employer, Health Plans, HIPAA, OCR, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

ERISA Leader Nell Hennessy Dies From Cancer

February 4, 2011

Nell Hennessy died February 4, 2011 after a brave battle with cancer. Her passing was announced earlier today by Phyllis C. Borzi, Assistant Secretary of Labor Employee Benefits Security Administration.

Ms. Hennessy, Chief Executive Officer of Fiduciary Counselors Inc., was widely respected in the employee benefit community for both her professional leadership in the development of employee benefit law and her generous mentorship and friendship to employee benefits practitioners throughout her career.

Ms. Hennessy began her legal career as an attorney in two of the three federal agencies that regulate employee benefits, first in the Office of the Chief Counsel at the Internal Revenue Service (1978-80) and then at the PBGC (1980-81). She later served as Deputy Executive Director and Chief Negotiator of the Pension Benefit Guaranty Corporation (PBGC), the federal agency that guarantees private defined benefit pensions. She represented PBGC in negotiations with major corporate pension plan sponsors and unions in a wide range of industries, including auto, steel, chemical, textile and airlines. Working closely with the Department of Labor, she negotiated an agreement with General Motors that permitted GM to contribute employer stock to its hourly plan – the largest such transaction in U.S. history — forming the basis for a ground-breaking prohibited transaction exemption that allowed GM to subsequently spin off its EDS subsidiary. She negotiated the restructuring of TWA’s debt to PBGC and Carl Ichan, which allowed TWA to successfully reorganize. The Early Warning Program she headed at PBGC was awarded one of the first federal Innovations in American Government Awards by the Ford Foundation and the Kennedy School of Government at Harvard University.

In addition to her professional service, Ms. Hennessy also generously mentored others in the profession. Ms. Hennessy chaired the ABA Joint Committee on Employee Benefits and the Employee Benefits and Executive Compensation Committee in the ABA Section of Business Law. She was a member of the ABA Standing Committee on Technology and Information Systems and was a member of the ABA Presidential Task Force on Corporate Responsibility, which produced the “Cheek Report” cited favorably by the SEC in regulations regulating the conduct of lawyers under the Sarbanes-Oxley Act.

Since 1985 Ms. Hennessy has been an adjunct professor at Georgetown University Law Center, where she helped develop the graduate certificate program in employee benefits. She was a founding Board member of the American College of Employee Benefits Counsel and she a founding member and past President of the Worldwide Employee Benefits Network (WEB). Ms. Hennessy is also a member of the National Bankruptcy Conference, a non-partisan, organization of approximately 60 lawyers, law professors and bankruptcy judges who advise Congress on bankruptcy law.

Ms. Hennessy received her B.A. from James Madison College at Michigan State University in 1971, her J.D. from the Catholic University of America in 1978 and her L.L.M. in Taxation from Georgetown University Law Center in 1984. Her publications include ERISA—Fiduciary Responsibility and Prohibited Transactions (BNA Tax Management Portfolio No. 365) and the HR and Benefits Guide to Mergers and Acquisitions (Thompson Publishing 2001).

A memorial service for Ms. Hennessy is planned for Saturday, February 26th at 11 a,m.at St. Joseph’s Church on Capitol Hill, 313 2nd St NE, Washington DC 20002, followed by a reception at the Irish Channel at 500 H St. NW, Washington DC 20001.

According to Ms. Borzi, persons wishing to memorialize Ms. Hennessy are encouraged to contribute to the Nell Hennessy Employee Benefits Scholar Award at the Catholic University of America, Office of Development and Alumni Relations, 3600 John McCormack Rd., NE, suite 339, Washington, DC 20064.

If you or someone else you know would like to receive future updates about human resources or employee benefits developments, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.

About Solutions Law Press, Inc.™

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

Comments Off on ERISA Leader Nell Hennessy Dies From Cancer | Bankruptcy, Employee Benefits | Tagged: Employee Benefits, ERISA, Hennessy, PBGC | Permalink
Posted by Cynthia Marcotte Stamer

Free 2/7 RPTE Employee Benefits & Other Compensation Arrangements Study Group Teleconference Call On Evolving Health Care Reform Plan Guidance

January 27, 2011

The American Bar Association (ABA) Real Property, Trust & Estates Employee Benefits & Other Compensation Arrangements Group invites interested members and other legal professionals to participate in a complimentary one hour study group conference call focusing on selected health plan developments on Monday, February 7, 2011 at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific.

Hosted by the Group’s Welfare Plan Committee, the study group call will feature a roundtable discussion of various current Health Care Reform issues. The discussions will be lead by Sarah Brown, Associate General Counsel, HealthSmart Holdings, Inc., Cynthia Marcotte Stamer, Esq., Elizabeth Ysla Leight, Society of Professional Benefit Administrators, and Robert A. Miller, Calfee, Halter & Griswold LLP, but all members will be invited to share their views and experiences.

Planned topics of discussion include the following:

105(h) issues, enforcement delay, comment opportunity and other developments
Drug card HRSA reimbursements
GINA and other wellness issues
Latest information on the Tax Section Meeting and the Baltimore TEGE discussion
Other PPACA topics

The dial-in information for the call is:

Phone Number: (866) 646-6488

Participant Pass code: 7255887619#

Participation is available on a first come, first serve basis at no charge, based on the availability of lines. Group members or others planning to participate are encouraged to R.S.V.P. via e-mail here to be included on the distribution list for materials to be shared in connection with the meeting.

For additional information about the Group, the Study Group call or other opportunities for involvement, contact Group Chair Cynthia Marcotte Stamer via e-mail here or at (469) 767-8872 or Group Vice Chair Robert Miller via email here or at (216) 622.8363. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.

About Solutions Law Press, Inc.™

Comments Off on Free 2/7 RPTE Employee Benefits & Other Compensation Arrangements Study Group Teleconference Call On Evolving Health Care Reform Plan Guidance | 105(h), Discrimination, Employee Benefits, Employers, ERISA, Health Plans, Human Resources | Tagged: 105(h), Affordable Care Act, Health Care Reform, Health Plans, RPTE, Stamer | Permalink
Posted by Cynthia Marcotte Stamer

IRS Expands When HFSAs & HRAS May Allow Over-The-Counter Drug Purchases With Drug Cards

January 24, 2011

Recent Internal Revenue Service (IRS) guidance loosens the conditions under which health flexible spending account (HFSA) and health reimbursement accounts may permit participants to use debit cards to purchase over-the-counter medicines or drugs after January 15, 2011. Under Internal Revenue Code rules amended by the Affordable Care Act, drug card and other over-the-counter prescription drug purchases must meet new requirements to qualify for reimbursement by a HFSA or HRA. HFSA and HRA sponsors and administrators wishing to allow participants to use debt cards to purchase over-the-counter drugs must ensure that their arrangements comply with this updated guidance. Sponsors and administrators that are unable or unwilling to meet the conditions established under the updated rules for allowing debt card reimbursement of over-the-counter drugs should act quickly to confirm that all relevant plan documents, procedures and communications clearly forbid reimbursement of over-the-counter medicines and drugs to the extent required by the updated rules.

IRS Notice 2011-5 modifies IRS guidance providing that HFSA and HRA debit cards generally could not be used after January 15, 2011 to purchase over-the-counter medicines or drugs after January 15, 2011, except with respect to “90 percent pharmacies.” previously announced in Notice 2010-59

Under the new rules announced in Notice 2011-5, after January 15, 2011, the IRS has expanded the circumstances under which HFSA and HRA debit cards may continue to be used to purchase over-the-counter medicines or drugs depends on where and how they are purchased. Different conditions must be met if the over-the-counter drug is purchased with a drug card from a vendor that under IRS rules:

Is a “90-percent pharmacy;”
Has a “health care related Merchant Code;
Is a non-health care merchant that has a pharmacy, or that sells prescription drugs via mail order or the web.

Where the applicable requirements established for each of these types of vendors is met, Notice 2011-5 permits HFSAs and HRAs to continue to allow participants to purchase over-the-counter drugs using debit cards after January 15, 2011. In contrast, if the vendor is not one of these types of vendors or is a listed vendor but the applicable requirements for allowing a debit card purchase of an over-the-counter medicine for that type of vendor are not met, HFSA and HRA debit cards may not be used to purchase over-the-counter medicines or drugs after January 15, 2011.

For More Information Or Assistance

If you need assistance evaluating or updating your HSFA, HRA or other health and cafeteria plans in response to these new rules or auditing or assessing, updating or defending other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press, Inc.™

Comments Off on IRS Expands When HFSAs & HRAS May Allow Over-The-Counter Drug Purchases With Drug Cards | 105(h), Cafeteria Plans, Employee Benefits, Employers, ERISA, Health Plans, Human Resources, Insurance, Patient Protection and Affordable Care Act, Tax | Tagged: 105, 106, 126, Affordable Care Act, cafeteria plan, drug card, health flexible spending account, Health Plans, HFSA, HRA, over-the-counter | Permalink
Posted by Cynthia Marcotte Stamer

IRS, HHS & DOL To Delay Enforcement of New Insured Group Health Plan Non-Discrimination Rules Pending Guidance; Seek Public Input on Rules

January 24, 2011

Implications of Announced Reprieve on Possible Participant Suits Unclear

The Internal Revenue Service (IRS), Department of Labor (DOL) and Department of Health & Human Services (HHS) recently announced that the agencies do not plan to enforce new rules that prohibit non-grandfathered insured group health plans from discriminating in favor of highly compensated employees until guidance is published on the workings of certain key elements of these requirements. The IRS announced the relief from enforcement of the new insured group health plan nondiscrimination requirements enacted as part of the Patient Protection and Affordable Care Act (Affordable Care Act) in Notice 2011-1, which was published in the Internal Revenue Bulletin on January 7, 2011. According to Notice 2011-1, the Agencies determined that questions about the construction of certain aspects of the non-discrimination rules made it inappropriate to require insured group health plans to comply or to impose sanctions for their failure to comply with the new non-discrimination rules until the agencies publish certain regulations or other administrative guidance. According to Notice 2011-1, pending the publication of further guidance, the agencies do not intend to enforce sanctions for non-compliance with the new non-discrimination rules and will not require insured group health plan sponsors to file IRS Form 8928 with respect to excise taxes resulting from the incorporation of Public Health Services Act (PHS Act) § 2716 into Internal Revenue Code (Code) § 9815. Its unclear how this guidance will impact possible participant or beneficiary suits to enforce the new rules under Section 512 of the Employee Retirement Income Security Act (ERISA).

New Insured Plan Non-Discrimination Rules

As part of the Affordable Care Act health care reforms, Congress amended the PHS, Code and ERISA to require insured non-grandfathered group health plans to satisfy non-discrimination rules like those applicable to self-insured group health plans under Code § 105(h). Unlike the taxation of highly compensated participants that generally results from a discriminatory self-insured group health plan, however, the Affordable Care Act provides for potentially draconian sanctions against an insured group health plan or its sponsor when an insured group health plan violates these non-discrimination requirements.

The Affordable Care Act generally provides that if a non-grandfathered insured employer-sponsored group health plan that discriminates in favor of highly compensated employees in a manner that would violate the non-discrimination requirements of Code § 105(h)(2) in any post-September 22, 2010 plan year, the plan or plan sponsor may face significant excise taxes, civil money penalties, and lawsuits to compel it to provide nondiscriminatory benefits to non-highly compensated participants equivalent to the discriminatory benefits provided to highly compensated participants.

According to Notice 2011-1, the agencies determined from initial public comments that without regulations or other administrative guidance under PSA § 2716, plan sponsors are uncertain how to apply the nondiscrimination provisions. Accordingly, Notice 2011-1 indicates that the agencies decided that their enforcement of the new insured group health plan nondiscrimination rules should be delayed until the publication of that guidance. Notice 2011-1 invites concerned plan sponsors and others to submit comments on a broad range of concerns relating to this guidance. According to Notice 2011-1, the deadline for submission of this input is March 11, 2011.

Implications of Relief For Insured Group Health Plans

While Notice 2011-1 indicates that HHS and DOL also plan to hold off enforcement of the new non-discrimination rules, it is unclear what effect, if any, the relief announced in the Notice will have on the ability of participants and beneficiaries to enforce the requirements by filing civil lawsuits under ERISA. Under ERISA § 512, participants and beneficiaries generally have the ability to sue plans and their fiduciaries for equitable relief to enforce violations of ERISA. As amended by the Affordable Care Act, the new non-discrimination requirements for insured group health plans of ERISA § 715(a)(1) are effective for all post-September 22, 2010 plan years. Accordingly, while insured group health plans and their sponsors still potentially risk participant or beneficiary law suits if their program is discriminatory.

While awaiting further guidance from the agencies, insured and self-insured group health plans, their sponsors and fiduciaries should document their attempt to prudently evaluate and determine their responsibilities under the non-discrimination rules, and other federal laws. In addition, plans, their fiduciaries, sponsors and service providers should begin implementing and administering the data collection and other processes that they are likely to need to test their programs for discrimination and perform other requirements. To encourage the agencies to adopt regulations that are sensitive to the challenges of plan sponsors and plans in meeting these requirements, plan sponsors, fiduciaries, insurers and service providers also should provide input to the agencies and Congressional health care policy leaders about these concerns.

For More Information Or Assistance

If you need assistance submitting comments to the agencies, evaluating or updating your plans in response to these new rules or auditing or assessing, updating or defending other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press, Inc.™

Comments Off on IRS, HHS & DOL To Delay Enforcement of New Insured Group Health Plan Non-Discrimination Rules Pending Guidance; Seek Public Input on Rules | 105(h), Discrimination, Employee Benefits, Employers, ERISA, Health Plans, Human Resources, Insurance, Patient Protection and Affordable Care Act, Tax | Tagged: 105(h)(2), Affordable Care Act, Group Health plans, Health Care Reform, Health Insurance, Health Plans, medical insurance, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Avoiding Post-Holiday Celebration Sexual Harassment & Discrimination Liability

December 29, 2010

With New Years Eve celebrations approaching and the Holiday Season wrapping up, businesses should take some common sense steps to decrease the risk of waking up in 2011 with a liability hangover. Participation of employees and clients in company sponsored and other social celebrations and activities can promote big rewards in relationship development and morale if properly managed. However, the music, food, game playing, toasting with alcohol and other aspects of the celebratory atmosphere at New Years Eve and other parties and social activities heighten the risk that certain employees or other business associates will engage in, or be subject to, risky or other inappropriate behavior that can create liability exposures or other business concerns for your business whether or not company sponsored. Read about other common Holiday Season-related celebration risks and management tips here.

Celebrations Raise Foreseeable Risks

Whether or not company-sponsored, holiday parties and other celebrations where employees celebrate with other employees or clients tend to fuel bad behavior by inviting fraternization, lowering inhibitions and obscuring the line between appropriate and inappropriate social and business behavior. The relaxation of the environment heightens the risk that certain employees or clients will make unwelcome sexual advances, make sexually suggestive or other inappropriate statements, or engage in other actions that expose the business to sexual harassment or other employment discrimination liability. Businesses also should use care to manage other discrimination exposures in the planning of holiday festivities, gift exchanges, and other activities. Businesses also should be vigilant in watching for signs of inappropriate patterns of discrimination in the selection of employees invited to participate in company-connected social events as well as off-duty holiday gatherings sponsored by managers and supervisors. In addition, businesses also should critically review their own plans for possible insensitivity. Business connected holiday parties, communications, gifts and other festivities should be designed to show appropriate sensitivity to religious and other cultural diversity.

To minimize these exposures, businesses should take steps to communicate and reinforce company policies and expectations about sexual harassment, discrimination, fraternization and other conduct viewed as inappropriate by the company and communicating reminders about these policies to employees and business associates during the Holiday Season.

Timely Investigation & Notification

Businesses faced with allegations of discrimination, sexual harassment or other misconduct also should act promptly to investigate any concerns and if necessary, take timely corrective action. Delay in investigation or redress of discrimination or other improprieties can increase the liability exposure of a business presented with a valid complaint and complicate the ability to defend charges that may arise against the business. Additionally, delay also increases the likelihood that a complaining party will contact governmental officials, plaintiff’s lawyers or others outside the corporation in the redress of his concern.

If a report of an accident, act of discrimination or sexual harassment or other liability related event arises, remember to consider as part of your response whether you need to report the event to any insurers or agencies. Injuries occurring at company related functions often qualify as occupational injuries subject to worker’s compensation and occupational safety laws. Likewise, automobile, employment practices liability, and general liability policies often require covered parties to tell the carrier promptly upon receipt of notice of an event or claim that may give rise to coverage, even though the carrier may not be obligated to tender a defense or coverage at that time.

For Help With Investigations, Policy Updates Or Other Needs

If your organization needs help investigating a reported concern, reviewing and updating its policies or assessing, managing or defending these or other labor and employment, compensation or benefit practices, or needs other assistance auditing, updating or defending its human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact management attorney and consultant Cynthia Marcotte Stamer at cstamer@solutionslawyer.net, (468) 767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer helps business manage people, operations and risk. She is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Her experience includes helping management both manage performance and manage legal risk and compliance. While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor, Department of Justice, SEC, Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, and other federal and state regulators. She has counseled and represented businesses and their management on workforce and other internal controls and risk management matters for more than 23 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Helpful Resources & Information

If you found this article of interest, you also may be interested in reviewing other Breaking News, articles and other resources available CynthiaStamer.com or Solutions Law Press articles authored by Ms. Stamer including:

About Solutions Law Press

Comments Off on Avoiding Post-Holiday Celebration Sexual Harassment & Discrimination Liability | ADA, Affirmative Action, Corporate Compliance, Disability Plans, Discrimination, EEOC, Employee Benefits, Employers, Human Resources, Internal Controls, Internal Investigations, Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer

Small Employers Should Weigh If Health Premium Tax Credit Justifies Changing Employee Leasing Arrangements

December 5, 2010

Accessing more affordable health care coverage often is a major driver behind the decision of many small businesses to enter into employee leasing arrangements. Many of these small businesses should consider if changing existing employee leasing practices makes sense to avoid unknowingly forfeiting or otherwise qualify to claim valuable health insurance premium tax credits under new Internal Revenue Code (Code) § 45R.

Enacted as part of the sweeping health care reforms included in the Patient Protection & Affordable Care Act (Affordable Care Act), Code § 45R generally offers a small employer that meets Code § 45R’s conditions (qualifying employer) to claim a tax credit for premiums that it pays for health insurance coverage to employees if:

The employer had fewer than 25 full-time equivalent employees (“FTEs”) for the tax year;
The average annual wages of its employees for the year must be less than $50,000 per FTE; and
The employer pays premiums to provide employee health care coverage under a “qualifying arrangement.”

For purposes of Code § 45R, “qualifying arrangement” is an arrangement under which an qualifying employer pays premiums for each employee enrolled in health insurance coverage offered by the employer in an amount equal to a uniform percentage (not less than 50 percent) of the premium cost of the coverage.

An analysis of an advance copy of Internal Revenue Service (IRS) Notice 2010-82, scheduled for official publication on December 20, 2010, reveals that a small business that leases rather than employs directly workers gives up the ability to claim a Code § 45R tax credit for amounts paid toward health insurance premiums charged for leased employees when the leasing organization employs the worker even though the business could have claimed those amounts if it employed the worker and paid the premiums directly.

According to Notice 2010-82, leased employees as defined in Code § 414(n) are counted in computing FTEs and average annual wages of businesses leasing their services (Service Recipient). This means that that the use of leased employees will disqualify the business for the Code § 45R tax credit if its total workforce exceeds 25 FTEs when leased employees are taken into account.

Although Service Recipients must count these leased employees when calculating FTEs, and compensation for purposes of determining if the business is a qualified employer, the IRS says Code § 45R does not allow a Service Recipient to claim the Code §45R credit for health insurance premiums paid by or through a leasing organization for coverage of leased employees. Since leasing organizations usually employ more than 25 FTEs, this means that neither business can claim any credit.

While the IRS won’t let Service Recipients claim credit for health premiums paid by a leasing company, Notice 2010-82 suggests that an otherwise qualifying small business can claim the tax credit for health premiums accessed through a leasing organization or other arrangement when the Service Recipient, and not the leasing organization, employs the workers and pays health premiums for coverage for the worker. Assuming a business otherwise is a qualifying employer, Notice 2010-82 suggests that the business may claim the tax credit for premiums it pays to purchases qualifying health insurance for individuals employed as the common law employee of the business directly to a licensed insurer or to obtain insured coverage from a multiemployer plan that otherwise meets the requirements of Code § 45R.

As with any decision about the use of leased employees, the feasibility and potential costs and benefits of structuring or restructuring the relationship with a worker who otherwise would be leased through a staffing company to claim the Code § 45R tax credit needs to be carefully evaluated before a business acts. Businesses should carefully evaluate both the change in insurance costs, if any, and how the structuring of the relationship will affect other costs and liabilities. Changing the relationship with a worker from employee to leased employee or visa versa can impact unemployment, employee benefit, employment liability, contractual, tort and other costs, obligations and other responsibilities. In some instances, increased health insurance or other costs and liabilities may outweigh the tax benefits that a small business otherwise could get by qualifying for the Code § 45R tax credit. Where the existing or contemplated relationship between business and the leasing organization already creates a co-employment relationship for many legal or financial purposes, however, restructuring the relationship to allow the business to directly employ workers but continue to use the payroll services of and access health coverage and other benefits for the worker under multiple employer benefit plans sponsored by the leasing organization may prove a viable and attractive option. Moreover, as many businesses misunderstand legal risks and benefits of their employee leasing and other contingent workforce relationships, businesses should consult with competent legal counsel within the scope of attorney-client privilege to ensure that they have an accurate understanding of the legal implications of their existing employee leasing arrangements when evaluating these potential costs and benefits to avoid making misinformed decisions.

Employers Urged To Seek Advice To Determine Tax Eligibility, Manage Legal Risks

Given the high cost of health insurance coverage, the Code § 45R credit may offers valuable savings for qualifying small employer. Before providing coverage or estimating tax liabilities in reliance on the expectation of claiming the credit, however, an employer interested in claiming the credit should seek guidance from qualified tax counsel familiar with the Code § 45R rules and guidance as well as other applicable federal mandates impacting employer provided coverage. The clarifications set forth in Notice 2010-82 illustrate that the rules for determining if an employer qualifies to claim a tax credit for health insurance premiums paid for employees under Code § 45R are anything but simple. In addition to meeting these conditions, employers offering or contributing to health coverage for employees can face a broad range of other legal and financial risk if they fail to properly understand and manage the organizational and personal responsibilities that can arise under applicable federal laws. Where it is contemplated that health coverage will be accessed or provided through an employee leasing, staffing or multiple employee plan arrangement, other additional considerations also will apply. Accordingly, small and other businesses that provide health coverage to employees or paying to lease the services of workers from a leasing organization that provides health coverage should review their options with experienced legal counsel within the scope of attorney-client privilege.

For More Information Or Assistance

You can learn more about these and other federal health plan mandates by listening to the recording of the 2010 Health Plan Update Briefing or reviewing other resources available here. If you need help with these or other employee benefit, compensation or employment regulations or other related matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, employee benefit plans, their sponsors, fiduciaries, plan administrators, service providers, consultants, vendors, outsourcers, insurers, financial services providers, governments and others about health and other employee benefit, compensation, employment, insurance and financial services, and a wide range of other performance, legal and operational risk management practices and concerns. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for her work helping clients to design, document, administer and defend health and other employee benefit plans and other related financial and insurance products and to manage risks associated with the offering and administration of these arrangements. Her experience includes extensive work advising and representing employers, plans, plan fiduciaries, trustees, investors, and others about managing and resolving risks relating to fiduciary, contracting and other risks and responsibilities involved in the design, selection and administration of investments for employee benefit plans, and other fiduciary responsibility matters. She also has extensive experience assisting these and other clients to investigate and determine the appropriateness of retirement plan investment selections to comply with ERISA and other fiduciary responsibility rules, as well as to defend challenges to investment offerings or decisions against complaints or actions brought by private plaintiffs, the Labor Department, state and federal securities regulators, insurers and others. A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on employee benefit, compensation and human resources practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent updates by Ms. Stamer about the tax credit on Code §45R or other benefits, compensation or human resources matters including:

If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. To unsubscribe, send an e-mail with “Unsubscribe” in the subject here. For important information concerning this communication click here.

Comments Off on Small Employers Should Weigh If Health Premium Tax Credit Justifies Changing Employee Leasing Arrangements | Employee Benefits, Employers, ERISA, Health Plans, Human Resources, Insurance, Tax, Tax Credit, Tax Qualification | Tagged: 45R, Affordable Care Act, contingent workforce, employee leasing, health costs, Health Plan, health premium, small employer, tax credit | Permalink
Posted by Cynthia Marcotte Stamer

Free 12/6/10 ABA RPTE Employee Benefit Groups Study Group Conference Call Examines PBGC Enforcement of Downsizing Liability, Updated Reporting & Other PBGC Developments

November 19, 2010

The American Bar Association RPTE Employee Benefits & Other Compensation Arrangements Group invites members and other interested legal counsel and benefit practitioners to catch up on the latest Pension Benefit Guarantee Corporation (PBGC) enforcement and regulatory developments by participating in its next regular one hour Study Group Conference Call on Monday, December 6, 2010, at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific. There is no charge to take part in the Study Group Conference call.

During the call the Plan Transactions and Terminations Committee, chaired by Harold Ashner of Keightley & Ashner LLP (former PBGC Assistant General Counsel for Legislation and Regulations) will discuss recent PBGC reporting, monitoring, and enforcement developments, with a focus on PBGC’s pursuit of “downsizing liability” under ERISA Section 4062(e) and on how to deal with this liability effectively.

The dial-in information for the call is:

Phone Number: 866/646-6488

Participant Pass code: 7255887619

If your client or organization maintains a PBGC-covered pension plan, you need to understand the various circumstances that may lead PBGC to pursue a claim for as much as the plan’s full termination-based underfunding — even though the pension plan remains ongoing with no intention to terminate it. These circumstances go well beyond a traditional plant closing, and may include a going-concern asset sale, a stock sale, a transfer of operations to another facility, a temporary suspension of operations, or the discontinuance of one operation with all other operations continuing.

Topics covered will include PBGC reporting requirements, triggers for 4062(e) liability, issues relating to how the liability is calculated, and options for settling the liability. Come prepared with your questions!

To receive handout materials, please RSVP, email Committee Vice Chair Robert Miller (rmiller@calfee.com) to let the Committee know you plan to attend. If you have questions you’d like to have discussed on the call, you can include those questions along with your RSVP. There is no charge for participating.

Membership In RPTE Employee Benefits & Other Compensation Group Offers Many Benefits

Chaired by Cynthia Marcotte Stamer, membership in the Employee Benefits & Other Compensation Arrangements Group offers attorneys and others employee benefit professionals a broad range of opportunities to develop and expand their employee benefit knowledge, provide leadership and input on evolving employee benefit policies and practices, to network and collaborate with fellow practitioners, and to participate in a broad range of other activities designed to advance employee benefit knowledge and professionalism. The Group focuses on all aspects of employee benefit plans and other compensation arrangements, including issues relating to qualified plans, medical and other welfare plans and nonqualified deferred compensation plans, the fiduciary responsibilities of plan trustees, plan administrators and other plan fiduciaries, plan administration, plan transactions, plan terminations, and litigation involving this area of practice. If you would like more information about the Group or getting involved in its activities, please see RPTE Website orcontact its Chair, Cynthia Marcotte Stamer, at cstamer@solutionslawyer.net or (469) 767-8872.

About Ms. Stamer

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, health and other employee benefit plans, their sponsors, fiduciaries and plan administrators, consultants, vendors, outsourcers, insurers, governments and others about employment, employee benefit, compensation, and a wide range of other performance, legal and operational risk management practices and concerns. As a part of this work, Ms. Stamer has worked extensively with clients to manage risks and defend practices under a wide range of laws and circumstances. Her experience includes extensive work advising and representing employers, plans, plan fiduciaries, trustees, investors, and others about managing and resolving risks relating to distressed pension and other employee benefit plans, downsizing and other workforce reengineering and other similar matters. A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on GINA and other employment and employee benefit risk management practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. To unsubscribe, send an e-mail with “Unsubscribe” in the subject here. For important information concerning this communication click here.

Comments Off on Free 12/6/10 ABA RPTE Employee Benefit Groups Study Group Conference Call Examines PBGC Enforcement of Downsizing Liability, Updated Reporting & Other PBGC Developments | Employee Benefits, Employers, Retirement Plans | Tagged: Bankruptcy, Distressed Company, Employee Benefits, PBGC, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify

November 17, 2010

A change to regulations implementing the “grandfathered plan” rules of the Patient Protection and Affordable Care Act (Affordable Care Act) announced yesterday has opened up the possibility that some insured group health plans changing insurers may continue to qualify as “grandfathered health plans” exempted from certain health care reform mandates. Because policy or insurer changes can create challenges in meeting other conditions required to get grandfathered plan status, however, sponsors and administrators of insured group health plans should prepare to timely comply with all applicable Affordable Care Act mandates unless they have verified their ability to prove that their program meets all requirements to qualify for grandfathered plan status will need to confirm that with or without the insurance-related change.

The Affordable Care Act generally requires that insured and self-insured group health plans and group and individual health insurance policies comply with many new federal mandates beginning with the first day of the plan or contract year that begins after September 22, 2010. If a group health plan or health insurance policy existed on March 23, 2010 and otherwise qualifies as a “grandfathered health plan,” however, it may qualify as exempted or for a delayed effective date from some but not these new mandates. By shaping the mandates applicable to group health plans, the grandfather rules will impact both the cost and the design of affected group health plans.

Original Rule About Insurance Changes

Interim Final Regulations issued by jointly by the Departments of Labor, Health & Human Services and Treasury (Agencies) last June established a series of detailed requirements that a group health plan or health insurance policy must meet to qualify as a grandfathered health plan or policy beyond merely existing on March 23, 2010. As part of these requirements, the Interim Final Regulations identified a number of changes and other events that would disqualify a group health plan or insurance policy as a grandfathered plan.

In the case of insured group health plans, changing insurance policies or insurers was not an allowable change for a plan desiring to qualify as grandfathered. As originally interpreted by the Agencies in the Interim Final Regulations, self-insured group health plans were permitted to change third-party administrators without forfeiting grandfathered health plan status as long as the change did not otherwise change the plan terms or design in a way that would disqualify the plan for grandfathered status. In contrast, however, the Agencies original interpretation stated that entering into a new policy, certificate, or contract of insurance for an insured non-collectively bargained group health plan in and of itself would disqualify the group health plan as a grandfathered health plan. The modified rule published on November 16, 2010 (Amended Rule) eliminates this distinction in response to public comments received since its publication of the original guidance.

Amended Rule About Insurance Changes

Under the Amended Rule, the same standards now will determine the effect of a change in vendor or contract on the grandfathered health plan status of a group health plan whether the plan is insured or self-insured. Accordingly, with respect to changes in group health coverage contracts, the Interim Regulations, as modified by the Amended Rule, now provides where insured or self-insured, a group health plan (including a group health plan that was self-insured on March 23, 2010) or its sponsor that enters into a enters into a new policy, certificate, or contract of insurance after March 23, 2010 that is effective before November 15, 2010 generally will cease to be a grandfathered health plan unless the plan meets certain specified conditions. The group health plan must provide to the new health insurance issuer (and the new health insurance issuer must require) documentation of plan terms (including benefits, cost sharing, employer contributions, and annual limits) under the prior health coverage sufficient to demonstrate that except for the contract change, the group health plan otherwise has not been modified or experienced any other event that would otherwise result in its disqualification for grandfathered health plan status under the Interim Final Regulations as modified by the Amended Rule.

As currently drafted, the relief provided in the Amended Rule does not expressly apply to a change in insurer or insurance contract made by a non-collectively bargained group health plan after November 14, 2010 regardless of whether the change in made before deadline for the group health plan to begin complying with the Affordable Care Act (i.e., the first day of the first plan year beginning after March 22, 2010). Additionally, the relief set forth in the Amended Rule does not apply to individual health insurance policies. Where insured coverage is provided not through a group health plan but instead in the individual market, a change in issuer still remains a change in the health insurance coverage after March 22, 2010 that disqualifies the new individual policy, certificate, or contract of insurance for status as a grandfathered health plan for purposes of the Affordable Care Act.

For a more detailed discussion of the grandfathered plan rules and the changes made this week, see here.

For More Information Or Assistance

If you need help reviewing or responding to the grandfather regulations or other health benefit regulations or other related matters please contact Cynthia Marcotte Stamer here or (469) 767-8872.

About Ms. Stamer

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, health and other employee benefit plans, their sponsors, fiduciaries and plan administrators, consultants, vendors, outsourcers, insurers, governments and others about employment, employee benefit, compensation, and a wide range of other performance, legal and operational risk management practices and concerns. As a part of this work, Ms. Stamer has worked extensively with clients on health care reforms and regulations under the Affordable Care Act and other federal and state laws. A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on GINA and other employment and employee benefit risk management practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

Comments Off on Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify | Affordable Care Act, Claims Administration, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Insurance, Mental Health, Mental Health Parity, Patient Protection and Affordable Care Act, Preemption, Reporting & Disclosure, Tax | Tagged: Affordable Health Choices Act, essential benefits, Health Plans, Patient Protection and Affordable Care Act | Permalink
Posted by Cynthia Marcotte Stamer

Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final GINA Regulations

November 9, 2010

The U.S. Equal Employment Opportunity Commission (EEOC) today issued final regulations (“Final Regulations”) implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). Employers, employment agencies, labor organizations, joint labor-management committees, and others impacted by GINA should carefully review and update their hiring and background check, sick and family leave, disability accommodation, and other existing policies and practices to comply with the updated guidance provided by the Final Regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure

Effective since November 21, 2009, Title II of GINA prohibits employers of 15 or more employees from discriminating in employment based on genetic information and restricts the acquisition and disclosure of genetic information by covered employers and certain other parties.

Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Under GINA, employees and individuals can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.

Meanwhile, Title I of GINA prohibits group health plans and health insurers from discriminating in eligibility or premium based on genetic information and requires these plans and insurers to protect the privacy of genetic information (Title I) for plan years beginning after May 20, 2009.

When assessing potential GINA risks and exposures, employers and others covered by its provisions must exercise care not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to collecting or using this information. Many employers will be surprised by the breadth of the depth of “genetic information.” Because of GINA’s broad definition of “genetic information,” its provisions create potential liability concerns for a surprisingly wide range of employment and health plan practices.

The Final Regulations published today implement the employment discrimination rules of GINA Title II. The EEOC previously published proposed regulations interpreting Title II of GINA in March, 2009. Concurrent with its release of the Final Regulations, the Commission also issued two question-and-answer documents on the final GINA regulations. For links to today’s guidance and more details, see here.

Failing to properly address GINA compliance could expose employers to substantial risk. Violation of the employment provisions of Title II subjects an employer to potentially significant civil judgments like those that generally are available for race, sex, and other federal employment discrimination claims covered by the Civil Rights Act. Accordingly, employers and others who have not already done so should act quickly to review and update their policies and procedures to manage their new compliance and liability exposures under GINA. Employers and others covered by GINA also should assess their leave and other records and practices for data that could be considered genetic information and take appropriate steps to safeguard this information to comply with the confidentiality, nondiscrimination and anti-retaliation rules of GINA, the Americans with Disabilities Act and other applicable laws.

For More Information Or Assistance

If you need assistance evaluating or defending existing or proposed practices under GINA or with other workforce, employee benefit, compensation, internal controls or risk management practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

About Ms. Stamer

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, health and other employee benefit plans, their sponsors, fiduciaries and plan administrators, consultants, vendors, outsourcers, insurers, governments and others about employment, employee benefit, compensation, and a wide range of other performance, legal and operational risk management practices and concerns. As a part of this work, Ms. Stamer has worked extensively with client to manage risks and defend practices under GINA, the ADA and a wide range of employment discrimination, privacy and other laws. A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on GINA and other employment and employee benefit risk management practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. To unsubscribe, send an e-mail with “Unsubscribe” in the subject here. For important information concerning this communication click here.

Comments Off on Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final GINA Regulations | Disability, Discrimination, EEOC, Employee Benefits, Employers, GINA, Human Resources, Privacy, Risk Management, Union | Tagged: ADA, EEOC, Emloyment Discrimination, Employment, GINA, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

DOL Proposes To Expand Investment Related Services Giving Rise to ERISA Fiduciary Status As Investment Fiduciary

October 21, 2010

The U.S. Department of Labor Employee Benefit Security Administration (EBSA) today published a Proposed Regulation that would expand the circumstances when individuals giving investment advice to an employee benefit or employee benefit plan or individual retirement account participant for purposes of the fiduciary definition of Employee Retirement Income Security Act (ERISA) § 3(21) and the prohibited transaction provisions of Internal Revenue Code (Code) § 4975(e)(3)(B).

If adopted as proposed, the Proposed Regulation would broaden the persons considered fiduciaries based on their provision of investment related advice or services to plans, participants or beneficiaries. Additionally, the restatement of these standards also likely will necessitate that both plan fiduciaries and providers of these services tighten agreements and other practices and procedures governing the engagement and delivery of services in order to maintain or protect desired allocations of fiduciary responsibility over these activities.

The deadline for individuals and organizations to comment on the proposed rule is January 19, 2011. Plan sponsors, fiduciaries, service providers and others concerned about the potential impact of the proposed changes should assess the potential implications of the rule and timely submit any comments or concern to the EBSA by this date.

To learn more about the Proposed Rule and its implications, see the more detailed article here.

If your organization needs assistance to evaluate or respond to the Proposed Regulation or reviewing, updating, administering or defending your employee benefit, human resources, compensation or internal control and risk management procedures, documentation, or policies or procedures, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Ms. Stamer

Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Cynthia Marcotte Stamer is nationally recognized for her extensive work helping clients develop, implement and defend innovative, practical, legally defensible solutions to their particular health and other employee benefit, employment and insurance needs. Ms. Stamer has more than 23 years experience advising and representing employer, association and other plan sponsors, health and other employee benefit plans, their fiduciaries, plan administrators, consultants, vendors, outsourcers, insurers, governments and others about health plan and product design; administration, legal and operational risk management, vendor and fiduciary credentialing, managed care and vendor contracting, cost-containment, documentation, public policy, enforcement, privacy, technology, litigation and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices for the ABA, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

About Solutions Law Press

Comments Off on DOL Proposes To Expand Investment Related Services Giving Rise to ERISA Fiduciary Status As Investment Fiduciary | Corporate Compliance, Defined Benefit Plans, Defined Contribution Plans, Disability Plans, Employee Benefits, Employers, ERISA, Excise Tax, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Retirement Plans, Risk Management, Tax, Tax Qualification | Permalink
Posted by Cynthia Marcotte Stamer

EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination

October 19, 2010

Two new Equal Employment Opportunity Commission (EEOC) lawsuits filed against a Texas concrete manufacturer and Los Angeles garment manufacturer highlight the need for U.S. employers with more than 14 employees to consider and prepare to defend against potential disability discrimination exposures when dealing with medical leave requests by employees who might be considered disabled under the Americans with Disabilities Act (ADA) as well as other expanding ADA enforcement exposures. Read more.

The lawsuits reflect that employers considering an employee’s request for medical leave should evaluate if the ADA requires the employer to grant the requested medical leave in addition to considering any otherwise applicable leave entitlement the requesting employee qualifies for under the Family & Medical Leave Act, state leave laws or otherwise applicable employer policies. As a result, all employers of 15 or more employees generally should review and tighten their policies and processes for evaluating requests for medical leave to minimize their exposure to claims that the denial of a requested medical leave violated the ADA.

Furthermore, employers also should consider the advisability of other more generalized policy or procedure updates to strengthen their defensibility against potential ADA and other disability claims generally in light of stepped up enforcement by the EEOC and private plaintiffs changes to the ADA made by the ADA Amendments Act of 2008 (ADAAA) that makes it easier for employees to win ADA suits. To mitigate growing exposures to these claims, employers covered by the ADA and/or the Rehabilitation Act of 1973 should review and strengthen their existing hiring and other employment practices and documentation to strengthen their defensibility in the face of these new challenges.

If you need assistance responding an employee’s request for medical leave or other accommodations, or otherwise to review, update or defend your disability discrimination or other employment, compensation, benefits or other workforce, internal controls or risk management practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Ms. Stamer

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. When working with clients, Ms. Stamer combines a client-oriented approach with an extensive practical and technical knowledge of human resources, insurance, employee benefits, health care, privacy & security, corporate compliance and other legal matters to assist clients to formulate and administer pragmatic operational and risk management strategies and effective internal controls taking into account the financial, operational, political, legal and other realities confronting the client.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker who serves in the leadership of many professional and civil organizations. She regularly conducts management and other training on a wide range of workforce management, employee benefits, compensation, risk management internal controls, and other related matters for businesses, trade and professional associations and others. Her insights on human resources risk management matters appear in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. To request Ms. Stamer’s assistance, for information about arranging for Ms. Stamer to provide workshops and other training, to access other publications or resources or for more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer at via telephone at 469.767.8872 or via e-mail at cstamer@solutionslawyer.net or see CynthiaStamer.com.

If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. To unsubscribe, send an e-mail with “Unsubscribe” in the subject here. For important information concerning this communication see here.

Comments Off on EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination | Absenteeism, ADA, Disability, Disability, Disability Plans, Discrimination, Employee Benefits, Employers, family leave, Human Resources, Leave, medical leave, Rehabilitation Act | Tagged: absence management, Absenteeism, ADA, Disability, Disability Discrimination, Discrimination, EEOC, Employer, FMLA, medical leave, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

Annual Benefit Limitation Waiver Guidance Offers Fast Acting Employers, Insurers Expanded Options To Meet Affordable Care Act Health Plan Rule

October 3, 2010

Many employers and insurers that act quickly may qualify for a temporary reprieve from the obligation to redesign their group health plans and health insurance policies to comply with the annual benefit limitations on health plan benefits imposed under the Patient Protection and Affordable Care Act (Affordable Care Act) applicable to most health insurance plans and policies beginning with post-September 22, 2010 plan years.

On September 3, 2010, the U.S. Department of Health & Human Service published rules that enable qualifying employers and insurers to obtain a waiver of the application of ACA’s annual limits to their health plan for 2011 (Annual Limit Waiver). In addition to the Annual Limit Waiver relief, HHS on October 1, 2010 also announced plans in the near future to publish additional guidance to provide some relief for mini-meds and certain other plans from the medical loss ratio rules of ACA. Plan sponsors and insurers struggling to redesign their benefit programs to meet ACA’s annual limit and medical loss ration mandates for their 2011 plan year should act quickly to evaluate and where applicable take advantage of the added flexibility that this new guidance may afford regarding their 2011 plan design.

With compliance deadlines impending, however, plan sponsors and insurers must act quickly to leverage these opportunities and make other necessary arrangements to update their health programs to meet new federal requirements. When deciding how to respond to ACA and other new federal health plan rules, plan sponsors and insurers who maintain plans that can qualify as grandfathered plans under ACA should carefully consider all alternatives before deciding to forego this status. Many plan sponsors and insurers feel soaring health coverage costs require that they make cost-saving plan design changes that preclude them from maintaining a grandfathered plan. Creative use of the new Annual Benefit Limitation Waiver, grandfathered plan and other guidance may help mitigate the cost and other challenges of complying with these new federal rules. Read more details.

If your organization needs assistance to apply for an ACA Annual Limit Waiver, reviewing or updating your heath care program design, documentation, policies or procedures in response to ACA or other requirements or with other employee benefit, insurance or human resources matters, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Ms. Stamer

About Solutions Law Press

Comments Off on Annual Benefit Limitation Waiver Guidance Offers Fast Acting Employers, Insurers Expanded Options To Meet Affordable Care Act Health Plan Rule | Affordable Care Act, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources | Tagged: Affordable Care Act, annual dollar limits, grandfathered plan, Health Care Reform, Health Plans, medical loss ratio, mini-med | Permalink
Posted by Cynthia Marcotte Stamer

New Insured Group Health Plan Non-Discrimination Rules Create Significant Liability For Employers & Insurers; Prompt IRS Also To Review Self-Insured Group Health Plan Rules

September 20, 2010

Non-grandfathered insured group health plans that impermissibly discriminate in favor of highly compensated employees in post-September 22, 2010 plan years face significant liability under new rules enacted as part of the Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act (the Reconciliation Act), Pub. L. 111-152 (collectively the “Affordable Care Act”). Given these significant new liability exposures, employers and insurers that presently sponsor insured group health plans that discriminate in favor of highly compensated employees must quickly redesign their programs to comply with the Affordable Care Act’s new nondiscrimination rules unless the program qualifies as exempt from the new rules as a “grandfathered plan.”

Concurrently, sponsors of insured and self-insured group health plans alike will want to keep a close eye out for anticipated changes in the Internal Revenue Service’s (IRS’) regulations interpreting the non-discrimination rules under Internal Revenue Code section 105. In connection with the implementation of the Affordable Care Act’s new nondiscrimination requirements for insured group health plans, the Internal Revenue Service has announced that it both is evaluating the regulatory guidance needed regarding the new rules, as well as reviewing the adequacy of its guidance concerning the self-insured group health plan nondiscrimination requirements under Code section 105(h). Employers and others concerned about the content of these new regulations should consider sharing their input with the IRS in response to the invitation for public comment set forth in Notice 2010-63, which is scheduled for official publication in Internal Revenue Bulletin 2010-41 on October 12. Read more here.

Because of the significant liability exposures that result if an insured group health plan violates the new Affordable Care Act nondiscrimination rules, employers and insurers should act quickly to review all insured group health plan arrangements for possible prohibited discrimination in favor of highly compensated employees under the new Affordable Care Act rules. Unless the program will qualify as a grandfathered plan for purposes of the Affordable Care Act, employers or other sponsors, insurers, and administrators of these programs should take prompt action either to terminate or redesign the program as necessary to avoid violation of the new rule before the first post-September 22, 2010 plan year begins. With prompt action, it may be possible to preserve the ability to continue to maintain certain discriminatory insured group health plans by demonstrating that the arrangement existed before March 23, 2010 and otherwise qualifies as a grandfathered plan for purposes of the Affordable Care Act. Where it is not possible to demonstrate that the plan qualifies as an exempt grandfathered plan, however, employers will want to take quick action to appropriately terminate or amend the arrangement and to timely communicate these changes to affected participants and beneficiaries.

For Assistance or More Information

If your organization needs assistance reviewing or updating your heath care program design, documentation, policies or procedures in response to the Affordable Care Act or other requirements or with other employee benefit, insurance or human resources matters, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises employers, health and other employee benefit plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Comments Off on New Insured Group Health Plan Non-Discrimination Rules Create Significant Liability For Employers & Insurers; Prompt IRS Also To Review Self-Insured Group Health Plan Rules | Employee Benefits, ERISA, Health Plans, Human Resources, Labor Management Relations | Tagged: Affordablel Care Act, Health Plans, highly compensated employees, Insurers | Permalink
Posted by Cynthia Marcotte Stamer

Affordable Care Act’s Health Plan External & Internal Review Safe Harbor & Other Regulations Require Health Plan Updates

August 26, 2010

The Patient Protection & Affordable Care Act (Affordable Care Act) generally mandates that all group and individual health plans and policies comply with these mandates no later than the first plan or policy year beginning after September 22, 2010 unless the plan or policy qualifies as a “grandfathered plan” under the Affordable Care Act. Employer and other health plan sponsors, insurers, fiduciaries and administrators of all federally-regulated employment-based health plans should move quickly to update plan documents, administrative procedures and agreements, decisional criteria, investigation and decision-making documentation, and claims and appeals-related notification and other communications to comply with a series of new Federal guidance governing health plan claims and appeals published in the Federal Register on July 23, 2010 as further supplemented by additional “safe harbor” external review procedures published in the Federal Register today (August 26, 2010) (collectively the ACA Appeals Rules”).

Although the ACA Appeals Rules technically apply only to non-grandfathered plans, Agency commentary about existing Labor Department health plan claims and appeals procedures published along with the ACA Appeals rules sends a strong signal that the adequacy of all health plan claims and appeals procedures is warranted. As many health plan sponsors and health insurers are deciding that compliance with Affordable Care Act mandates is more cost effective than meeting the conditions that federal regulations require for a health plan to maintain grandfathered plan status, most group health plans and policies will need to be updated to comply with these new rules quickly. Even if a plan qualifies as a grandfathered plan, however, comments contained included the preamble to the July 23, 2010 guidance and recent court decisions send a strong signal that a review and update of existing claims and appeals procedures and practices is warranted. Read more.

For assistance to review and update your health or other employee benefit claims and appeals or other terms, processes, notices and communication or other processes and procedures, please contact the author of this update, attorney Cynthia Marcotte Stamer at (469) 767-8872 or cstamer@solutionslawyer.net.

Learn More About Affordable Care Act Mandates: Order Recording of August 24 “2010 Health Plan Update”

Details of recently released guidance about federal health plan rules applicable to employment-based health plans under the Affordable Care Act and other federal health plan regulations were among the topics covered in a “2010 Health Plan Update” internet broadcast briefing on Tuesday, August 24 2010. For more information about this briefing, see here. If you are interested in purchasing a recording of this briefing, e-mail here.

For Assistance or More Information

If your organization needs assistance updating your heath care program documentation, policies or procedures in response to these or other requirements or with other employee benefit, insurance or human resources matters, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Comments Off on Affordable Care Act’s Health Plan External & Internal Review Safe Harbor & Other Regulations Require Health Plan Updates | Affordable Care Act, Claims Administration, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Internal Investigations, Patient Empowerment, Patient Protection and Affordable Care Act, Preemption, Public Policy, Risk Management | Tagged: Affordable Care Act, Appeals, appeals procedures, Claims, Claims Procedures, ERISA, external review, Health Insurance, Health Plans, Insurance, internal review, self-insured | Permalink
Posted by Cynthia Marcotte Stamer

Assess Your Health Plan Compliance 8/24: Register Now!

August 12, 2010

Get a Health Plan Compliance Checkup

Learn What You Must Do Now To Meet Key 2010/2011
Affordable Care Act & Other Health Plan Compliance Deadlines

2010 Health Plan Update

A Solutions Law Press Live Internet Broadcast Briefing

August 24, 2010

10:00 A.M.-12:30 P.M. Eastern | 11:00 A.M.-1:30 P.M. Central | 9:00 A.M-11:30 A.M. Pacific

Earn 2 Hours of Texas Insurance Continuing Education Credit, WorldAtWork or HRCI Credit!

Solutions Law Press invites you to catch up on the latest guidance on new group health plan mandates imposed under the Patient Protection and Affordable Care Act (Affordable Care Act) and other federal health plan regulations by participating in the “2010 Health Plan Update” briefing on Tuesday, August 24, 2010. The briefing will be held via a live internet broadcast from 11:00 to 1:30 P.M. Central Time. Registrants can elect to participate in person or watch via the Internet for a registration fee of $150.00. To register click here.

Affordable Care Act Requires Prompt Action By Group Health Plans, Employee Sponsors, Fiduciaries, Administrators, & Insurers

Health benefit costs and legal risks continue to grow for U.S. businesses. The Affordable Care Act and other impending federal health plan regulatory changes will require employment-based group health plans, their employer and other plan sponsors, insurers plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility. All employer and other group health plan sponsors, fiduciaries, insurers and administrators must act quickly to update their health plan documents, communications, insurance and vendor agreements and practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the next plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years. Many plan sponsors also may need to act quickly to cancel or revise plan design or vendor changes planned or already implemented since March 23, 2010 to position their health plan to qualify for grandfather status. Quick action also may be needed to qualify for small employer tax credits, retiree medical subsidies or other benefits.

August 24 Briefing Provides Key Information

The August 24, 2010 “2010 Health Plan Update” briefing will cover the latest guidance on Affordable Care Act and other federal health plan regulatory changes impacting employment-based group health plans and their sponsors for plan years beginning between September 23, 2010 and September 22, 2011 and other key information to help employers, group health plans, insurers, plan administrators, fiduciaries, broker and others working with these plans to understand and respond to these new requirements including:

How to qualify your health plan as a grandfathered plan under the Affordable Care Act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage & wellness program rules under Affordable Care Act, GINA, ADA & other federal regulations
Updated dependent child eligibility, pre-existing condition & other dependent coverage rules for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, FMLA, Michelle’s Law, HIPAA & other regulations
Mental health & substance abuse, provider choice & other benefit mandates under new Affordable Care Act, Mental Health Parity & other federal rules
New HIPAA Privacy Rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Cafeteria plan implications
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

About The Presenter

The program will be conducted by attorney Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her more than 23 years of work, publications and presentations on health plan and other employee benefit, health care and insurance matters. Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises group health plans, insurers, employer and other plan sponsors, plan fiduciaries, plan administrators and vendors, and others about health plan design, administration, defense, contracting and related legal compliance, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes and speaks extensively on these and other health and managed care program concerns and practices. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or publications, contact Ms. Stamer at (469) 767-8872 or via e-mail here or see here. Texas Insurance Department Continuing Education Provider Number 3544.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other updates, consultation, training and education, tools, and other resources for businesses on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press™ resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press™ events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

Solutions Law Press ™ Thanks Our Sponsors

Benefit HR Productions is a producer of enrollment and employee benefit and human resources orientation and on boarding enrollment and other human resources video communications for employers and their service providers. For more information, contact Bill at (972) 267-8410.

NFC offers supplemental insurance benefits to individuals and families that pay benefits directly to the insured and offers cafeteria plan administration services at no cost to employers including a Debit Card feature. To learn more about NFC cafeteria plan services or its supplemental insurance products contact Art Mueller at National Family Care Life Insurance Company, 13530 Inwood Rd, Dallas, Tx 75244. 800-527-0996. acmnfc@flash.net

A limited number of participants on a space available basis will have the opportunity to participate in the briefing as a member of the live studio audio audience in Plano, Texas. Interested persons should e-mail support@solutionslawyer.net.
Discounts available for groups registering three or more participants. E-mail support@solutionslawyer.net.

Comments Off on Assess Your Health Plan Compliance 8/24: Register Now! | CHIP, Claims Administration, COBRA, Employee Benefits, Employers, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Plans, Human Resources, Income Tax, Mental Health, Mental Health Parity, Prescription Drugs, Tax, Wellness, Wellness Programs | Tagged: ADA, Affordable Care Act, Appeals, Claims Regulations, COBRA, ERISA, FMLA, GINA, Health Plans, HIPAA, Mental Health Parity, self-insurance, Wellness Programs | Permalink
Posted by Cynthia Marcotte Stamer

New Regulations & Court Decisions Require Health Plan Claims & Appeal Updates & Strengthening

August 8, 2010

Register Now For 8/24 Health Plan Update Briefing

Employer and other health plan sponsors, insurers, fiduciaries and administrators should move quickly to review, update and tighten their plan documents, administrative procedures and agreements, decisional criteria, investigation and decision-making documentation, and claims and appeals-related notification and other communications in response to new requirements and guidance in recently proposed Labor Department Regulations and the increased willingness of Federal courts to scrutinize and overturn benefit denials.

New regulations (ACA Appeals Rules) implementing tighter health plan claims and appeals rules enacted under the Patient Protection & Affordable Care Act (Affordable Care Act) are the latest in a wave of new Affordable Care Act and other federal regulations that require quick updates to employment-based health plans.

The new ACA Appeals rules published July 23, 2010 primarily focus on additional claims and appeals standards that group health plans not “grandfathered” under the Affordable Care Act must meet by the first plan year beginning after September 22, 2010. However, clarifications of the Labor Department’s interpretation of existing claims and appeals rules for employment-based group health plans shared with the ACA Appeals Rules make clear grandfathered plans also have work to do. Therefore, group health plan sponsors, insurers, fiduciaries and administrators of all group health plans should review and tighten their claims and appeals procedures in response to the guidance recently published in connection with the ACA Appeals Rules.

Beyond responding to the Labor Department’s ACA Appeals Rules, employer and other health and employee benefit plan sponsors, insurers, fiduciaries and administrators also should consider tightening and strengthening their claims and appeals decision-making, documentation and notice processes and procedures to reduce the risk that the courts will overturn benefit denials to guard against the growing willingness of federal courts to overturn benefit denials based upon their findings of process, documentation, notification, conflict of interest or other deficiencies that make the decision “arbitrary or capricious” or otherwise unsustainable under ERISA. Read more.

Many Other Changing Federal Rules Require Other Plan Updates

Changing claims and appeals standards are only a small part of the sweeping range of developments that employer and other plan sponsors, administrators, and fiduciaries of group health plans must deal with as the struggle to design and administer legally defensible plans this year.

The new ACA Appeals Rules are the latest in a wave of new Affordable Care Act and other federal regulations that require quick action by employment based health plans, their employer and other sponsors, fiduciaries, administrators and insurers. Regulations issued in previous weeks define when health plans and health insurance policies qualify as “grandfathered” under the Affordable Care Act and interpret and implement many other federal health plan rule changes enacted by the Affordable Care Act.

All employer and other group health plan sponsors, fiduciaries, insurers and administrators should be prepared to act quickly to update their health plan documents, communications, insurance and vendor agreements and other practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years. Many plan sponsors also may need to act quickly to cancel or revise certain design or vendor changes planned or already implemented since March 23, 2010 to position their health plan to qualify for grandfather status. Quick action also may be needed to preserve options to claim small employer tax credits, retiree medical subsidies or other opportunities.

In addition to responding to these Affordable Care Act changes, most group health plans also will require updates in response to other federal health plan rule changes beyond those enacted under the Affordable Care Act. These Affordable Care Act and other impending federal health plan changes will require employment-based group health plans, their employer and other plan sponsors, plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility and managing costs.

August 24 “2010 Health Plan Update” Internet Workshop Provides Key Information

Solutions Law Press invites you to catch up on the latest guidance about the new group health plan Affordable Care Act and other federal health plan regulations by participating in a live “2010 Health Plan Update” internet broadcast briefing on Tuesday, August 24 2010. The briefing will be conducted via live video broadcast from 11:00 A.M.-1:30 P.M. Central Time. Register & Get More Details.

Learn the tests that will decide if your group health plan will qualify as “grandfathered” from key Affordable Care Act requirements and assess what updates you should consider making to meet critical 2010/2011 Affordable Care Act & other federal health plan compliance deadlines.

How to qualify your health plan as a grandfathered plan under Affordable Care act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

To register or get additional information, see here.

For Assistance or More Information

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Comments Off on New Regulations & Court Decisions Require Health Plan Claims & Appeal Updates & Strengthening | Affordable Care Act, Claims Administration, Disability Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Preemption, Reporting & Disclosure | Tagged: Affordable Care Act, Appeals, Claims, ERISA, Health Plans | Permalink
Posted by Cynthia Marcotte Stamer

Free 8/13 ABA RPTE Study Group Call On Affordable Care Act Claims & Grandfathered Plan Regulations

August 8, 2010

On August 13, 2010, at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific, the RPTE Employee Benefits Group will host a free one hour “Study Group” conference call led by the Welfare Plan Committee to discuss the interim regulations under the Patient Protection and Affordable Care Act (PPACA) regarding claims adjudication and grandfather plan status. This timely discussion has immediate impact on practitioners and their clients dealing with group health plans, since the new rules generally apply to plan years beginning on or after September 23, 2010.

Key topics will include:

Mandatory Claims Processing and Appeals Process Requirements
Impact on 2001 ERISA Claims Regulations
Impact on Plan Designs and Plan Administration
Determining Grandfather Status
Impact of Future Plan Actions on Grandfather Status

In addition, the topics for possible future calls in September and October regarding health care reform, as well as the current ABA projects to provide comments to the DOL, IRS and Department of HHS with respect to guidance under PPACA and opportunities for involvement also will be discussed.

The conference call will be moderated by:

Cynthia Marcotte Stamer, Cynthia Marcotte Stamer, PC, Dallas, TX;
Elizabeth Leight, Society of Professional Benefit Administrators, Washington, DC; and
Scott Douglas Marquardt, Total Plan Services, Inc., Dallas, TX

The phone number and passcode for the call are:

(866) 646-6488

Pass code: 5380700259

Given the scope of the changes wrought by PPACA, and the numerous interpretations being offered in the legal and insurance communities as well as the media, this promises to be a lively discussion. Multiple views and comments are encouraged.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

ü Small Employers Sponsoring Health Coverage May Qualify For New Tax Credit, Must Act Quickly To Comply With Other New Federal Health Plan Mandates Under Affordable Care Act & Other Laws

ü Rite Aid Pays $1 Million HIPAA Privacy Settlement As OCR Tightens HIPAA Regulations

ü New Affordable Care Act Mandated High Risk Pre-Existing Condition Insurance Pool Program Regulations Prohibit Plan Dumping of High Risk Members, Set Other Rules

ü Register Now For 8/24 2010 Health Plan Update Briefing

ü Congress & Labor Department Considering Tightening of Retirement Plan Regulations

ü Testimony Highlights Growing Exposure of Businesses Misclassifying Workers; Businesses Should Act to Minimize Risks

ü Businesses Employing Children Should Review & Tighten Practices In Light of Tightened Rules & Increased Penalties

ü New Affordable Care Act Health Plan Appeals Regulations Require Health Plan Updates

ü Blockbuster & Health Delivery Disability Discrimination Settlements Highlight Need For Tightened Disability Discrimination Risk Management

ü Agencies Release Regulations Implementing Affordable Care Act Health Plan Preventative Care Mandates

ü New Retirement Plan Resource To Help Spanish-Speaking Participants With Retirement Planning

ü Office of Civil Rights Proposes Changes To HIPAA Privacy, Security & Civil Sanctions Rules

ü St. Louis Employer’s OSHA Violations Trigger Contempt Order and Penalties

ü Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny

ü Key Affordable Care Act Health Plan Coverage Mandates Guidance Issued June 28; Apply ASAP For Early Retirement Reinsurance Program

ü HHS, DOL & IRS Rules Define “Grandfathered” Group Health Plans & Health Insurance Coverage under the Patient Protection and Affordable Care Act

ü New Rule Requires Federal Government Contractors To Post New “Employee Rights Under The National Labor” Poster

ü Defined Contribution Plans Investing In Publically Traded Employer Securities Face New Requirements

ü CBO Raises Estimated Cost of Health Care Reforms As Employers, Health Plans Brace Costs Of Newly Effective & Impending Mandates

ü Certain Workforce Reductions Trigger Plant Closing Notice & Other Obligations

ü Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Business Leaders

ü DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses

ü COBRA, HIPAA, GINA, Mental Health Parity or Other Group Health Plan Rule Violations Trigger New Excise Tax Self-Assessment & Reporting Obligations

About Solutions Law Press

Comments Off on Free 8/13 ABA RPTE Study Group Call On Affordable Care Act Claims & Grandfathered Plan Regulations | Affordable Care Act, Claims Administration, Employee Benefits, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Reporting & Disclosure | Tagged: Affordable Care Act, Benefit Denials, Claims Regulations, Grandfathered Plans, Health Plans | Permalink
Posted by Cynthia Marcotte Stamer

Stamer To Conduct“Health Plan Eligibility Update” Teleconference For NBI October 13, 2010

August 5, 2010

Register Now For 8/24 2010 Health Plan Update Briefing

Employer and other group health plan sponsors and insurers, fiduciaries and administrators of group health must update their health plans and practices to comply with new federal rules imposed by the Affordable Care Act and a host of other evolving federal health plan rules. In the meantime, health plan sponsors, fiduciaries, insurers and administrators looking to catch up on the most significant new requirements for employer and union sponsored health plans for the upcoming year also should consider registering to participate in the Solutions Law Press Health Plan Update Briefing scheduled for August 24, 2010.

October 13 NBI Teleconference Focuses On Eligibility Requirements

Catch up on the evolving federal health plan eligibility rules that employer and union sponsored group health plans must meet by listening in as attorney Cynthia Marcotte Stamer speaks about “Health Plan Eligibility Update”” on a live teleconference to be hosted by National Business Institutes on Wednesday, October 13, 2010 from 1:00 p.m.- 2:30 Central Time. To register or for additional information on the October 13 NBI Teleconference , visit http://www.nbi-sems.com.

During the October 13, 2010 Health Plan Eligibility Teleconference, Ms. Stamer will share:

ü Core Requirements Of Federal Group Health Plan Eligibility Rules Including Evolving Requirements of:

The Affordable Care Act
COBRA
HIPAA
GINA
Family Leave
Military Leave
Michelle’s Law & Other Dependent Coverage
Medicare Secondary Payer

ü Implications On Cafeteria Plan & Other Common Enrollment Strategies

ü Tips to Keep Health Plans Complaint

August 24 SLP Internet Briefing Overviews Latest Core Federal Rules For Group Health Plans Generally

Solutions Law Press invites you to catch up on the latest guidance about the new group health plan mandates imposed under the Patient Protection and Affordable Care Act (Affordable Care Act) and other federal health plan regulations by participating in a live “2010 Health Plan Update” internet[i] broadcast briefing on Tuesday, August 24 2010. The briefing will be conducted via live video broadcast from 11:00 A.M.-1:30 P.M. Central Time. The August 24, 2010 “2010 Health Plan Update” briefing will cover the latest guidance on Affordable Care Act and other federal health plan regulatory changes impacting employment-based group health plans and their sponsors for plan years beginning between September 23, 2010 and September 22, 2011 and other key information to help employers, group health plans, insurers, plan administrators, fiduciaries, broker and others working with these plans to understand and respond to these new requirements. Register/Get Details Here!

About The Presenter

Both programs will be conducted by attorney Cynthia Marcotte Stamer. With more than 23 years of experience advising employers, group health plans, plan fiduciaries, plan administrators and vendors, insurers and others about health plan and managed care matters, Ms. Stamer is nationally known for her work, publications and presentations on health plan and other employee benefit, health care and insurance matters.

Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Committee, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises employers, health plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes and speaks extensively on these and other health and managed care program concerns and practices. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or publications, contact Ms. Stamer at (469) 767-8872 or via e-mail here, or see here.

About Solutions Law Press

If you found this of interest, you also may be interested in the following recent Solutions Law Press publications by Ms. Stamer:

Comments Off on Stamer To Conduct“Health Plan Eligibility Update” Teleconference For NBI October 13, 2010 | ADA, CHIP, COBRA, Employee Benefits, Employers, ERISA, family leave, Fiduciary Responsibility, FMLA, GINA, Health Plans, HIPAA, Human Resources, Insurance, Leave, medical leave, Medicare Part D, Mental Health, Mental Health Parity, Patient Protection and Affordable Care Act | Tagged: Affordable Care Act, Emploeyrs, GINA, Group Health plans, Health Plans, HIPAA, Insurers | Permalink
Posted by Cynthia Marcotte Stamer

Small Employers Sponsoring Health Coverage May Qualify For New Tax Credit, Must Act Quickly To Comply With Other New Federal Health Plan Mandates Under Affordable Care Act & Other Laws

August 4, 2010

Register for August 24 Health Law Update Briefing To Catch Up On Latest Affordable Care Act & Other Federal Health Plan Rules

The Affordable Care Act and other impending federal health plan changes will require employment-based group health plans, their employer and other plan sponsors – large and small, plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility. All employer and other group health plan sponsors, fiduciaries, insurers and administrators must act quickly to update their health plan documents, communications, insurance and vendor agreements and other practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years.

Information provided by the Internal Revenue Service (IRS) in April provides helpful insights about how the small employer tax credit works currently. These tax credit rules generally will apply from 2010-2013. An enhanced version of the credit will be effective beginning in 2014.

The tax credit generally is available to qualified employers who provide health care coverage for employees and meet certain requirements (“qualified employers”) generally are eligible for a Federal income tax credit for health insurance premiums they pay for certain employees. I

The employer must have fewer than 25 full-time equivalent employees (“FTEs”) for the tax year;
The average annual wages of its employees for the year must be less than $50,000 per FTE,
The employer must provide employees health care coverage by paying premiums under a “qualifying arrangement” within the meaning of the Act and regulations.

Either a for-profit or non-profit employer that meet these conditions generally can qualify as “qualifying employer.” However, special rules apply in calculating the credit for a tax-exempt qualified employer.

Calculation of the Credit

For purposes of the calculating the credit, the IRS Q&As indicate that only premiums paid by the employer under an arrangement meeting certain requirements (a “qualifying arrangement”) generally are counted in calculating the credit. Under a qualifying arrangement, the employer pays premiums for each employee enrolled in health care coverage offered by the employer in an amount equal to a uniform percentage (not less than 50 percent) of the premium cost of the coverage. Special transition rules apply for tax years beginning in 2010 with respect to the requirements for a qualifying arrangement.

If an employer pays only a portion of the premiums for the coverage provided to employees under the arrangement (with employees paying the rest), the amount of premiums counted in calculating the credit is only the portion paid by the employer. For example, if an employer pays 80 percent of the premiums for employees’ coverage (with employees paying the other 20 percent), the 80 percent premium amount paid by the employer counts in calculating the credit. For purposes of the credit (including the 50-percent requirement), any premium paid pursuant to a salary reduction arrangement under a section 125 cafeteria plan is not treated as paid by the employer.

In addition, the amount of an employer’s premium payments that counts for purposes of the credit is capped by the premium payments the employer would have made under the same arrangement if the average premium for the small group market in the State (or an area within the State) in which the employer offers coverage were substituted for the actual premium. If the employer pays only a portion of the premium for the coverage provided to employees (for example, under the terms of the plan the employer pays 80 percent of the premiums and the employees pay the other 20 percent), the premium amount that counts for purposes of the credit is the same portion (80 percent in the example) of the premiums that would have been paid for the coverage if the average premium for the small group market in the State were substituted for the actual premium.

The Q&As also indicate that the average premium for the small group market in a State (or an area within the State) will be determined by the Department of Health and Human Services (HHS) and published by the IRS. HHS and the IRS expect to publish the average premium for the small group market on a State-by-State basis is expected to be posted on the IRS website by the end of April.

Maximum Credit For A Qualified Employer

For tax years beginning in 2010 through 2013, the maximum credit is 35 percent of the employer’s premium expenses that count towards the credit unless the employer is a non-profit employer.

For a non-profit employer, the maximum credit for a tax-exempt qualified employer for 2010 to 2013 tax years is 25 percent of the employer’s premium expenses that count towards the credit. However, the amount of the credit cannot exceed the total amount of income and Medicare (i.e., Hospital Insurance) tax the employer is required to withhold from employees’ wages for the year and the employer share of Medicare tax on employees’ wages.

Reductions Of Tax Credit

The available tax credit declines if the number of FTEs of an employer exceeds 10 or if average annual wages exceed $25,000, the amount of the credit is reduced as follows (but not below zero). If the number of FTEs exceeds 10, the reduction is determined by multiplying the otherwise applicable credit amount by a fraction, the numerator of which is the number of FTEs in excess of 10 and the denominator of which is 15. If average annual wages exceed $25,000, the reduction is determined by multiplying the otherwise applicable credit amount by a fraction, the numerator of which is the amount by which average annual wages exceed $25,000 and the denominator of which is $25,000. In both cases, the result of the calculation is subtracted from the otherwise applicable credit to determine the credit to which the employer is entitled. For an employer with both more than 10 FTEs and average annual wages exceeding $25,000, the reduction is the sum of the amount of the two reductions. This sum may reduce the credit to zero for some employers with fewer than 25 FTEs and average annual wages of less than $50,000. The Regulations provide guidance for calculating the amount of the actual credit and claiming that amount.

Certain workers are not counted for purposes of determining the number of FTEs or average annual wages.

Qualifying small employers with taxable income for the year claim the credit on their e employer’s annual income tax return. For a tax-exempt employer, special rules apply. Since employers qualifying for the credit can consider the credit in determining estimated tax payments for the year to which the credit applies in accordance with regular estimated tax rules, employers qualifying for and planning to claim the credit may want to recalculate their quarterly income taxes taking into their projected tax credit. When taking the credit, an employer should keep in mind that claiming the credit does affect an employer’s deduction for health insurance premiums. by reducing the amount of premiums that can be deducted by the amount of the credit.

Other Health Plan Changes Require Prompt Action By All Sponsoring Employers Including Small Employers

The Small Employer Tax Credit is only one of many changes in federal health plan compliance requirements enacted under the Affordable Care Act. Narrowly passed by Congress in March after a year of contentious debate, the comprehensive health care reform legislation imposes a complex array of reforms impacting employment based health plans, employers, and the insurers and other vendors and administrators of these programs.

How to qualify your health plan as a grandfathered plan under Affordable Care Act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

The program will be conducted by the author of this update, attorney Cynthia Marcotte Stamer. With more than 23 years of experience advising employers, group health plans, plan fiduciaries, plan administrators and vendors, insurers and others about health plan and managed care matters, Ms. Stamer is nationally known for her work, publications and presentations on health plan and other employee benefit, health care and insurance matters.

Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Committee, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises employers, health plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes and speaks extensively on these and other health and managed care program concerns and practices. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. For additional information about Ms. Stamer and her experience, see here.

If you need assistance with these or other employee benefits, employment, compensation insurance or other management concerns, wish to inquire about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here,

About Solutions Law Press

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

[i] A limited number of participants on a space available basis will have the opportunity to participate in the briefing as a member of the live studio audio audience in Plano, Texas. Interested persons should e-mail support@solutionslawyer.net.

[ii] Discounts available for groups registering three or more participants. E-mail support@solutionslawyer.net.

Comments Off on Small Employers Sponsoring Health Coverage May Qualify For New Tax Credit, Must Act Quickly To Comply With Other New Federal Health Plan Mandates Under Affordable Care Act & Other Laws | Employee Benefits, Employers, Health Plans, Human Resources, Income Tax, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Rite Aid Pays $1 Million HIPAA Privacy Settlement As OCR Tightens HIPAA Regulations

August 3, 2010

Drug store chain Rite Aid Corporation and its 40 affiliated entities (Rite Aid) will pay $1 million to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. Although targeting a health care provider, employers, health plan sponsors, administrators, and service providers should recognise the the Rite Aid settlement as a strong reminder of the importance of reviewing and tightening their own human resources, employee benefits, adn other policies and processes to better safeguard protected health information, personal financial information and other sensitve data.

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights announcement of the HIPAA resolution agreement with Rite Aid and the concurrent negotiation of a separate consent order of potential FTC Act violations between Rite Aid and the Federal Trade Commission (FTC) follows HHS’ announcement of proposed changes to its HIPAA Privacy Rules and associated penalties in response to changes enacted under the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act). The Rite Aid settlement and the proposed Privacy Rule changes illustrate the growing penalty risks that health plans, health care providers, healthcare clearinghouses and their business associates (Covered Entities) face for violating the Privacy Rules. Read more details.

Additionally, the Rite Aid decision also serves as a reminder to employers, health plans and their administrators, insurers and finance and finance departments to tighten their controls over the use, access and disposal of sensitive information. A walk through of almost most employee benefit, human resources and finance department typically reveals that at any given time a wide range of personal health and other sensitve information is handled and disposed of in a manner that leaves it open to improper or unnecessary use or disclosure. Additionally, while situations like those in Rite Aid and CVS draw big press, Secret Service, FBI, DOL and other statistics show that most wrongful access and damage comes from the improper use of access of information gained through credentials as an employee, contractor or customer. Rite Aid, CVS, and other HIPAA, FTC and personal identity breach statistics, settlements and judgments are a reminder to all of the advisability of cleaning up their policies and controls to better protect this data.

For Assistance or More Information

If your organization needs assistance updating or defending your privacy, data security or other health plan design, documentation policies or procedures in response to these or other requirements or with other employee benefit, insurance or human resources matters, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Stamer continuously advises employers, health and other employee benefit plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Her extensive publications include numerous highly regarding works on HIPAA and other health plan matters published by the Bureau of National Affairs, the ABA, and others. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Comments Off on Rite Aid Pays $1 Million HIPAA Privacy Settlement As OCR Tightens HIPAA Regulations | Corporate Compliance, Data Security, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Internal Investigations, Medicare Part D, Risk Management | Tagged: Data Security, HIPAA, HITECH Act, Privacy, Privacy Rules, Rite Aid, Security Rules, Security Standards | Permalink
Posted by Cynthia Marcotte Stamer

New Affordable Care Act Mandated High Risk Pre-Existing Condition Insurance Pool Program Regulations Prohibit Plan Dumping of High Risk Members, Set Other Rules

August 1, 2010

Register Now For 8/24 Health Plan Update Briefing

Group health plans and insurers risk are prohibited from dumping or engaging in other actions designed to drive individuals with pre-existing high risk conditions to enroll in coverage under high risk pool plans established under the “Pre-Existing Condition Insurance Plan” (PCIP) program established by the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) in lieu of maintaining existing private coverage.

Section 1101 of the Affordable Care Act requires HHS to set up the PCIP program to ensure that a temporary high risk health insurance pool program exists to provide affordable health insurance coverage to uninsured individuals with pre-existing conditions until January 1, 2014, when Exchanges established under sections 1311 and 1321 of the Affordable Care Act take effect.

Interim final rules implementing the PCIP program (Regulations) issued by the Department of Human Services on Friday, July 30, 2010 prohibit group health plans and insurers from dumping individuals with high risk conditions from coverage. The Regulations also identify the individuals that will qualify for enrollment in PCIP plans and detail the rules governing the establishment, implementation and administration of the PCIP program.

Dumping High Risk Patients Prohibited

In addition to already-existing liability for any violation of existing prohibitions against discrimination based on health history under the Health Insurance Portability & Accountability Act, the Genetic Information Nondiscrimination Act, and the Affordable Care Act, the Regulations provide that a health insurance issuer or group health plan found to have illegally discouraged an individual from remaining enrolled in its coverage or engaging in other actions considered “dumping” based on the individual’s health status will be responsible for any medical expenses incurred by the PCIP to provide coverage for a dumped individual who subsequently enrolls in the PCIP plan. Additionally, HHS also may refer the insurer or the plan to Federal and State authorities for other enforcement actions that may be warranted based on the behavior at issue. In light of these exposures, group health plans and insurers should review and tighten their eligibility terms, processes and procedures to avoid prohibited conduct. In this respect, plans and insurer should pay particular attention to managing the conduct of individuals involved in communicating with members or prospective members. Insurers and plans should adopt policies clearly prohibiting eligibility discrimination in violation of these and other rules and back up these rules by clear operating policies and training that makes clear to individuals involved in enrollment and other enrollment activities what conduct is prohibited.

More OnThe PCIP Program & Regulations

The Regulations provide an individual will be eligible to enroll in a PCIP if he or she:

Is a citizen or national of the United States or lawfully present in the United States;
Has not been covered under creditable coverage for a continuous 6-month period of time prior to the date on which such individual is applying for PCIP;
Has a pre-existing condition within the meaning of the Affordable Care Act;
Is a current resident of one of the 50 States or the District of Columbia which constitutes or is within the service area of the PCIP; and
Meets other criteria established by the PCIP with HHS approval.
PCIP Plans will be required to cover eligible individuals without any pre-existing condition limitation or waiting period.

The Regulations outline the process that a State or nonprofit private entity to pursue and enter into a contract with HHS to set up and run a PCIP program. The PCIP program generally anticipates that each State will contract with HHS to maintain a qualifying PCIP program directly or by subcontracting with another party. If a State elects not to or fails to maintain a PCIP program, however, the Regulation states HHS will contract with a nonprofit private entity to offer a PCIP program in that State.

PCIP program operates must have enrollment and disenrollment rules and processes that meet the applicable standards in the Regulations. The Regulations dictate that as part of this process, a PCIP verify that an individual is a United States citizen or national or lawfully present in the United States in accordance with the Regulations. The Regulations also allow PCIPS to employ certain strategies to manage enrollment over the course of the program that may include enrollment capacity limits, phased-in (delayed) enrollment, and other measures, as defined by the PCIP and approved by HHS to manage the PCIP program’s compliance with funding and other allowable requirements.

The Regulations specify that each benefit plan offered by a PCIP cover at least the following categories and the items and services:

Hospital inpatient services
Hospital outpatient services
Mental health and substance abuse services
Professional services for the diagnosis or treatment of injury, illness, or condition
Non-custodial skilled nursing services
Home health services
Durable medical equipment and supplies
Diagnostic x-rays and laboratory tests
Physical therapy services (occupational therapy, physical therapy, speech therapy)
Hospice
Emergency services and ambulance services
Prescription drugs
Preventive care
Maternity care

The Regulations also prohibit PCIP Plans from offering certain benefits. Benefit plans offered by a PCIP cannot cover the following services:

Cosmetic surgery or other treatment for cosmetic purposes except to restore bodily function or correct deformity resulting from disease.
Custodial care except for hospice care associated with the palliation of terminal illness.
In vitro fertilization, artificial insemination or any other artificial means used to cause pregnancy.
Abortion services except when the life of the woman would be endangered or when the pregnancy is the result of an act of rape or incest.
Experimental care except as part of an FDA-approved clinical trial.

The Regulations regulate the premiums and cost sharing that PCIP programs can use. The Regulations limit the premium a PCIP may charge to 100 percent of the premium for the applicable standard risk rate that would apply to the coverage offered in the State determined in accordance with the Regulations using HHS-approved reasonable actuarial techniques. Premiums charged to enrollees in the PCIP may vary on the basis of age by a factor not greater than 4 to 1. Also, the PCIP program’s average share of the total allowed costs of the PCIP benefits must be at least 65 percent of such costs. Furthermore, the out-of-pocket limit of coverage for cost-sharing for covered services under the PCIP cannot exceed the Internal Revenue Code § 223(c)(2) limit. If the plan uses a network of providers, this limit may be applied only for in-network providers, consistent with the terms of PCIP benefit package.

The Regulations allow a PCIP program to require that covered persons use network providers for non-emergency services if that the PCIP has sufficient providers to ensure that all covered services are reasonably available and accessible to its enrollees. Out-of-network coverage for emergency services will be required under certain conditions. The Regulations also will require PCIPst o process and administer claims and appeals in compliance with the Regulations.

The Regulations also require PCIPs to develop and apply operating procedures to prevent, detect, report to HHS and law enforcement and recover (when applicable or allowable) incidences of waste, fraud, and abuse and to cooperate with Federal law enforcement and oversight authorities in cases involving waste, fraud and abuse.

Register For 8/24 Internet Briefing To Learn If Your Plan Will Be Grandfathered Plan & What Health Plan Updates Your Plan Will Require To Meet 2010/2011 Affordable Care Act & Other Federal Health Plan Compliance Deadlines

For Assistance or More Information

If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Comments Off on New Affordable Care Act Mandated High Risk Pre-Existing Condition Insurance Pool Program Regulations Prohibit Plan Dumping of High Risk Members, Set Other Rules | Affordable Care Act, Corporate Compliance, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, Human Resources, Insurance | Permalink
Posted by Cynthia Marcotte Stamer

Register Now For 8/24 2010 Health Plan Update Briefing

July 30, 2010

Learn If Your Plan Will Be Grandfathered Plan & What You Must Do Now To Meet Key 2010/2011 Affordable Care Act & Other Federal Health Plan Compliance Deadlines

A Solutions Law Press Live Internet Broadcast Briefing

August 24, 2010

10:00 A.M.-12:30 P.M. Eastern

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

9:00 A.M-11:30 A.M. Pacific

Affordable Care Act Requires Prompt Action By Group Health Plans, Sponsors, Fiduciaries & Administrators

The Affordable Care Act and other impending federal health plan changes will require employment-based group health plans, their employer and other plan sponsors, plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility. All employer and other group health plan sponsors, fiduciaries, insurers and administrators must act quickly to update their health plan documents, communications, insurance and vendor agreements and other practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years. Many plan sponsors also may need to act quickly to cancel or revise plan design or vendor changes planned or already implemented since March 23, 2010 to position their health plan to qualify for grandfather status. Quick action also may be needed to claim small employer tax credits, retiree medical subsidies or other benefits.

Register Now To Get Key Information In August 24 Internet Briefing

How to qualify your health plan as a grandfathered plan under Affordable Care act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

About The Presenter

The program will be conducted by attorney Cynthia Marcotte Stamer. With more than 23 years of experience advising employers, group health plans, plan fiduciaries, plan administrators and vendors, insurers and others about health plan and managed care matters, Ms. Stamer is nationally known for her work, publications and presentations on health plan and other employee benefit, health care and insurance matters.

About Solutions Law Press

[*] A limited number of participants on a space available basis will have the opportunity to participate in the briefing as a member of the live studio audio audience in Plano, Texas. Interested persons should e-mail support@solutionslawyer.net.

[†] Discounts available for groups registering three or more participants. Sponsorship opportunities also available. For information, E-mail support@solutionslawyer.net.

Comments Off on Register Now For 8/24 2010 Health Plan Update Briefing | ADA, Affordable Care Act, COBRA, Disease Management, Employee Benefits, Employers, ERISA, Excise Tax, family leave, Fiduciary Responsibility, FMLA, GINA, HIPAA, Human Resources, Insurance, Internal Controls, Leave, medical leave, Mental Health, Patient Protection and Affordable Care Act, Payroll Tax, Privacy, Protected Health Information, Risk Management, Tax, Wellness | Tagged: Affordable Care Act, COBRA, FLSA, GINA, grandfathered plan, Health Plan, HIPAA, Mental Health Parity, Michelle's Law | Permalink
Posted by Cynthia Marcotte Stamer

Congress & Labor Department Considering Tightening of Retirement Plan Regulations

July 28, 2010

With health care reformed passed, Congressional leaders are considering the need to change federal retirement plan rules under the Employee Retirement Income Security Act or other laws. Employer and other retirement plan sponsors, fiduciaries, administrators, advisors and vendors should keep a close eye out for legislation or regulation that would impose additional obligations on the administration of retirement plans in light of this new scrutiny.

In June 16, 2010 testimony before the Senate Special Committee on Aging, Assistant Secretary for the Employee Benefits Security Administration (EBSA) Phyllis Borzi discussed steps the Labor Department is taking to explore lifetime income options for participants and beneficiaries in private-sector retirement plans. Her June 16 testimony, Ms. Borzi told Congress members the IRS and Labor Department are “committed to exploring what can be done through interpretation, regulation and legislation” to address the shift of financial risks of retirement to employees arising from the shift from defined benefit to defined contribution plans.

Ms. Borzi indicated the Departments are looking at regulatory and other changes to provide better information and tools to require or encourage retirement plans to offer lifetime income options and communication and other tools to help workers better prepare to make their savings last throughout their retirement years. She also reported that more than 800 comments were received in response to a Request for Information on lifetime income option alternatives jointly issued by the Labor Department and Internal Revenue Service. Ms. Borzi indicated that the Request for Information is intended to start a national dialogue about the reforms needed in this area and how best to address those needs.

Public policy initiatives have primarily focused on the accumulation stage of retirement planning. Only recently has there been a greater focus on the decumulation stage of retirement, and what workers and retirees do upon receipt of their retirement savings. Given the potential utility of lifetime income to participants in efficiently constructing their personal retirement incomes, Ms. Borzi told Congress the Labor Department will be considering if additional information could assist participants in this regard, and what impediments exist to providing such information. Some policy makers believe that providing participants with both the lump sum value of their accounts and the value of an equivalent income stream would be very valuable to workers who have to figure out how to make their savings last throughout their retirement years.

While Ms. Borzi said the Labor Department is still evaluating options, her comments clearly reflect that the Labor Department’s emphasis will focus heavily on promoting greater security for a lifetime stream of income after retirement. Her statements also signal that retirement plan sponsors, fiduciaries and vendors should expect to see changes in communication, funding and other retirement plan rules. If you need assistance monitoring or responding to retirement plan or other employee benefits, employment or related regulations, or dealing with other employment or employee benefit concerns, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or cstamer@solutionslawyer.net.

About the Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters. A featured speaker in the June 29 ABA JCEB Teleconference on Worker Classification, Ms. Stamer is The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, the editor of Solutions Law Press HR & Benefits Update. Ms. Stamer also is recognized for her lengthy resume of publications, industry leadership, workshops and presentations on worker classification, and other employment, employee benefits, and related workforce and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Congress & Labor Department Considering Tightening of Retirement Plan Regulations | Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Retirement Plans | Tagged: defined contribution plan, retirement plan, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

2010 Health Plan Update: Learn What You Must Do Now To Meet Key 2010/2011 Affordable Care Act & Other Federal Health Plan Deadlines

July 23, 2010

August 24, 2010

10:00 A.M.-12:30 P.M. Eastern ¨ 11:00 A.M.- 1:30 P.M. Central ¨ 9:00 A.M-11:30 A.M. Pacific

Affordable Care Act Requires Prompt Action By Group Health Plans, Sponsors, Fiduciaries & Administrators

August 24 Live Briefing Provides Key Information By Internet Broadcast

How to qualify your health plan as a grandfathered plan under Affordable Care Act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

About The Presenter

About Solutions Law Press

[†] Discounts available for groups registering three or more participants. E-mail support@solutionslawyer.net.

Comments Off on 2010 Health Plan Update: Learn What You Must Do Now To Meet Key 2010/2011 Affordable Care Act & Other Federal Health Plan Deadlines | ADA, Affordable Care Act, Disease Management, EEOC, Employee Benefits, Employers, ERISA, Excise Tax, family leave, Fiduciary Responsibility, FMLA, GINA, H.R. 4872, Health Care Reform, Health Plans, HIPAA, Human Resources, Insurance, Leave, medical leave, Medicare Part D, Mental Health, Mental Health Parity, Military Leave, Patient Protection and Affordable Care Act, Payroll Tax, Prescription Drugs, Public Policy, Reporting & Disclosure, Union, USERRA, Wellness, Wellness Programs | Tagged: Affordable Care Act, broker, Employers, grandfathered plan, Group Health plans, health coverage, Health Plans, Insurer, Mental Health Parity, Patient Protection and Affordable Care Act, plan sponsor, pre-existing conditions, preventive care | Permalink
Posted by Cynthia Marcotte Stamer

New Affordable Care Act Health Plan Appeals Regulations Require Health Plan Updates

July 23, 2010

Register For August 24^th 2010 Health Plan Update To Catch Up On Latest Federal Health Plan Regulations

Employer and other plan sponsors, administrators, and fiduciaries of non-grandfathered group health plans must move quickly to update their plan documents, administrative procedures and agreements, claims and other communications and other processes and procedures to comply with new regulations (Appeals Rules) implementing tightened health plan claims and appeals rules enacted under the Patient Protection & Affordable Care Act (Affordable Care Act) jointly published by the U.S. Departments of Health & Human Services (HHS), Labor (DOL) and Treasury yesterday (July 23, 2010). The new Appeals Rules are the latest in a wave of new Affordable Care Act and other federal regulations that require quick action by employment based health plans, their employer and other sponsors, fiduciaries, administrators and insurers. Regulations issued in previous weeks by the Departments define when health plans and health insurance policies qualify as “grandfathered” under the Affordable Care Act and interpret and implement many other federal health plan rule changes enacted by the Affordable Care Act. In addition to responding to these Affordable Care Act changes, most group health plans also will require updates in response to other federal health plan rule changes beyond those enacted under the Affordable Care Act. To assist concerned business leaders, plan fiduciaries and plan administrators to understand and cope with these new rules, Solutions Law Press invites you to participate in the live “2010 Health Plan Update,” internet workshop on August 24, 2010 from 11:00 a.m.-1:30 p.m. Central Time. To register or for other details, see here.

Affordable Care Act Appeals Rules & Other Federal Claims & Appeals Regulations Make Prompt Plan Review & Update Advisable

Currently, all group health plans covered by the Employee Retirement Income Security Act (ERISA) must prudently process and administer claims and appeals using reasonable claims and appeals procedures that comply with detailed Labor Department regulations. Recent Supreme Court and other decisions send a strong signal that many group health plans, their insurers, and administrators need to tighten their existing documentation and practices to promote the defensibility of claims and appeal decision making under the existing requirements of ERISA and the existing Labor Department regulations implementing these requirements. These existing claims and appeals requirements generally will continue to apply to all ERISA-covered group health plans without regard to whether the group health plan qualifies as grandfathered or non-grandfathered for purposes of the affordable care act.

The new requirements generally will apply to claims denials and coverage rescissions made by non-grandfathered health plans beginning with the first plan year beginning after September 22, 2010. Furthermore, non-grandfathered group and individual health policies subject to the Appeals Rules also may continue to be required to comply with state-mandated external and/or independent review and other state-imposed claims and appeals procedures.

In addition to complying with existing claims and appeals requirements, the new Appeals Rules also will require that non-grandfathered health plans modify existing claims and appeals procedures to comply with new federal appeals protections mandated under the Affordable Care Act. The Appeals Rules requirements for internal claims and appeals processes generally will apply to any denial, reduction, or termination of, or failure to provide or make a payment (in whole or in part) for a benefit, including any:

Rescission of coverage as defined in the regulations restricting rescissions
Determination of an individual’s eligibility to participate in a plan or health insurance coverage
Determination that a benefit is not a covered benefit
Imposition of a preexisting condition exclusion, source-of-injury exclusion, network exclusion, or other limitation on otherwise covered benefits
Determination that a benefit is experimental, investigational, or not medically necessary or appropriate
Other denial, reduction, or termination of, or a failure to provide or make a payment (in whole or in part) for a benefit can include both pre-service claims (for example, a claim resulting from the application of any utilization review), as well as post-service claims and
Any other instance where a plan pays less than the total amount of expenses submitted with regard to a claim, including a denial of part of the claim due to the terms of a plan or health insurance coverage regarding co-payments, deductibles, or other cost-sharing requirements.

When applicable, the new Appeals Rules among other things will require that non-grandfathered group health plans and insurers issuing non-grandfathered health insurance plans and policies:

Implement specified internal and external review procedures
Must continue to provide continued coverage pending the outcome of an internal appeal
Comply with the Appeals Rules’ additional criteria for ensuring that a claimant receives a full and fair review in addition to complying with the requirements of existing Labor Department claims and appeals procedures.

Highlights of some of these fair review requirements include:

Timely allowing a claimant to review the claim file and to present evidence and testimony as part of the internal claims and appeals process
Before issuing a final internal adverse benefit determination based on a new or additional rationale, timely proving the claimant free of charge, with the rationale
Complying with the Appeals Rules’ requirements for ensuring that all claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision
Providing certain notifications regarding appeals and other rights as required by the Appeals Rules

The Appeals Rules also state that if a plan or issuer that fails to strictly adhere to all of its requirements with respect to a claim, the claimant may initiate an external review and pursue any available remedies under applicable law, such as judicial review regardless of whether the plan or issuer asserts that it substantially complied with these requirements or that any error it committed was de minimis.

Both Grandfathered & Non-Grandfathered Plans Should Review Existing Claims & Appeals Procedures For Compliance With Existing Labor Department Regulations

Grandfathered health plans will not be required to comply with the new Appeals Rules. Like non-grandfathered plans, however, grandfathered plans will remain covered by the current claims and appeals requirements of ERISA and the existing Labor Department regulations. Along the Labor Department updated its existing claims and appeals regulations a decade ago, many plan fiduciaries, administrators and insurers have failed to fully update their plan documentation, processes and notifications to comply with these highly specific and detailed requirements. Furthermore, most grandfathered health plan sponsors and administrators also will want to consider whether any tightening of their health plan’s claims and appeals processes is warranted by language contained in the preamble to the Appeals Rules that that clarifies the Labor Department’s interpretation of existing claims and appeals procedures.

Other Affordable Care Act & Other Health Plan Rule Changes Require Prompt Action By Group Health Plans, Sponsors, Fiduciaries & Administrators

The Appeals Rules are the latest in a series of recently-issued guidance implementing various health coverage requirements of the Affordable Care Act. It follows closely the publication by the Agencies of regulations about when group health plans and insurance qualify as “grandfathered plans” for purposes of determining deadlines for complying with certain health care reform requirements imposed under the Affordable Care Act and a series of other regulations construing and implementing various other Affordable Care Act requirements. For additional information about these other Affordable Care Act requirements, see here.

These Affordable Care Act and other impending federal health plan changes will require employment-based group health plans, their employer and other plan sponsors, plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility.

August 24 “2010 Health Plan Update” Internet Workshop Provides Key Information

How to qualify your health plan as a grandfathered plan under Affordable Care act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

To register or get additional information, see here.

About The Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employer and other plan sponsors, insurers, administrators, fiduciaries, governments and others design, administer and defend innovative health and other employee benefit programs and other human resources, compensation and management policies and practices. Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. You can review other highlights of Ms. Stamer’s experience here. If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Solutions Law Press & Other Solutions Law Press Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on New Affordable Care Act Health Plan Appeals Regulations Require Health Plan Updates | Affordable Care Act, COBRA, COBRA Subsidy, Employee Benefits, Employers, ERISA, family leave, Fiduciary Responsibility, FMLA, H.R. 4872, Health Care Reform, Health Plans, Human Resources, Insurance, Leave, medical leave, Mental Health, Mental Health Parity, Patient Protection and Affordable Care Act, Protected Health Information, Tax, Wellness, Wellness Programs | Tagged: Affordable Care Act, Appeals, Claims, Claims Procedures, ERISA, Health Care Reform. Health Plans, Health Insurance, Health Plans | Permalink
Posted by Cynthia Marcotte Stamer

Blockbuster & Health Delivery Disability Discrimination Settlements Highlight Need For Tightened Disability Discrimination Risk Management

July 19, 2010

A public accommodation disabilities charge settlement agreement with Blockbuster Inc. announced by the U.S. Department of Justice and an employment disability discrimination settlement agreement with Health Delivery, Inc. highlight the advisability for U.S. businesses to check and strengthen their disability and other nondiscrimination policies, training and risk management efforts.

On July 19, 2010, the Justice Department announced that an agreement with Blockbuster Inc. to settle a complaint (DOJ Complaint #202-35-231) that charged Blockbuster Inc with violating Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189.

Retail stores like those owned and operated by Blockbuster generally are places of public accommodation covered by Title III of the ADA. The ADA generally prohibits places of public accommodation, including those operating retail stores, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, facilities, and accommodations. Furthermore, the ADA specifically requires public accommodations to make reasonable changes in policies, practices, and procedures to permit the use of service animals by persons with disabilities.

The settlement resolves a complaint filed by a disabled individual who complained Blockbuster denied her an equal opportunity to enjoy its goods, services, and facilities at several stores because the complainant was accompanied by her service animal. According to the complaint, Blockbuster Inc. employees refused to allow her to access the store with her service animal even after she had contacted Blockbuster management to ensure that she and her service animal would be allowed in Blockbuster stores and had been assured that such access problems would be properly addressed.

Although Blockbuster contended in the course of the investigation of the complaint that it already had policies and training in place about Title III of the ADA, the Justice Department and the complainant contended that these steps failed to adequately achieve the necessary ADA compliance.

While Blockbuster Inc. did not admit wrongdoing, it agreed under the settlement agreement:

Consistent with the requirements of Title III of the ADA, not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations;
Not to refuse to make reasonable modifications to policies, practices, and procedures to afford equal access to the goods, services, facilities, privileges, advantages, and accommodations of its Blockbuster stores by persons with disabilities or when otherwise necessary to avoid discrimination against individuals with disabilities, including but not limited to persons who use service animals;
To pay $12,000.00 to the complainant and $10,000.00 to the United States;
To distribute to employees with contact with the public and conspicuously where employees can read an-agreed upon Service Animal Policy that will ensure equal access for persons with disabilities who use service animals to all facilities that it operates;
To keep on hand in all stores for any store customers who wish to, upon request, read the Policy and post under the “Stores” link on its website (http://www.blockbuster.com) in an accessible format (e.g., HTML) the terms of the Service Animal Policy consistent with the requirements of Title III of the ADA;
To conduct Justice Department-approved employee training as specified in the settlement agreement;
To post in a conspicuous location in the public entryways of all Blockbuster stores a “Service Animals Welcome” sign with information about how to access a required ADA Complaint Line and other agreed upon content; and
To establish and administer a grievance program through which it will receive and investigate customer complaints of alleged ADA Title III violations.

Rising Employment Discrimination Exposures

The Blockbuster Inc. settlement is one of many signs of the rising discrimination exposures businesses face under federal discrimination public accommodation and employment laws. The Justice Department under the Obama Administration is devoting significant resources to the investigation and prosecution of claims that businesses are violating the public accommodation provisions of the ADA. This heightened enforcement emphasis has resulted in the Justice Department’s announcement of more than 20 ADA public accommodation claims since January 1, 2010. See here.

Meanwhile, Equal Employment Opportunity Commission (EEOC) also continues to vigorously pursue disability and other discrimination charges. On July 9, 2010, for example, the EEOC announced that Health Delivery, Inc. had agreed to pay $45,000 to settle charges that engaged in prohibited disability based employment discrimination by refusing to hire an employee with a record of a disability. Health Delivery, Inc., a Saginaw, Mich.-based health services provider had been charged with violating the ADA by unlawfully refusing to return to work an employee with a record of depression even though she had completed a course of treatment and had been approved to return to work. In addition to the paying the required settlement, Health Delivery, Inc. also agreed to make disability discrimination policy changes and to provide training to all of its management and supervisory employees regarding the ADA.

Businesses Must Act To Manage Risks

In light of this continuing emphasis on investigation and prosecution of disabilities claims, businesses should review and update their existing policies and practices prohibiting unlawful discrimination in employment and the provision of services based on race, color, religion, sex, familial status, national origin, disability, veteran status or other basis prohibited by law and other steps to be prepared to demonstrate their compliance in operation as well as form. While adopting and communicating appropriate policies prohibiting unlawful discrimination in the provisions of goods, services, and employment is an important element of compliance, businesses also need to take necessary steps to ensure that their customers, workforce and operations comply with these policies in practice. Businesses should not assume that the usual recital of their equal employment and services policies alone will suffice. Businesses also need to have and administer well-documented practices and procedures governing the report, investigation and disposition of complaints. These procedures should include clearly written and well communicated procedures to be used to report suspected violations. Businesses also must take appropriate, well-documented steps to communicate and train workforce members regarding the policy, establish and communicate clear procedures requiring employees both to comply with these rules and to report known or suspected violations. Businesses also should consider establishing compliance hotlines and using other compliance audit processes to monitor and address possible violations. They should be prepared to demonstrate they take seriously and take appropriate action to investigate suspected violations, to rectify confirmed violations, and to appropriately discipline employees or others that participate in prohibited violations.

About the Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, the editor of Solutions Law Press HR & Benefits Update and, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Blockbuster & Health Delivery Disability Discrimination Settlements Highlight Need For Tightened Disability Discrimination Risk Management | ADA, EEOC, Employee Benefits, Employers, Human Resources, Internal Controls, Rehabilitation Act | Permalink
Posted by Cynthia Marcotte Stamer

CMS & ONC To Co-Host 7/22 ONC Certification & Medicare/Medicaid EHR Incentive Program Audio Training

July 19, 2010

The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) will co-host an Audio Training on the Final Rules for ONC Certification and Medicare and Medicaid EHR Incentive Programs on July 22, 2010 from 2:00-3:30 pm EST.

During the training, the Agencies plan to discuss:

Benefits of HIT
Summary of the final rules
ONC temporary certification process
ONC initial set of standards and implementation specifications
Medicare and Medicaid EHR Incentives Programs including the initial definition of meaningful Use

To join the audio training, dial 1-877-251-0301 and enter the Conference ID pass code: 87841621

Materials will be made available prior to the training at the following web address here.

For more information about CMS EMR incentives, see here.

About The Author

The author of numerous highly regarding publications on HIPAA and other health care IT related matters, Ms. Stamer works extensively with employer and other health plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on health benefit program and product design, documentation, administration, compliance, risk management, and public policy matters. The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns for the ABA, the Bureau of National Affairs and many other organizations.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other HIPAA, EMR and other health technology, health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on CMS & ONC To Co-Host 7/22 ONC Certification & Medicare/Medicaid EHR Incentive Program Audio Training | Affordable Care Act, Data Security, Employee Benefits, Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Medicare Part D, Patient Protection and Affordable Care Act, Protected Health Information, Public Policy | Tagged: ARRA, EHR, electronic health records, Electronic Medical Records, EMR, Health IT, Health Plans, HIPAA, HITECH Act | Permalink
Posted by Cynthia Marcotte Stamer

Free 7/22 Study Group Teleconference Call on Self Correction, Determination Letters & Other Administrative Practices

July 19, 2010

Beginning at Noon Central on July 22, 2010, the American Bar Association (ABA) Real Property Probate & Trust (RPTE) Section Employee Benefits & Other Compensation Group and ABA Tax Section Subcommittee on Self Correction, Determination Letters and other Administrative Practice will host a special one hour telephone conference call on questions regarding the tax-qualified employee benefit plan determination letter program and interim amendments.

Slated to begin at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific Time, Ingrid Grinde, Manager, Group 1, EP Technical Guidance and Quality Assurance of the IRS will is expected to be joined by Michael Spaid, an actuary in the Employee Plans, Tax Exempt and Government Entities Division, IRS for this second “study group” session, which follows up on a study group session hosted by the RPTE Section in March, 2010.

The July 22 program is in lieu of the regular bimonthly RPTE Employee Benefits Group conference call, which typically are held at 1 PM Eastern, Noon Central on the first Monday of every other month

The call will again be lead by members of the RPTE Employee Benefits & Other Compensation Group Leadership, Joy Mercer, Frank Palmieri and Lisa Tavares.

The phone number and passcode for the special call are:

(866 ) 603 – 1269

Conference ID # 85693340

Company Name: American Bar Association

Leader Name: Robert Miller

As this is an operator assisted call with a limited number of lines available, organizers recommend persons planning to join the call dial in approximately 10 minutes early, to avoid any delay and to reserve a line.

About the Author

This information is provided by author Cynthia Marcotte Stamer. If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, the editor of Solutions Law Press HR & Benefits Update and, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Free 7/22 Study Group Teleconference Call on Self Correction, Determination Letters & Other Administrative Practices | Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, ERISA, Retirement Plans, Tax, Tax Qualification | Permalink
Posted by Cynthia Marcotte Stamer

Labor Department FMLA Guidance Signals Need For Employer Care Determining Who Qualifies As Child

July 19, 2010

Employers and employee benefit plan administrators deciding whether to approve the request of an employee for leave or other rights under the Family and Medical Leave Act (FMLA) due to the serious illness, birth, adoption or placement of a child with no legal or biological relationship with the employee should not underestimate the scope of the FMLA’s reach based on recent guidance. Employers and plan administrators also need to be sure that their policies are properly drafted and administered to apply right definition of child based on the class of leave requested as the family-status-relevant definitions under the FMLA and other laws continue to proliferate.

Recent Department of Labor Wage & Hour Division Wage and Hour Division (WHD) guidance reveals the WHD adopts a very broad view of the circumstances under which a when a child with no legal or biological relationship to an employee can qualify as a “son or daughter” for purposes of determining rights of the employee under the FMLA based on the birth , adoption, placement for adoption or need to care for the child during a serious illness and a narrow view of the documentation that an employer may require an employee to provide to prove such a relationship exists.[i]

Background

The FMLA entitles an employee to 12 work weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.[ii]

The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis” who is either:

Under 18 years of age; or
18 years of age or older and incapable of self-care because of a mental or physical disability.”[iii]

In Loco Parentis

The FMLA regulations define in loco parentis as including those relationships between an employee and a child where the facts and circumstances show that the employee has undertaken day-to-day responsibilities to care for and financially support a child.[iv]

Administrator’s Interpretation No. 2010-3 (June 22, 2010) (WHD Interpretation) clarifies the definition of “son or daughter” under Section 101(12) of the FMLA as it applies to an employee standing “in loco parentis” to a child taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The WHD Interpretation does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions.

The WHD Interpretation states that the FMLA does not require an employee who intends to assume the responsibilities of a parent to prove that he or she provides both day-to-day care and financial support to be found to stand in loco parentis to a child.

According to the WHD Interpretation, the determination of when an employee has an in loco parentis relationship with a child is fact specific question based on the facts and circumstances with no particular factor being dispositive. . The WHD Interpretation adds that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.

“The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties” taking into account a variety of factors including the age of the child; the degree to which the child is dependent on the person claiming to stand in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

Noting Congress intended the phrase “in loco parentis” to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child, the WHD Interpretation states the phrase is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.”

Applying these principles, the WHD Interpretation identifies various situations where the WHD perceives that relationship in loco parentis might exist for purposes of the FMLA based on the assumption of the employee of either responsibility to care for a child or financial responsibility for the child in the absence of a biological or legal relationship including:

Where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child;
Where an employee who will share equally in the raising of a newborn or adopted child with the child’s biological parent;
Where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care,;
Where an aunt assumes responsibility for raising a child after the death of the child’s parents.

In contrast, the WHD Interpretation notes that an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

When determining whether to approve a FMLA Leave request of an employee seeking time off due to the birth, adoption, placement for adoption or serious illness of a child with whom the employee has no biological or legal relationship, the WHD Interpretation makes clear that the WHD construes the phrase “in loco parentis” broadly. Furthermore, the WHD Interpretation also signals the need for employers to exercise caution when requiring documentation of the existence of such a claimed relationship. While acknowledging that the FMLA allows an employer to require an employee claiming a relationship in loco parentis with child to require the employee to provide reasonable documentation or statement of the family relationship, the WHD Interpretation raises questions about the degree of documentation that the employer may require. According to the WHD Interpretation, “[a] simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”[v]

Drafting Policies & Using the Right Standard for the Right Circumstances

When drafting and applying FMLA and other legally mandated policies, it’s important that employers, employee benefit plan sponsors and administrators and others use the correct standard for the circumstance prevented. The FMLA definition of child from the WHD Interpretation applies only to determinations of the status of a person as a son or daughter for purposes of the FMLA’s leave provisions regarding leaves requested due to the serious illness, birth or adoption of a child of an employee and not for military related FMLA leaves. Different standards apply for military related FMLA leaves. Similarly, the standards used to determine who qualifies as a child for purposes of FMLA may not necessarily be the same as legally required to decide when an individual qualifies as a child for other legal purposes. For instance, recent changes to federal health plan rules enacted as part of the Patient Protection & Affordable Care Act may require that group health plans and insurers use different standards to decide when an individual qualifies for enrollment as the child of an employee in dependent coverage beyond those applicable under the FMLA. It is highly advisable that employers and employee benefit plan sponsors and administrators carefully review and update their existing policies, plan documents and practices for compliance with the appropriate and currently applicable standards and exercise care in the administration of these practices to avoid costly mistakes.

About the Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employers, professional employment organizations, employee benefit plan sponsors and administrators and others on a wide range of labor and employment, employee benefits, and other management matters. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, the editor of Solutions Law Press HR & Benefits Update and, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

[i] See 29 C.F.R. § 825.122(g), (h).

[ii] See 29 U.S.C. § 2612(a)(1)(A) – (C); 29 C.F.R. § 825.200.

[iii] 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.[1].

[iv] 29 C.F.R. § 825.122(c)(3).

[v] See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

Comments Off on Labor Department FMLA Guidance Signals Need For Employer Care Determining Who Qualifies As Child | Disability Plans, Employee Benefits, Employers, family leave, FMLA, Health Plans, Human Resources, Insurance, Internal Controls, Leave, medical leave | Tagged: adoption, child, Family Leave, FMLA, medical leave, placement for adoption, serious medical condition | Permalink
Posted by Cynthia Marcotte Stamer

New Retirement Plan Resource To Help Spanish-Speaking Participants With Retirement Planning

July 14, 2010

Employers, retirement plan fiduciaries, administrators, investment and financial advisors with Spanish speaking participants should check out a new resource from the U.S. Department of Labor Employee Benefits Security Administration, “Taking the Mystery Out of Retirement Planning in Spanish,” available at http://www.dol.gov/ebsa/publications/nearretirementsp.html.

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer has more than 23 years experience working with employer and other plan sponsors, insurers, Managing Editor of Solutions Law Press and a member of the editorial advisory board of many other industry publications and programs. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on New Retirement Plan Resource To Help Spanish-Speaking Participants With Retirement Planning | Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Reporting & Disclosure, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

Office of Civil Rights Proposes Changes To HIPAA Privacy, Security & Civil Sanctions Rules

July 8, 2010

Stay Tuned To Solutions Law Press For More Details

Last Chance To Register for July 9 Virtual Briefing On Affordable Care Act Health Plan Guidance. Details here

Start tightening your health information privacy and security safeguards and practices and prepare for new scruitiny. The U.S. Department of Health & Human Services Office for Civil Rights (OCR) today (July 8, 2010) made public its plans to modify its Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy, Security, and Enforcement Rules in response to amendments enacted under the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. Health plans, their sponsors, administrators, fiduciaries, insurers and service providers will need to respond to these rules, while also updating practices and procedures to comply with impending new health plan rules enacted in March as part of sweeping Health Care Reform legislation.

The more than 220 page Notice of Proposed Rulemaking (NPRM) proposes to revise the existing Standards for Privacy of Individually Identifiable Health Information (Privacy Rule); the Security Standards for the Protection of Electronic Protected Health Information (Security Rule); and the rules pertaining to Compliance and Investigations, Imposition of Civil Money Penalties, and Procedures for Hearings (Enforcement Rule) issued under HIPAA.

Stay tuned to Solutions Law Press for additional updates and a future briefing on these proposed changes and other developments affecting HIPAA and other health plan and human resources matters. In the meanwhile, you can find other updates and information about HITECH Act and other HIPAA Privacy & Security regulatory and enforcement developments in prior Solutions Law Press updates such as such as HIPAA Heats Up: HITECH Act Changes Take Effect & OCR Begins Posting Names, Other Details Of Unsecured PHI Breach Reports On Website.

Register Now For July 9, 2010 Virtual Briefing On Affordable Care Act Health Plan Guidance

In recent weeks, the U.S. Departments of Health and Human Services, Labor and Treasury (the “Agencies”) jointly released an advanced copy of interim final rules (the “Rules”) implementing several key new health coverage mandates enacted as part of the Patient Protection and Affordable Care Act (“Affordable Care Act”). The guidance implements impending requirements of the Affordable Care Act scheduled effective for most plans beginning with the first plan year after September 22, 2010.

To assist concerned business leaders, plan fiduciaries and plan administrators to understand and cope with these new rules, Solutions Law Press author Cynthia Marcotte Stamer will host a teleconference briefing on these new regulations and other Affordable Care Act health plan guidance on July 9, 2010 from Noon. to 1:30 p.m. Central Time. To register or for other details, see here.

About Ms. Stamer

The author of numerous highly regarding publications on HIPAA and other related matters, Ms. Stamer works extensively with employer and other health plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on health benefit program and product design, documentation, administration, compliance, risk management, and public policy matters. The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns for the ABA, the Bureau of National Affairs and many other organizations. Please join us for what promises to be a most interesting discussion.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Office of Civil Rights Proposes Changes To HIPAA Privacy, Security & Civil Sanctions Rules | Affordable Care Act, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, HIPAA | Permalink
Posted by Cynthia Marcotte Stamer

Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny

June 29, 2010

Employers using independent contractors, leased employees or other non-employee workers should carefully review the defensibility of their existing classification and treatment of those workers under tax, labor, employment, employee benefit and other laws in light of stepped up interest and scrutiny by Congress and regulators.

On June 17, 2010, the Senate Committee on Health, Education, Labor, and Pensions held hearings on pending legislation intended to prevent employers from misclassifying workers as independent contractors to avoid paying minimum wage or overtime or other legal protections due employees under the Fair Labor Standards Act (FLSA).

The Employee Misclassification Prevention Act S.3254/H.R.5107 seeks to reduce misclassification errors by amending the Fair Labor Standards Act:

Requiring employers to keep accurate records of each workers’ status;
Clarifying it’s a violation of the Fair Labor FLSA to misclassify workers;
Increasing fines for misclassification under the FLSA;
Requiring employers to notify workers if the employer classifies them as an employee or independent contractor;
Creating an “employee’s rights website” containing relevant information concerning state and federal wage and hour issues; and
Protecting workers against discrimination or retaliation for requesting proper classification will be protected.

In addition to proposed changes to the FLSA, Congress also is looking at legislation that would tighten worker classification rules under other laws. For instance, the Taxpayer Responsibility, Accountability and Consistency Act of 2009 H.R.3408/ S.2882 would target perceived worker misclassification employment and income tax withholding and reporting abuses by amending the Internal Revenue Code to:

Require reporting to the Internal Revenue Service (IRS) of payments of $600 or more made to corporations;
Define criteria and rules relating to the treatment of workers as employees or independent contractors;
Increase penalties for failure to file correct tax return information or comply with other information reporting requirements; and
Require the Secretary of the Treasury to issue an annual report on worker misclassification.

Other proposed legislation would tighten requirements and oversight of the use of independent contractors and other non-employee workers under OSHA and various other federal laws.

While Congress tightens even tighter requirements, regulators are stepping up their scrutiny of employer practices for classifying workers under existing laws. Under a National Research Program announced last September, the Internal Revenue Service has begun conducting the first of approximately 6,000 payroll tax audits that it plans to complete over a three-year period focusing on the appropriateness of employer worker classification and other payroll tax practices.

To guard against these and other growing risks of worker classification, employers should review within the scope of attorney-client privilege the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies and consult with qualified legal counsel about the advisability to adjust these practices to mitigate exposures to potential IRS, Labor Department or other penalties associated with worker misclassification.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer recently was a featured panelist on the ABA Joint Committee on Employee Benefits Teleconference on “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” and has worked, published and spoken extensively on worker classification and other related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny | ADA, Affirmative Action, Corporate Compliance, E-Verify, EEOC, Employee Benefits, Employers, Employment Tax, Government Contractors, Health Plans, Human Resources, I-9, Immigration, Income Tax, Internal Controls, Internal Investigations, Leave, Military Leave, OFCCP, OSHA, Payroll Tax, Rehabilitation Act, Retaliation, Safety, Tax, Unemployment Benefits, USERRA, VEVRRA, Wage & Hour, Whistleblower | Tagged: Employee, Employment, Employment Tax, Fair Labor Standards Act, Independent Contractor, Minimum Wage, Tax, Worker Classification | Permalink
Posted by Cynthia Marcotte Stamer

Key Affordable Care Act Health Plan Coverage Mandates Guidance Issued June 28; Apply ASAP For Early Retirement Reinsurance Program

June 29, 2010

The Department of Health and Human Services (HHS) Office of Consumer Information and Insurance Oversight (OCIIO) today (June 29, 2010) began accepting applications for the Early Retiree Reinsurance Program (ERRP) established under the Patient Protection and Affordable Care Act (“Affordable Care Act”). Meanwhile, HHS and the Departments of Treasury and Labor Monday published new interim regulations implementing the Affordable Care Act’s group health plan preexisting condition, lifetime and annual limits, rescissions, and patient protections mandates (the “Rules”). These two key developments follow the Agencies release of guidance about the Affordable Care Act’s grandfather provisions and other guidance on the Affordable Care Act’s group health plan rules.

Early Retiree Reinsurance Program

Created by the Affordable Care Act as a bridge to the new health insurance marketplace established by the Exchanges in 2014, this $5 billion program temporarily will reimburse employers, unions, state and local governments, and nonprofits admitted to the program for a portion of claims paid for early retirees.

The Early Retiree Reinsurance Program will reimburse employers admitted to the program for 80 percent of medical claims costs between $15,000 and $90,000 paid for retirees age 55 and older who are not eligible for Medicare, and their spouses, surviving spouses, and dependents. Employers, including state and local governments and unions, who provide health coverage for early retirees are eligible to apply. Program participants will be able to submit claims for medical care going back to June 1, 2010.

Today is the first day HHS is accepting applications. Applications for the program, as well as fact sheets and application assistance can be found here.

Key Guidance On Affordable Care Act Health Plan Coverage Mandates Issued Monday

On Monday, June 28, 2010 HHS, Labor and Treasury (the “Agencies”) jointly published interim final rules implementing the Affordable Care Act’s Rules on preexisting conditions, coverage rescissions, lifetime and annual dollar limits for essential benefits, and patient choice/access of providers. See Regulation, Fact Sheet, Patient Protection Model Notice, Lifetime Limits Model Notice and Dependents Model Notice

The Rule implements and interprets the Affordable Care Act’s restrictions on the use by that group health plans and individual and group health insurance coverage (“health plans”) which generally:

Prohibit preexisting condition exclusions and limitations for children under age 19;
Prohibit arbitrary insurance coverage rescissions;
Prohibit lifetime dollar limits on essential benefits;
Restrict annual dollar limits on essential benefits;
Protect certain choice of physician rights of plan members; and
Prohibit certain restrictions on emergency services.

Certain plans qualifying as “grandfathered” for purposes of the Affordable Care Act may qualify as exempt from these requirements.

The Rule is the latest in a series of recently-issued guidance implementing various health coverage requirements of the Affordable Care Act. It follows closely the publication by the Agencies of regulations about:

When group health plans and insurance qualify as “grandfathered plans” for purposes of determining deadlines for complying with certain health care reform requirements imposed under the Patient Protection & Affordable Care Act (Affordable Care Act). See Fact Sheet, Regulation, FAQs, Table, and Model Notice;
Extension of Coverage For Adult Children see Fact Sheet, Regulation, FAQs and IRS Guidance; and IRS Guidance on Tax-Free Employer-Provided Health Coverage Now Available for Children under Age 27, see here;
FAQs on Health Care Reform and COBRA;
IRS Issues Regulations on 10-Percent Tax on Tanning Services Effective July 1, see here;
IRS Guidance On Special Tax Incentives for Small Businesses to Provide Health Care, Hire New Workers, see here, here, here and here.

Register Now For July 9 Teleconference To Catch Up On New Affordable Care Act & Other 2010 Health Plan Changes

Learn more about this and other Affordable Care Act requirements and how it will impact your group health plan by registering to participate in a special Solutions Law Press teleconference briefing on this and other emerging Affordable Care Act group health plan guidance to be conducted by Cynthia Marcotte Stamer on July 9, 2010 from Noon. to 1:30 p.m. Central Time. To register or for other details, see here.

About Ms. Stamer

As a core focus of her practice, Ms. Stamer works extensively with employer and other health plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on health benefit program and product design, documentation, administration, compliance, risk management, and public policy matters. The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns for the ABA, the Bureau of National Affairs and many other organizations. Please join us for what promises to be a most interesting discussion.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

Comments Off on Key Affordable Care Act Health Plan Coverage Mandates Guidance Issued June 28; Apply ASAP For Early Retirement Reinsurance Program | Affordable Care Act, Corporate Compliance, Employee Benefits, Employers, ERISA, Excise Tax, Health Plans, Human Resources, Income Tax, Internal Controls, Patient Protection and Affordable Care Act, Payroll Tax, Tax, Wellness | Tagged: Affordable Care Act, Early Retiree Reinsurance Program, Health Plans, preexisting conditions | Permalink
Posted by Cynthia Marcotte Stamer

Key Guidance Issued About New Affordable Care Act Health Plan Requirements; Teleconference Briefing Planned July 9

June 24, 2010

This week (June 22, 2010), the U.S. Departments of Health and Human Services, Labor and Treasury (the “Agencies”) jointly released an advanced copy of interim final rules (the “Rules”) implementing several key new health coverage mandates enacted as part of the Patient Protection and Affordable Care Act (“Affordable Care Act”).

The Rule scheduled for publication in the Federal Register on June 28, 2010 will implement and interpret the Affordable Care Act’s restrictions on the use by that group health plans and individual and group health insurance coverage (“health plans”) which generally:

Prohibit preexisting condition exclusions and limitations for children under age 19
Prohibit arbitrary insurance coverage rescissions;
Prohibit lifetime dollar limits on essential benefits;
Restrict annual dollar limits on essential benefits;
Protect certain choice of physician rights of plan members; and
Prohibit certain restrictions on emergency services.

Certain plans qualifying as “grandfathered” for purposes of the Affordable Care Act may qualify as exempt from these requirements.

The Rule is the latest in a series of recently-issued guidance implementing various health coverage requirements of the Affordable Care Act. It follows closely the June 14, 2010 publication by the Agencies of regulations on when group health plans and insurance qualify as “grandfathered plans” for purposes of determining deadlines for complying with certain health care reform requirements imposed under the Patient Protection & Affordable Care Act (Affordable Care Act).

To review an advanced copy of the Rule see here. Read the accompanying Fact Sheet here.

About Ms. Stamer

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on Key Guidance Issued About New Affordable Care Act Health Plan Requirements; Teleconference Briefing Planned July 9 | Affordable Care Act, Employee Benefits, Employers, Health Care Reform, Health Plans, Human Resources, Insurance, Internal Controls | Tagged: Affordable Care Act, annual limits, Health Plans, lifetime limits, preexisting conditions, rescissions | Permalink
Posted by Cynthia Marcotte Stamer

Registration Open For July 9 In “Affordable Care Act & Other Federal Health Plan Guidance Update”

June 23, 2010

Solutions Law Press Invites You To Learn What You Must Do Now To Meet Key Affordable Care Act Health Plan Deadlines

Affordable Care Act & Other Federal Health Plan Guidance Update

July 9, 2010 Teleconference – Noon to 1:30 P.M. Central Time

Solutions Law Press invites you to catch up on the latest guidance on new requirements that group health plans must meet under the Affordable Care Act and other emerging federal health plan regulations by participating in the “Affordable Care Act & Other Federal Health Plan Guidance Update” teleconference to be conducted by attorney Cynthia Marcotte Stamer on Friday, July 9, 2010 from Noon to 1:30 P.M. Central Time for a registration fee of $50.00. To register for this program, see here,

Affordable Care Act Requires Prompt Action By Group Health Plans & Employers

The combined package of comprehensive health care reform legislation enacted by Congress this Spring through the Patient Protection and Affordable Care Act (Public Law 111-148) as amended by the Health Care and Education Reconciliation Act (Public Law 111-152) (collectively referred to as the “Affordable Care Act”) will require most employers, employment-based group health plans, plan sponsors, plan fiduciaries, plan administrators and other service providers and insurers take prompt action to meet compliance deadlines and preserve other options over the next several months. Employer and other group health plan sponsors, fiduciaries, insurers and administrators must act quickly to update their health plan documents, communications and practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years. Quick action also may be needed to claim small employer tax credits, retiree medical subsidies or other benefits.

July 9 Briefing Provides Key Information

The July 9, 2010 “Affordable Care Act & Other Federal Health Plan Guidance Update” teleconference will include an update on the latest regulatory guidance about impending Affordable Care Act group health plan rules and other key information to help employers, group health plans, plan administrators and fiduciaries and others working with these plans to understand and respond to these new requirements.

The briefing will cover:

Key elements of Affordable Care Act reforms impacting employment-based health plans
Impending Affordable Care Act deadlines for employment-based group health plans and their sponsors during 2010 or 2011
Update on guidance on grandfathered plan status meaning, qualification and disqualification
Update on guidance on new dependent child coverage extension rules
Update on guidance on early retiree medical reinsurance program
Update on guidance on new small employer health coverage tax credit
Update on other recent and pending Affordable Care Act group health plan rule guidance
Tips to coordinate Affordable Care Act and other federal group health plan mandate compliance
Practical strategies for responding to new requirements and changing rules
Participant questions

About The Presenter

The program will be presented by attorney Cynthia Marcotte Stamer. With more than 23 years of experience advising employers, group health plans, plan fiduciaries, plan administrators and vendors, insurers and others about health plan and managed care matters, Ms. Stamer is nationally known for her work, publications and presentations on health plan and other employee benefit, health care and insurance matters. Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Committee, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises employers, health plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes and speaks extensively on these and other health and managed care program concerns and practices. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or publications, contact Ms. Stamer at (469) 767-8872 or via e-mail here, or see here.

Other Helpful Resources & Other Information

If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources of Ms. Stamer here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Registration Open For July 9 In “Affordable Care Act & Other Federal Health Plan Guidance Update” | Affordable Care Act, ARRA, COBRA Subsidy, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Health Plans, Human Resources, Income Tax, Insurance, Internal Controls, Patient Protection and Affordable Care Act, Payroll Tax, Stimulus Bill, Tax | Permalink
Posted by Cynthia Marcotte Stamer

HHS, DOL & IRS Rules Define “Grandfathered” Group Health Plans & Health Insurance Coverage under Affordable Care Act

June 15, 2010

Affordable Care Act Health Plan Guidance Update Teleconference Briefing Planned July 9

The U.S. Departments of Health and Human Services, Labor and Treasury on Monday (June 14, 2001) published regulations on when group health plans and insurance qualify as “grandfathered plans” for purposes of determining certain deadlines for complying with certain health care reform requirements imposed under the Patient Protection & Affordable Care Act (Affordable Care Act).

The regulations are the latest in a series of emerging guidance that federal agencies have issued regarding the Affordable Care Act since its enactment in March, 2010. Solutions Law Press author Cynthia Marcotte Stamer will host a teleconference briefing on these new regulations and other Affordable Care Act health plan guidance on July 9, 2010 from 11:30 a.m. to 1:30 p.m. Central Time. E-mail here to request an invitation and registration information.

While the Affordable Care Act generally will require that all health plans provide new mandated benefits and other rights to covered persons beginning with plan years starting after September 22, 2010, health plans that existed on March 23, 2010 that qualify as “grandfathered” are exempt from some new requirements. The regulation published yesterday specifies what health plans must do to qualify for grandfathered status for purposes of these requirements.

As part of its first wave of health insurance reforms, the Affordable Care Act dictates that all health plans – whether or not they are grandfathered plans – provide certain benefits to their covered persons for plan years starting on or after September 23, 2010 including:

New restrictions on lifetime limits on essential benefit coverage;
No rescissions of coverage when people get sick and have previously made an unintentional mistake on their application; and
Extension of parents’ coverage to young adult children under 26 years old.

For post September 22, 2010 plan years, non-grandfathered plans also generally must meet certain other conditions including:

No coverage exclusions for children with pre-existing conditions;
No “restricted” annual limits set by regulations to be issued in the future;
Coverage of recommended prevention services with no cost sharing;
Patient protections such as access to OB-GYNs and pediatricians without a referral by a separate primary care provider;
Greater freedom for patients to obtain certain emergency treatment without certain plan restrictions; and
Other requirements.

Under the Affordable Care Act, grandfathered plans are exempt from certain of these mandates and may enjoy delayed compliance deadlines for certain other requirements.

The grandfather rule published June 14 provides certain “routine changes” will not cause a health plan that existed on March 23, 2010 to give up grandfathered status. Allowable changes include cost adjustments to keep pace with medical inflation, adding new benefits, making modest adjustments to existing benefits, voluntarily adopting new consumer protections under the new law, or making changes to follow State or other Federal laws. For this purpose, the regulation states that premium changes are not taken into account when determining whether or not a plan is grandfathered.

On the other hand, the regulation provides that a health plan that existed on March 23, 2010 will lose its eligibility for grandfathered status if the plan is amended to make significant changes that cut benefits or increase costs to covered persons.

Furthermore the regulation also addresses the effect of mergers and acquisitions and various other events and amendments on the eligibility of health plans for grandfathered status.

You can view the regulation here. Details about what routine changes insurers and employers can make without losing their grandfathered status, and the projected impact on large and small employer plans and the individual plan market can be found here. A fact sheet about the regulation can be found here. You can read the Questions and Answers on the Regulation here.

If you need help reviewing or responding to this or other health benefit regulations or other related matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

About Ms. Stamer

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on HHS, DOL & IRS Rules Define “Grandfathered” Group Health Plans & Health Insurance Coverage under Affordable Care Act | Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Insurance, Internal Controls, Patient Protection and Affordable Care Act, Wellness Programs | Tagged: Affordable Care Act, ERISA, Grandfathered Plans, Health Care Reform, Health Plans, Insurance | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks On “Designing Legally Defensible Wellness Programs That Work Amid Changing Federal Regulations” On June 10 in Dallas

May 25, 2010

The D/FW International Society of Certified Employee Benefits Specialists invites members and other interested persons learn about “Designing Legally Defensible Wellness Programs That Work Amid Changing Federal Regulations” from Cynthia Marcotte Stamer schedule on June 10, 2010 at Haggar Clothing Co., 11511 Luna Road, Dallas TX 75234.

Changing federal regulations create new challenges, risks and opportunities for employers and health plans in designing legally defensible wellness programs that work. Attorney and consultant Cynthia Marcotte Stamer will share:

An update on evolving employment-based wellness program requirements under the Affordable Care Act, GINA, ADA, HIPAA, and other core federal laws and regulations
What employers and health plans can and can’t do when implementing wellness programs
Legal “gray areas” and other risk traps for employers and health plans to watch and
Pointers for designing and administering these programs.

Advanced registration required. For registration fees and arrangements or other information, contact David W. West, CLU, CEBS, DFW ISCEBS Chapter Administration at (972) 744-2328 (direct), (972) 808-3174 (fax) or davidw@gpatpa.com (E-mail).

About the Speaker

The creator of the PlayForLife™ Wellness Program, the Patient Empowerment Toolkit™ and a wide range of other practical health and benefit management tools and programs, Ms. Stamer is a highly regarded legal advisor and consultant, author and speaker, nationally and internationally recognized for her cutting edge work and leadership with employers, health plans, health care organizations, schools, civic organizations and governments on the design, implementation, administration and defend legally defensible employee and community health, injury prevention and disease management; employee and patient health education and empowerment; managed care and other health and wellness; employee benefit and human resources, insurance, education, and other programs, practices, products and policies.

Chair of the American Bar Association (ABA) RPTE Employee Benefits and Other Compensation Group, a member of the leadership council of the ABA Joint Committee on Employee Benefits (JCEB), Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and Board Certified In Labor and Employment Law, Ms. Stamer has 23 plus years legal and operational experience assisting these and other clients design, implement and operate health and wellness, disease management, disability and absence management, and other related workforce, benefit and insurance, and health care programs, practices, products and technologies.

Founder and Executive Director of the Coalition for Patient Empowerment (COPE) and the Coalition for Responsible Health Policy, former member of the National Kidney Foundation of North Texas Board of Directors, past-President of the Board of the Richardson Development Center for Children, and a founding Board Member of the Alliance for Excellence, Ms. Stamer also has extensive experience designing and managing the implementation of a wide range of wellness, health promotion and other related programs in a diverse range of contexts including electronic, on site and offsite health and wellness clinics, health screening programs, occupational health, health education, disease management and other programs.

The publisher and editor of Solutions Law Press, Ms. Stamer also is a popular speaker and widely published author who regularly conducts management and other training on wellness, health benefit and a wide range of other employee benefit, human resources, health care, insurance and other topics. Her hundreds of highly regarded writings are published by the American Bar Association, Aspen Publishers, the Bureau of National Affairs (BNA), the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc. and many others. Her insights on health and human resources concerns have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Modern Health Care, Caring for The Elderly, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. She also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations.

For more information about Ms. Stamer’s credentials, publications, workshops and other training, and work, contact Ms. Stamer via telephone at 469.767.8872 or via e-mail at cstamer@solutionslawyer.net or see CynthiaStamer.com.

About The Sponsor

The Dallas/Ft. Worth Chapter of ISCEBS is a non-profit organization dedicated to enhancing one’s career in employee benefits. Chapter membership is open to ISCEBS members (CEBS graduates and GBA and RPA designees), and students of the CEBS program. Attendance at educational programs is open to everyone. More information about the local chapter and directions to the meeting are available at http://www.dfwiscebs.org.

Comments Off on Stamer Speaks On “Designing Legally Defensible Wellness Programs That Work Amid Changing Federal Regulations” On June 10 in Dallas | Employee Benefits, Employers, Employment Tax, ERISA, Health Plans, Human Resources, Insurance, Tax, Uncategorized, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks June 9 On “Health Care Reform’s Implications For Employers, Health Plans & Employee Benefits Practitioners” In Houston

May 19, 2010

Cynthia Marcotte Stamer will discuss “Health Care Reform’s Implications for Employers, Health Plans and Employee Benefits Practitioners” at the June 9, 2010 meeting of Houston WEB. The program is scheduled for Wednesday, June 9, 2010 at the DoubleTree Guest Suites, 5353 Westheimer, Houston, Texas from 11:30 a.m. to 1:30 pm.

Narrowly passed by Congress in March after a year of contentious debate, the comprehensive health care reform legislation imposes a complex array of reforms impacting employment based health plans, employers, and the insurers and other vendors and administrators of these programs. Ms. Stamer will explore key elements of these reforms impacting employers and employment based health coverage and their implications for employers, employment based health plans, and employee benefits and other attorneys providing advice about these arrangements.

To register or for more information about this event, see here. If you need assistance reviewing or responding to these or other employee benefit, compensation or labor and employment concerns, contact the author of this update, Cynthia Marcotte Stamer, for assistance at (469) 767-8872 or here.

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping businesses manage labor and employment, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters including significant, cutting edge experience advising employer and other health plan sponsors, fiduciaries, insurers, administrators and others design, administer, and defend defensible, cost-effective health and other employee benefit programs.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on Stamer Speaks June 9 On “Health Care Reform’s Implications For Employers, Health Plans & Employee Benefits Practitioners” In Houston | Affordable Care Act, CHIP, COBRA, COBRA Subsidy, Corporate Compliance, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, FMLA, HIPAA, Human Resources, Insurance, Internal Controls, Medicare Part D, Mental Health, Mental Health Parity, Payroll Tax, Prescription Drugs, Privacy, Protected Health Information, Public Policy, Risk Management, Tax, Uncategorized, Wellness, Wellness Programs | Tagged: Affordable Care Act, Employee Benefits, Employers, ERISA, Fiduciary, Health Care Reform, Health Insurance, Health Plan, Health Plans, Insurer | Permalink
Posted by Cynthia Marcotte Stamer

Defined Contribution Plans Investing In Publically Traded Employer Securities Face New Requirements

May 19, 2010

Employer and other sponsors, fiduciaries and administrators of 401(k) and other defined contribution pension plans that hold publically traded employer securities should review and update their plan documentation, communications and practices in response to new Internal Revenue Service (IRS) final regulations implementing new investment diversification requirements for these programs under Internal Revenue Code (Code) § 401(a)(35) and Employee Retirement Income Security Act (ERISA) § 204(j), as amended by the Pension Protection Act of 2006.

The new regulations for defined contribution plans investing in publically traded employer securities took effect immediately today (May 19, 2010) upon their publication here in the Federal Register.

Covered defined contribution plans generally will be required to comply with these new regulations beginning by the first plan year beginning after December 31, 2010 to maintain qualified status under Code § 401(a) and to comply with ERISA.

If you need help reviewing or responding to these new regulations or addressing other employee benefit, compensation or labor and employment concerns, contact the author of this update, Cynthia Marcotte Stamer at (469) 767-8872 or here

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping businesses manage labor and employment, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters including significant, cutting edge experience advising employer and other health plan sponsors, fiduciaries, insurers, administrators and others design, administer, and defend defensible, cost-effective health and other employee benefit programs.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Recent Updates and Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on Defined Contribution Plans Investing In Publically Traded Employer Securities Face New Requirements | Corporate Compliance, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Retirement Plans, Uncategorized | Tagged: 401(k) Plan, defined contribution plan, employer securities, ERISA, Fiduciary Responsibility, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

CBO Raises Estimated Cost of Health Care Reforms As Employers, Health Plans Brace Costs Of Newly Effective & Impending Mandates

May 15, 2010

By Cynthia Marcotte Stamer

New analysis released Tuesday, May 11 by the non-partisan Congressional Budget Office shows H.R. 3590, the Patient Protection and Affordable Care Act, Public Law 111-148 (Health Care Reform Law) passed in March will cost $115 Billion more than originally estimated in the CBO’s March 15, 2010 discretionary spending analysis. News of the cost estimate increase comes as U.S. employer and other health plan sponsors, insurers and others are bracing for the first wave of new federal health plan mandates enacted as part of the Health Care Reform Law to take effect in September and a host of other federal mandates previously enacted that take effect in the 2009 and 2010 plan years.

Projected Cost of Health Care Reform Increased

According to CBO, additional information about the potential effects of the Health Care Reform Law on spending funded through the annual appropriation process (discretionary spending). By their nature all such potential effects on discretionary spending are subject to future appropriation actions, which could result in greater or smaller costs than the sums authorized by the legislation. While still limited in certain respects, the updated CBO analysis provides information on the major components of such costs in three general categories:

The costs that will be incurred by federal agencies to implement the new policies established by the Health Care Reform Law, such as administrative expenses for the Department of Health and Human Services and the Internal Revenue Service for carrying out key requirements of the legislation.
Explicit authorizations for future appropriations for a variety of grant and other program spending for which the act identifies the specific funding levels it envisions for one or more years. (Such cases include provisions where a specified funding level is authorized for an initial year along with the authorization of such sums as may be necessary for continued funding in subsequent years.)
Explicit authorizations for future appropriations for a variety of grant and other program spending for which no specific funding levels are identified in the legislation. That type of provision generally includes legislative language that authorizes the appropriation of “such sums as may be necessary,” often for a particular period of time.

According to the updated analysis, CBO estimates that total authorized costs in the first two categories probably exceed $115 billion over the 2010-2019 period. CBO still does not have an estimate of the potential costs of authorizations in the third category.

CBO previously issued an estimate of the Health Care Reform Law’s direct spending and revenue effects in combination with the Reconciliation Act of 2010 (Public Law 111-152), which amended it. (Direct spending effects are those that do not require subsequent appropriation action.) CBO estimated that those two laws, in combination, would produce a net reduction in federal deficits of $143 billion over the 2010-2019 period as a result of changes in direct spending and revenues.

Impending Federal Health Plan Mandate Changes Bring New Costs, Risks Now

CBO’s adjustment to its cost projections comes as U.S. employers and insurers already are bracing to cope with a host of new federally imposed health plan mandates and accompanying costs that already have or will in the next 12-months impact their existing health benefit programs. Examples of these new mandates include:

COBRA Stimulus Bill Premium Subsidy and Other Mandates
New FMLA and USERRA Coverage Continuation Mandates
Dependent Care Coverage Extension Mandates For Students Requiring Medical Leave Effective
Genetic and Other Disability Discrimination Mandates under GINA, ADA Amendments Act of 2008, HIPAA Portability and Other Federal Mandates
Expanded Mental Health Parity Mandates
HIPAA Data Breach and Other Protected Health Information Privacy and Data Security Mandates
New IRS Excise Tax Self-Assessment & Reporting Mandates For Plans Violating COBRA, Mental Health Parity and Wide Range of Other Federal Mandates
Changes To Retiree Medical Subsidy Rules
Early Retiree Medical Reinsurance Program For Employers Providing Qualifying Retiree Coverage
New Small Employer Tax Credit Rules
Mandated extension of dependent coverage to age 26
Prohibition of Pre-Existing Condition Limits on Dependent Coverage
New restrictions on annual and lifetime benefit limitations
Mandate to cover 100% of preventative care
Prohibition against coverage rescissions
Primary Care Physician choice mandates
Restrictions on coverage limitations for emergency and obstetrical care
Extension of Internal Revenue Code Section 105(h) nondiscrimination mandates to certain insured health plans
Many others

Employer and other health plan sponsors, their insurers, administrators and others responsible for updating and administering group and other health plans must move immediately to meet these evolving mandates while bracing for anticipated increased costs and other obligations expected to result as the Health Care Reform Law takes effect over the next few years. Employers, administrators and insurers needing additional information about these changes can review the resources and training materials available here and/or contact the author of this update, attorney and consultant Cynthia Marcotte Stamer, for assistance at (469) 767-8872 or here

Responsible & Prompt Action Needed

Employer and other health plan sponsors, administrators, fiduciaries and insurers both should act quickly to update their programs, plan documents, communications and practices to comply with federal mandates that have and are scheduled to take effect and stay involved with regulators and Congress as the regulatory rules and processes to implement the Health Care Reform Law are developing. Ultimately, the cost and other implications of the Health Care Reform Law will depend largely upon how its provisions are construed and implemented by federal and state regulators, along with any subsequent adjustments, if any that Congress may elect to enact. With federal officials hard at work preparing implementing regulations and other guidance and procedures, health industry leaders and other concerned Americans should stay informed and continue to share their input on these critical issues as these decisions are shaped. Join the discussion by participating in the Coalition For Responsible Health Care Policy linked in group and/or its subgroup, Project COPE: Coalition for Patient Empowerment and/or register to receive updates Coalition for Responsible Heath Care Policy by RSS Feed.Coalition for Responsible Health Care Policy Coalition for Responsible Health Care Policy Coalition for Responsible Health Care Policy

The author of this update, Cynthia Marcotte Stamer, recently has conducted briefings on the implications of the Affordable Care Act and other regulatory changes impacting health plans and their employer and other sponsors, insurers, administrators and others for the Society of Professional Benefits Administrators, the Dallas Bar Association and others. Several other presentations and update are scheduled in the upcoming months. For information about these programs or to register to receive information about these programs, see here.

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 22 years of work helping businesses manage labor and employment, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters including significant, cutting edge experience advising employer and other health plan sponsors, fiduciaries, insurers, administrators and others design, administer, and defend defensible, cost-effective health and other employee benefit programs.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, Vice President of the North Texas Health Care Compliance Professionals Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, American Health Lawyers Association (AHLA), Health Care Compliance Association, Institute of Internal Auditors, Harris County Medical Society, the Medical Group Management Association, Society for Professional Benefits Administrators, Southwest Benefits Association, Harris County Medical Society, Medical Group Management Association, Society of Human Resources Management, and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on CBO Raises Estimated Cost of Health Care Reforms As Employers, Health Plans Brace Costs Of Newly Effective & Impending Mandates | Affordable Care Act, ARRA, CHIP, COBRA, COBRA Subsidy, Disease Management, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, family leave, Fiduciary Responsibility, FMLA, GINA, H.R. 4872, Health Plans, HIPAA, Human Resources, Income Tax, Leave, medical leave, Medicare Part D, Mental Health, Mental Health Parity, Military Leave, Payroll Tax, Prescription Drugs, Privacy, Protected Health Information, Public Policy, Risk Management, Stimulus Bill, Tax, Uncategorized, Wellness | Tagged: Affordable Care Act, dependent coverage, Employer, Health Care Reform, Health Plans, Insurer, Mental Health Parity, preexisting condition | Permalink
Posted by Cynthia Marcotte Stamer

Join Project COPE: Help Develop Real Tools To Meaningfully Empower Patients & Improve Health Care Access, Affordability & Quality

May 15, 2010

With all the recent debate about health care policy reforms, it is important to keep the focus on the practical needs of patients and their families in dealing with an illness or disability, and simple steps that health care providers, employers, insurers and other payers, churches and other community organizations, and regular people can do to meaningfully help patients and their families effectively access and pay for care and meet other related challenges attendant to illness and disabilities.

No easy, one-size fits all cure exists to help patients and their families deal with illness or disability. Paying for care is only a small part of the health care challenge for any patient and his or her family. The good news is that health treatment and disease management advances increasingly are converting once deadly illnesses and disabilities into chronic conditions. The challenge is that patients living with these conditions often survive with ongoing (often expensive) medical treatments, work-life adjustments and other continuous partial but imperfect fixes that come at great financial, productivity and personal costs to themselves, their families and society. The government and its public policies can’t change this anymore than the patients, families, employers, friends and communities that live and deal with these patients. Indeed, the process of reform and the confusion it will foster is likely to create new complications in the upcoming years.

Consequently, to make any real and meaningful difference in the empowerment of patients and the mitigation of the financial and other challenges that patients and their families, health care providers, employer and other business and community leaders, health plans, insurers and others experience in dealing with ill or disabled person starts with recognition of basic realities of illness and disabilities and pursuing the many small practical opportunities to mitigate these challenges, including the following:

No One Easy Fix; Just Many Small Ones

Being old or being sick (or having a loved one who is) stinks. Not everyone was born with a BMW for a body and even some BMW’s are lemons. Even for a car, there isn’t always a clear “evidence based” answer to the unavoidable “why me/us” questions every patient and their family must face. However, the answers to these and other tough questions often are must less clear and more intractable for patients and their families:

What’s wrong with this body?
Can it be fixed and if so, how do I fix it?
If it can’t be fixed, what do I do?
How do I pay for the fix? How do I find the money and other resources?
How do we keep working and keep pursuing the cure at the same time?
I am scared, lonely, confused, tired, hurting, alone, uneducated, unemployed, etc.

Money only can do so much to fix or mitigate the experience of being ill, old or disabled and there isn’t enough money to pay for all the fixes that exist for those people with broken or aging body parts. While dollars play a critical role in a patient’s ability to access certain resources, it can only partially answer these questions. All patients and their families still struggle to deal with these intractable questions.

Communication & Understanding Key Tools

The best way to get Americans to make better choices about the health care they choose is to provide better communications and other tools to empower them with improved understanding needed to make better choices and better cope. Misunderstanding and miscommunications in the system fuel much pain and inefficiency.

When families and patients get good information that indicates that the $20,000 spent for a procedure will only cause a lot of suffering and expense to extend a life already suffering for another 48 hours, they usually chose quality of life over length of life.
Studies show that physicians and the RNs working with them agree in less than 70 percent of the times about the care ordered and how to administer it. Communication elsewhere among health care providers further erodes cost effectiveness and quality.
Government regulation and the tension that results from regulation and practices that break up health care teams makes this worse contributes to this problem.

Better communication and understanding between health care providers and the patients and their families and friends that help the patients will improve quality and efficiency of care.

All Americans need to be taught basic communication and coping skills to be better and more responsible health care patients, and effective health care buddies for their family and friends.
Providers need to communicate effectively with patients, family members, payers and each other. Patients and families need to learn to take responsibility to insist on answers to the questions they have that are necessary to meet their care needs.
Health plans, insurers and other payers need to communicate effectively with patients and their families, as well as health care providers about what coverage is being purchased, what is and is not covered, what must be done to qualify for coverage, care choices affecting coverage, and the availability of other alternatives when coverage is limited or not available.

Demographic Realities Ensure Inadequacy Of Funding

The aging population means that the gap between patients that need money for care and the available dollars to pay for care will continue to grow unless care is rationed in some way that limits or denies certain care to some ill, disabled or aging people. Decisions about rationing by necessity require individual specific, personal decision-making. Just because the most health care dollars are spent in the last months of life doesn’t mean that these dollars are necessarily wasted. The question should be what quality of life was realized for the dollars spent. This is a qualitative decision that is of necessity highly personal for each patient and his or her family. It cannot be fully accounted for or decided based on actuarial and accounting curves. Many old and sick people are extraordinary functional, valuable and important to someone.

Personal Responsibility For Self & Neighbor Best Investment

The most overlooked opportunities for quality and cost improvements rest with the people in health care:

The patients, their families and friends
Health care providers
Employers, churches, social organizations and other community organizations and resources that deal with patients and their families;
Health plans, insurers, and others that administer care; and
Others that encounter patients and their families.

Caring for ourselves, our families, our friends and others in our community is our right, our privilege and our job. The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans. The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch. Americans can best improve health care for ourselves, our loved ones, our friends and Americans generally by stop waiting for someone else to do it. Noone is better qualified to care about your loved ones than you. Do what you can and celebrate what you can do. Speak up, step up and help bridge the gap when you or your organization can do so by extending yourself a little bit. Speak up to help communicate and facilitate when you can. Building health care neighborhoods filled with good neighbors throughout the community is the key.

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

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources.

Other Helpful Resources & Other Information

We hope that this information is useful to you. You can access information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,” using the “PlayForLife” resources to organize low cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can access other recent updates and other informative publications and resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

Comments Off on Join Project COPE: Help Develop Real Tools To Meaningfully Empower Patients & Improve Health Care Access, Affordability & Quality | Absenteeism, Affordable Care Act, Disease Management, Employee Benefits, Employers, ERISA, family leave, Health Plans, Human Resources, Insurance, Internal Controls, Leave, medical leave, Pandemic, Public Policy, Risk Management, Safety, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Unemployment, COBRA Premium Subsidy Temporarily Extended As Congress Mulls Passing Longer Relief

April 16, 2010

April 16, 2010

The Continuing Extension Act of 2010 (H.R. 4851) signed into law yesterday (April 15, 2010) extends federal unemployment benefits and the COBRA premium subsidy program while Congress continues to debate. While Congress continues to debate whether to adopt a longer term extension of these programs, employers and group health plans will have to scramble again to send out required notifications and handle other details required to comply with this latest temporary extension to these benefits. Transitional relief included in the bill requires action again by group health plans and/or sponsoring employers, who again must tell former employees and their dependents of the retroactively granted relief.

Among other things, H.R. 4851:

Extends the period unemployed individuals may file applications for Federal Emergency Unemployment Compensation (EUC) from April 5, 2010 to June 2, 2010
Extends from September 4, 2010 to November 6, 2010 the period which individuals may claim and be paid EUC and also the period that individuals can qualify for the Federal Additional Compensation (FAC), (the extra $25 per weekly benefit amount on state and federal unemployment compensation)
Extends the period the federal government will provide 100% reimbursement for weeks of regular federal extended benefit payments from April 5, 2010 to June 2, 2010, with the state option to continue the benefit extension period from September 4, 2010 to November 6, 2010
Extends the eligibility period for the COBRA health insurance 65% subsidy for qualifying individuals who have lost employment based health coverage due to an employment loss through May 31, 2010 and provides transition relief for individuals who lost their jobs between March 31, 2010 and April 15, 2010

Yesterday’s short-term extension is the latest in a series of short-term emergency extensions of special unemployment benefit and COBRA premium subsidies originally enacted in February, 2009 under the American Recovery & Reinvestment Act of 1990. Even as it passed the short-term extension of this relief in H.R. 4851, Congress continues to consider legislation that would provide for a longer extension of unemployment and COBRA premium subsidy benefits. H.R. 4213, for instance, would extend benefits through the end of 2010.

The COBRA premium subsidy and other recent employment and employee benefit developments will be among the topics that attorney Cynthia Marcotte Stamer will be discussing during her upcoming “Legal Update on Employment Law” presentations at the “Barnstorm 2010: Creating an Effective Leaders-Tools of the Trade” management training that the Texas Society for Healthcare Human Resources Administration and Education (TSHHRAE) will be hosting for health industry human resources and other managers in five Texas cities between April 26 and April 30, 2010. For registration and other information about the Barnstorm Program, see here.

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is nationally recognized for more than 22 years of work with health industry and other organizations on labor and employment, staffing and credentialing, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, Vice President of the North Texas Health Care Compliance Professionals Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Update, the Solutions Law Press Health Care Update, and Solutions Law Press Health Care Privacy & Technology Update, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, American Health Lawyers Association (AHLA), Health Care Compliance Association, Institute of Internal Auditors, Harris County Medical Society, the Medical Group Management Association, SHRM, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Spencer Publications, World At Work, SHRM, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s health care experience here, and employment experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on Unemployment, COBRA Premium Subsidy Temporarily Extended As Congress Mulls Passing Longer Relief | Employee Benefits, Employers, Employment Tax, ERISA, Health Plans, Human Resources, Payroll Tax, Restructuring, Risk Management, Tax, Unemployment Benefits, Unemployment Insurance | Permalink
Posted by Cynthia Marcotte Stamer

TSHHRAE Provides Health Industry HR & Other Managers Employment Law Update & Other Timely Management Training At April Barnstorm 2010: Creating Effective Leaders Programs

March 23, 2010

Get Details & Registration Information here!

A “Legal Update on Employment Law” presented by Board Certified Labor & Employment Attorney Cynthia Marcotte Stamer is among 5 hours of “Barnstorm 2010: Creating an Effective Leaders-Tools of the Trade” management training that the Texas Society for Healthcare Human Resources Administration and Education (TSHHRAE) will be hosting for health industry human resources and other managers in five Texas cities between April 26 and April 30, 2010.

Interested health industry human resources and other managers can elect to participate in TSHHRAE’s Barnstorm 2010 management training at the following dates and locations:

April 26 – Weslaco, Knapp Medical Center
April 28 – Sweetwater, Rolling Plains Memorial Hospital
April 28 – Brenham, Trinity Medical Center
April 29 – Lubbock, University Medical Center
April 30 – Odessa, Medical Center Hospital

Update on Employment Law Program Highlights

Ms. Stamer’s Legal Update on Employment Law Program will address:

Recent changes in FMLA, Military Leave, wage and hour, ADA & other disability, COBRA, GINA, HIPAA and other selected federal & Texas employment laws and regulations;
Rising government enforcement of EEOC, HIPAA, wage & hour, worker classification, and other laws and regulations;
Recent developments and increases in retaliation claims;
Recent cases related to supervision; and
Other selected developments impacting health industry human resources management.

Other Barnstorm 2010 Program Highlights and Details

In addition to the Legal Update on Employment Law that Ms. Stamer is scheduled to present, the Barnstorm Program also will feature presentations on:

Leadership in 2010
Dealing with Poor Performers; and
Cultivating a Superstar

For registration and other information about the Barnstorm Program, see here.

About Ms. Stamer

Chair of the Curran Tomko Tarski Labor & Employment & Health Care Practice Groups, Vice President of the North Texas Health Care Compliance Professionals Association, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for more than 22 years of work with health industry and other organizations on labor and employment, staffing and credentialing, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters. The publisher of Solutions Law Press HR & Benefits Update, the Solutions Law Press Health Care Update, and Solutions Law Press Health Care Privacy & Technology Update and a former legal columnist for MD News, Ms. Stamer also is nationally and internationally recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the ABA, American Health Lawyers Association (AHLA), Health Care Compliance Association, Institute of Internal Auditors, Harris County Medical Society, the Medical Group Management Association, SHRM, Southwest Benefits Association and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Spencer Publications, World At Work, SHRM, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s health care experience here, and employment experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

If you need assistance with health industry human resources or other management, concerns, wish to inquire about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer at cstamer@cttlegal.com or 214.270.2402.

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

Comments Off on TSHHRAE Provides Health Industry HR & Other Managers Employment Law Update & Other Timely Management Training At April Barnstorm 2010: Creating Effective Leaders Programs | ADA, Affirmative Action, COBRA, Employee Benefits, Employers, ERISA, FMLA, Health Plans, HIPAA, Human Resources, Internal Controls, Military Leave, Rehabilitation Act, Retaliation, USERRA, VEVRRA, Wage & Hour, Whistleblower | Tagged: ABA, COBRA, Employment, FMLA, GINA, heatlh care, Labor, Retaliation, TSHHRAE | Permalink
Posted by Cynthia Marcotte Stamer

House Could Vote On Obama Health Care Reform Sunday

March 18, 2010

By Cynthia Marcotte Stamer

Time is running out for Americans to make their health care reform views known to key Congressional decision-makers. The stage now appears to be set for the House of Representatives to vote as early as Sunday on the Reconciliation Act of 2010 (H.R. 4872), the latest version of health care reform backed by President Obama, Speaker Nancy Pelosi and other key Congressional Democrats. The impending deadline means that Americans concerned about the potential outcome of the impending vote need to act quickly if they wish to attempt to influence the decision. For tips about sharing your input with Congress effectively, see Getting Your Health Care Reform Message Heard By Key Congressional Leaders.

Developments Today Start Clock Running For Vote

On Thursday, March 18, 2010, two key developments set the stage for a vote on H.R. 4871 as early as Sunday:

The House Rules Committee posted the text of H.R. 4872 on its website; and
The Congressional Budget Office (CBO) delivered its scoring of H.R 4872 to House Speaker Nancy Pelosi.

The delivery of CBO scoring started the clock running on the 72 hour mandatory period between the release of the CBO scoring and any final vote on the bill. This means the House could vote on H.R. 4872 as early as Sunday, March 21.

If passed by the House, H.R. 4872 would make sweeping changes to the U.S. health care system impacting virtually every American patient, health care provider, employer and taxpayer. To learn the facts about these proposed changes, read the full text of H.R. 4872 here.

According to the CBO, H.R. 4872 will cost $940 billion over 10 years to extend coverage to 32 million uninsured people. To learn more specifics about these CBO cost and other determinations, review the CBO scoring here.

This Is Only The Beginning: Stay Involved

The outcome of this latest health care reform push is only a small part of a continuing process. Whether or not the President’s proposal or some other version of health care reform passes this week, Congress already has and will continue to consider other legislation impacting health care reform. This reality is demonstrated by Congressional actions recently taken on the COBRA premium subsidy extension, Medical reimbursement for physicians, continuing federal efforts to develop and implement federal health care quality and technology standards, and other legislative, regulatory and enforcement actions taken while public attention has been focused largely only on the broader health care reform debate.

Upcoming mid-term elections will significantly impact the nature and scope of these upcoming efforts. Perhaps even more significantly, the enactment of legislation is only a beginning point. The real meaning of these or other health care reforms will be determined largely by the shaping and implementation of regulations and enforcement actions which generally are conducted outside the public eye. Monitoring and staying active in these ongoing processes provides a critical opportunity to continue to monitor your issues and provide input to shape how they are addressed.

To help stay informed about health industry and other developments and join the discussion about these and other health care reform proposals, concerned Americans are invited to join the Coalition for Responsible Health Care Reform Group on Linkedin and registering to receive these updates here.

If you need assistance evaluating or formulating comments on the proposed reforms contained in the House Bill or on other health industry matters please contact Cynthia Marcotte Stamer at cstamer@cttlegal.com or 214.270.2402.

Ms. Stamer has extensive experience advising and assisting employers, health industry, and health insurance clients and others about a diverse range of health care, employee benefit, and employment policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

Former Chair of the American Bar Association Health Law Section Managed Care & Insurance Interest Group and currently Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, a Council Representative to the ABA Joint Committee on Employee Benefits and Vice President of the North Texas Health Care Compliance Association, Ms. Stamer is nationally recognized for more than 22 years work with health care providers, managed care and other payers, employers, governments and other clients on health care, employee benefit, and other concerns. From her extensive involvement with federal and state legislative and regulatory health, pension and other reforms in the U.S. to her involvement as a lead advisor to the Government of Bolivia on its pension privatization legislation, Ms. Stamer’s experience includes significant experience working with clients domestically on key health care and other public policy matters. The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

You can review other publications and resources and additional information about the experience of Ms. Stamer here and learn more about other Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

Comments Off on House Could Vote On Obama Health Care Reform Sunday | Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, Human Resources, Insurance, Public Policy, Risk Management | Tagged: DME, Employers, ERISA, H.R. 4872, Health Care Reform, Health Plans, Hospitals, Medicaid, Medicare, Pharma, Physicians | Permalink
Posted by Cynthia Marcotte Stamer

Stamer To Speak About TPA & Other Plan Services Agreement Contracting Strategies For Managing Risks & Improving Effectiveness At 2010 Great Lakes Benefits Conference

March 13, 2010

Curran Tomko Tarski LLP Labor & Employment Practice Chair and Solutions Law Press Publisher Cynthia Marcotte Stamer will discuss “TPA & Other Plan Services Agreements- Managing Risks & Improving Effectiveness” At 2010 Great Lakes Benefits Conference to be held at the Wyndham Chicago Hotel on June 16-17, 2010.

Growing regulatory, fiduciary and other compliance risks magnify the importance of the careful negotiation and documentation of third party administration and other plan-related service agreements for plans, plan sponsors, plan fiduciaries and service providers. Careful credentialing, negotiation and documentation of administrative and other services relationships plays an increasingly key role in the ability of plan sponsors, plans, fiduciaries and service providers to allocate and efficiently manage plan operations, meet compliance obligations, and allocate and manage fiduciary and other legal risks.

Ms. Stamer’s workshop will examine key concerns like how administrative services contract terms, plan terms, the parties of actions and other factors help determine which parties are exposed to fiduciary and other liabilities; who is responsible for fiduciary, administrative, reporting and disclosure, bonding, indemnification and other responsibilities; and terms and processes that may help parties manage their relationships and legal risks by exploring some of the common issues and concerns that need to be considered when entering into these contractual arrangements.

Co-hosted by the Internal Revenue Service and ASPPA, this two day Conference features presentations on regulatory, legislative, administrative and actuarial and other employee benefit issues lead by local, regional and national government representatives from the Internal Revenue Service and the Department of Labor and nationally recognized employee benefit leaders from private industry. To register for the Conference or for additional information, see here.

Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for more than 22 years domestic work with employer and other plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on employee benefit program and product design, documentation, administration, compliance, risk management, and public policy matters. The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with vendor or other outsourcing contracts, or other employee benefits, employment, compensation or other management concerns, wish to inquire about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer, CTT Labor & Employment Practice Chair at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here and learn more about other Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

Comments Off on Stamer To Speak About TPA & Other Plan Services Agreement Contracting Strategies For Managing Risks & Improving Effectiveness At 2010 Great Lakes Benefits Conference | CHIP, COBRA, Corporate Compliance, Defined Benefit Plans, Disability Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, FMLA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Preemption, Prescription Drugs, Privacy, Professional Liability, Reporting & Disclosure, Retirement Plans, Risk Management, Tax, Wellness Programs | Tagged: administrative services agreement, bonding, compliance, ERISA, Fiduciary Responsibility, Health Plans, Insurance, Retirement Plans, Risk Management, tpa, trustees | Permalink
Posted by Cynthia Marcotte Stamer

Extension of Unemployment Benefits Signed Into Law & Immediately Effective As Filibuster Ends

March 3, 2010

By Cynthia Marcotte Stamer

Effective yesterday, the Temporary Extension Act of 2010, H.R. 4691,extended unemployment benefits to April 5, 2010. It also extended and expanded the COBRA premium subsidy requirements originally established under the American Recovery and Reinvestment Act (ARRA) and plan sponsor penalties for noncompliance.

In recent days, H.R. 4691 drew great media attention when its enactment was delayed by a filibuster by Kentucky Senator Jim Bunning. As media coverage of the Bunning filibuster focused almost exclusively on its unemployment benefit extension provisions, many U.S. employers and others are unaware of its provisions extending and expanding the COBRA premium subsidy mandates and authorizing higher pay for Medicare doctors and funding for federal highway programs. President Obama signed H.R. 4691 into law on March 2, 2010 just hours after Senator Bunning ended his highly publicized filibuster.

Unemployment Benefit Extensions

H.R. 4691’s unemployment insurance benefit provisions became immediately effective when signed by the President. These provisions:

Extend the period during which individuals may file applications for Federal Emergency Unemployment Compensation (EUC) from the current end date of February 28, 2010 to April 5, 2010 and extend the period during which individuals may claim and be paid EUC from July 31, 2010 to September 4, 2010.
Extend from the current end date of February 28, 2010 to April 5, 2010 the period during which individuals may qualify for the Federal Additional Compensation (FAC), the extra $25 weekly benefit amount on state and federal unemployment compensation, while also providing for weekly payment during the phase out period for weeks ending October 5, 2010 instead of August 31, 2010.
Extend the period during which 100% federal reimbursement for weeks of regular federal extended benefit payments to April 5, 2010, with the state option to continue the extended period from July 31, 2010 to September 4, 2010.

COBRA Premium Subsidy Extended & New Penalties Added

In addition to extending unemployment benefits, H.R. 4691 also extends and expands the availability of the temporary COBRA subsidy rules originally added to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) medical coverage continuation requirements by the American Recovery and Reinvestment Act of 2009 (“AARA”) last February. For details about these COBRA premium subsidy amendments, see here. To minimize their COBRA rights under the amended COBRA premium subsidy rules, group health plans, their employer or union sponsors, administrators, insurers and service providers will need to act quickly to prepare and provider required updated notifications to assistance eligible individuals of these extended eligibility periods and their resulting rights, and otherwise update their plan documents, procedures, and COBRA notifications in light of these new rules.

For Added Information or Assistance

If your organization need advice or assistance with these or other labor and employment, employee benefits, compensation or related matters, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has extensive experience advising and representing management about labor and employment, employee benefits, compensation and other related management matters. A nationally recognized author and lecturer, Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Examples of other recent updates that may be of interest include:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Extension of Unemployment Benefits Signed Into Law & Immediately Effective As Filibuster Ends | ARRA, Bankruptcy, COBRA Subsidy, Corporate Compliance, Employee Benefits, Employers, Human Resources, Insurance, Internal Controls, Stimulus Bill, Unemployment Insurance | Tagged: ARRA, COBRA, Corporate Compliance, Employer, reductions in force, Reengineering, Temporary Extension Act of 2010, unemployment | Permalink
Posted by Cynthia Marcotte Stamer

Privacy Rule Changes & Posting of Breach Notices On OCR Website Signal New Enforcement Risks For Health Plans, Their Sponsors & Business Associates

February 23, 2010

By Cynthia Marcotte Stamer

The Department of Health and Human Services Office of Civil Rights (OCR) has begun disclosing on its website the employer and other health plans, health care providers, health care clearinghouses and their business associates (Covered Entities) that report breaches of unsecured protected health information (UPIC) affecting more than 500 individuals as required by new rules enacted as part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act). This posting of Covered Entities reporting breaches comes just days after these and other Covered Entities became subject on February 17, 2010 to a host of other tighter federal requirements for the use, access, protection and disclosure of protected health information under Privacy & Security Standards of the Health Insurance Portability & Accountability Act (HIPAA) also enacted as part of the HITECH Act. As failing to comply with the amended rules effective February 17, 2010 can trigger obligations under the Breach Regulations and other exposures, prompt action to manage risk under both the Breach Regulations and the revised HIPAA rules is critical to minimize Covered Entity and business associate exposures under both these rules. With criminal, administrative and civil prosecutions of such violations increasing and likely to expand, timely action to manage compliance and other risks is warranted. Health plans and their business associates also should prepare for increased awareness and oversight of the adequacy of their medical information safeguards as these disclosures and other enforcement actions heighten interest and awareness of employees and others in these rules.

Covered Entity Breach Notification Requirements

OCR posted the initial list of Covered Entities disclosing these breaches on its website for the first time yesterday (February 22, 2010) to comply with breach notification requirements imposed by Section 164.408 of the interim “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) published here.

The Breach Regulation requires Covered Entities subject to the Health Insurance Portability & Accountability Act (HIPAA) to notify affected individuals, OCR and certain other parties following a “breach” of “unsecured” protected health information occurring on or after September 23, 2009. The Breach Regulation implements new breach notification requirements added to HIPAA by Section 13402(e)(3) of the Health Information Technology for Economic and Clinical Health Act (HITECH Act). It and the posting of Covered Entities reporting breaches of protected health information are part of the ongoing implementation and enforcement of new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under provisions of the HITECH Act and expanded remedies for violations signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA).

You can review the list of Covered Entities that have reported breaches on the OCR website here. Learn more about the Breach Regulation requirements here.

Broader & Stricter Medical Privacy Mandates Effective 2/17/210

Just last Wednesday (February 17, 2010) Covered Entities and their business associates also became subject to tighter federal requirements for the use, access, protection and disclosure of protected health information under amendments to HIPAA’s Privacy & Security Standards enacted by the HITECH Act. The changes that became effective on February 17, 2010 generally require that Covered Entities and their business associates make specific changes to update their written policies, operational procedures, privacy notices, business associate agreements, training, and other management procedures in several respects. For more details, see here.

While the HITECH Act gave Covered Entities and business associates a year to complete the necessary arrangements to comply with these HITECH Act changes, many Covered Entities and business associates have remain unnecessarily exposed under these new requirements by not completing or otherwise failing to adequately implement the necessary arrangements despite expanding liability exposures that can result from noncompliance. To mitigate these exposures, Covered Entities and their business associates should act quickly to review and update their policies, procedures, training, business associate and other services agreements, and other practices and procedures, as well as to implement the training, oversight, and other management necessary to comply with the HITECH Act changes and to mitigate other HIPAA risks.

Exposures Significant & Growing

Covered Entities and business associates failing to devote adequate attention and resources to managing HIPAA compliance and associated risks risk increasing peril. Aside from the potential implications that disclosures of violations may have on patients and others impacting their business, the legal risks of noncompliance for Covered Entities, business associates and others mishandling protected health information are real and growing.

Timely action to comply with the amended HIPAA requirements and Breach Regulations is important both to preserve critical trust in the business, to avoid triggering breach notifications that can undermine this trust and fuel legal complaints, and to avoid exposure to an expanding range of sanctions that can result when a violation occurs.

Amendments made under the HITECH Act have expanded the size and availability of remedies that can be imposed for HIPAA violations as well as the parties empowered to pursue these remedies. Wrongful use, access or disclosure of protected health information in violation of HIPAA subjects participating health plans, health care providers, health care clearinghouses, their business associates and other workforce members and others to civil penalties, criminal prosecution and, since February 17, 2009, civil lawsuits brought by state attorneys general on behalf of citizens of their states whose HIPAA rights were violated. Since September 23, 2009, health plans and other HIPAA Covered Entities as well as their business associates also became obligated to provide breach notification under new mandates imposed by the HITECH Act. Coupled with increased enforcement emphasis by regulators, these expansions to HIPAA’s remedy provisions increase the risk that Covered Entities or business associates violating HIPAA face investigation and sanction. Furthermore, the wrongful use, access or disclosure of protected health information or other confidential information also increasingly is the basis of civil or criminal actions brought under a variety of other federal and state laws.

Expanded HIPAA & Other Federal Prosecutions & Remedies

The expanded requirements imposed under the Breach Regulation and the other HITECH Act changes that took effect on February 17, 2010 follow the implementation changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, when President Obama signed the HITECH Act into law. The HITECH Act amendments to HIPAA’s remedies significantly increase the risk that health plans and other Covered Entities and their business associates will face civil lawsuits, civil or criminal penalties or other consequences for violating HIPAA. Noncompliance with these and other HIPAA requirements subjects Covered Entities and business associates to civil penalties, criminal prosecution, civil damage awards under lawsuits brought by state attorneys general, and other legal remedies. In addition, timely update written policies, procedures, business associate agreements, training and documentation is imperative in order for Covered Entities and their business associates to fulfill their breach notification obligations under new rules enacted as part of the HITECH Act.

HITECH Amendments Expand Liability Exposures

The expanded risks stem in part from the HITECH Act’s amendments to HIPAA’s remedy provisions. Among other things, the HITECH Act amended HIPAA to:

Allow a State Attorney General to sue health plans or other Covered Entities, business associates or both that harm state citizens by committing HIPAA violations after February 16, 2009;
Expand the mandate by OCR to investigate violations and audit compliance with HIPAA;
Require Office of Civil Rights to impose civil sanctions against Covered Entities and business associates involved in violations of HIPAA in accordance with tightened standards added to HIPAA by the HITECH Act;
Revise the criminal sanctions that the Department of Justice can seek against Covered Entities, their business associates and others for violations of HIPAA; and
Amend HIPAA to make clear that HIPAA’s criminal sanctions also can imposed on business associates, workforce members and other persons that improperly use, access and disclose protected health information in violation of HIPAA.

State Attorney General Lawsuit Exposures

Covered Entities and their business associates now also need to be concerned about the potential that a state Attorney General may bring civil suit to remedy damages caused to state citizens by a breach of HIPAA.

The HITECH Act empowers a state attorney general to sue Covered Entities or business associates engaging in HIPAA violations that harms citizens of the state for statutory damages equal to the sum of the number of violations multiplied by 100 up to a maximum of $25,000 per calendar year plus attorneys fees and costs

A HIPAA civil lawsuit filed on January 13, 2010 demonstrates the willingness of at least some states to exercise the new authority created by the HITECH Act on February 17, 2009 to sue Covered Entities and business associates that violate HIPAA for civil damages.

On January 13, 2010 Connecticut Attorney General Richard Blumenthal sued Health Net of Connecticut, Inc. (Health Net) for failing to secure private patient medical records and financial information involving 446,000 Connecticut enrollees and promptly notify consumers endangered by the security breach. The suit also names UnitedHealth Group Inc. and Oxford Health Plans LLC, who have acquired Health Net. The first attorney general enforcement action brought based on amendments made to HIPAA under the HITECH Act, Connecticut charges that Health Net violated HIPAA by failing to safeguard protected medical records and financial information on almost a half million Health Net enrollees in Connecticut then allowing this information to remain exposed for at least six months before notifying authorities and consumers.

Stepped Up Federal Enforcement

Even before the HITECH Act amendments, however, OCR and Department of Justice already were stepping up HIPAA investigation and enforcement. The Department of Justice has obtained a variety of criminal convictions against violators of HIPAA. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information. Meanwhile, OCR also is emphasizing HIPAA enforcement. In February, 2009, for instance, OCR announced that CVS Pharmacies, Inc. would pay $2.25 million to resolve HIPAA charges. This announcement followed OCR’s announcement in July, 2008 that Providence Health Care would pay $100,000 to resolve HIPAA violation charges. OCR also has taken HIPAA enforcement actions against a broad range of other Covered Entities to redress HIPAA violations or other compliance concerns. To review examples of these other actions, see here. While not resulting in the significant payments involved in CVS or Providence, all Covered Entities involved in these and other enforcement actions or investigations have incurred significant legal and other defense costs, loss of community trust, or both.

In addition to these HIPAA-specific exposures, wrongful use, access or disclosure of medical information also can give rise to liability for health plans and other Covered Entities, business associates, employees and other members of their workforce and others improperly using, accessing or disclosing protected health information. Federal and state prosecutions may and increasingly do criminally prosecute individuals for improperly accessing or using medical or other personal information under a variety of other federal or state laws . See e.g., Cybercrime & Identity Theft: Health Information Security Beyond HIPAA; NY AG Cuomo Announcement of 1st Settlement For Violation of NY Security Breach Notification Law; Woman Who Revealed AIDs Info Gets A Year. Additionally, State courts also increasingly are permitting individuals harmed by HIPAA violations to use HIPAA as the foundation of state law duties used to maintain state negligence, invasion of privacy, retaliation or other claims for damages. Read more here.

State Civil Lawsuits

Along side these governmental actions, state courts also increasingly are willing to allow individual plaintiffs to rely on violations of HIPAA as the basis for bringing state privacy, retaliation or other actions. While prior to the recent HITECH Act amendments, federal courts had ruled that private plaintiffs could not sue under HIPAA for damages they incurred from a Covered Entity’s violation of HIPAA, state courts have allowed private plaintiffs to use the obligations imposed by HIPAA as the basis of a Covered Entity’s duty for purposes of certain state law lawsuits. In Sorensen v. Barbuto, 143 P.3d 295 (Utah Ct. App. 2006), for example, a Utah appeals court ruled a private plaintiff could use HIPAA standards to establish that a physician owed a duty of confidentiality to his patients for purposes of maintaining a state law damages claim. Similarly, the Court in Acosta v. Byrum, 638 S.E. 2d 246 (N.C. Ct. App. 2006) ruled that a plaintiff could use HIPAA to establish the “standard of care” in a negligence lawsuit.

Meanwhile, disgruntled employees or other business partners also increasingly raise alleged HIPAA misconduct as a basis of their legal complaints. For instance, private plaintiffs employed by Covered Entities also are increasingly pointing to HIPAA as the basis for their retaliation or wrongful discharge claims. See, e.g., Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim. Coupled with the HITECH Act changes, these and other enforcement actions signal growing potential hazards for Covered Entities and their business associates that fail to properly manage their HIPAA compliance obligations and risks.

Given these and other developments, Covered Entities and their business associates generally should resist the temptation to underestimate their potential HIPAA exposure for a variety of reasons. In fact, a number of factors demonstrate that the risks are significant and growing for Covered Entities, business associates and others that breach HIPAA’s mandates or otherwise inappropriately access protected health information.

Covered Entities & Business Associates Urged To Act Promptly To Manage Expanded HIPAA Risks & Obligations

As a consequence of these collective HITECH Act changes and growing HIPAA-related and other exposures, Covered Entities, their business associates and business associates generally will find it necessary or advisable among other things to:

Conduct well-documented due diligence within the scope of attorney-client privilege on their own practices and procedures;
Review the adequacy of the practices, policies and procedures of the Covered Entities, business associates, and others that may come into contact with protected health information;;
Renegotiate their service provider agreements to detail the specific compliance obligations of each party relating to for auditing compliance, investigating potential breaches; providing required breach notifications; specify leadership and required cooperation in the event of a breach, charge, or other concern; indemnification and other liability allocations; and other related matters;
Update policies, privacy and other notices, practices, procedures, training and other practices as needed to promote compliance and defensibility;
Conduct well-documented training as necessary to ensure that business associates and other members of the Covered Entity’s workforce understand and are prepared to comply with the expanded requirements of HIPAA, can detect potential breaches or other compliance concerns, and understand and are prepared to follow appropriate procedures for reported suspected violations; and
Pursue appropriate liability and other protection as appropriate to improve their ability to demonstrate both their commitment to compliance and their realistic efforts to ensure that these commitments are both appropriately documented on paper and operationalized in performance.

As part of these compliance and risk management efforts, most Covered Entities and their business associates will find it advisable to devote significant attention to the business associate relationship and its associated business associate agreements. Proper management of the expanded compliance obligations and liability exposures created by the HITECH Act generally will necessitate that Covered Entities and their business associates focus significant attention on the reworking of their operating and contractual relationships including the definition of detailed procedures for monitoring, reporting, investigating, and resolving potential breaches or other compliance concerns.

Even before the impending HIPAA changes scheduled to take effect on February 17, 2010, a strong need for more detailed contracting and planning of these relationships already existed. Since the enactment of HIPAA, the practice of many Covered Entities and their business associates of appending generic “business associate” representations onto existing services contracts without specific tailoring and planning has created undesirable ambiguities in these agreements. Further updating and tailoring of these and other provisions of services agreements has become even more important over the past year in light of the new breach notification mandates that took effect under the HITECH Act in September, 2009, changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, and the impending extension by the HITECH Act to business associates of direct liability for compliance with HIPAA scheduled to occur on February 17, 2010.

These and other stepped up oversight and enforcement activities make it critical that all Covered Entities and their business associates update their policies and practices, conduct training, tighten their compliance and data breach monitoring processes, strengthen their internal controls and documentation, and take other steps to prepare to defend their actions under the newly strengthened Privacy Rules. Covered Entities and their business associates more than ever must ensure their ability to demonstrate to federal regulators the effectiveness of their HIPAA compliance efforts by both adopting the written policies and procedures required by HIPAA and continuously monitoring and administering these safeguards. Covered Entities should consider reviewing the adequacy of their current HIPAA Privacy and Security compliance practices taking into consideration the Corrective Action Plan, published OCR noncompliance and enforcement statistics, their own and reports of other security and privacy breaches and near misses, and other developments to determine if additional steps are necessary or advisable.

For Assistance With Compliance Or Other Concerns

If your organization need advice or assistance in reviewing, updating, administering or defending its HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting the author of this article, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail here.

Ms. Stamer is nationally known for her work, training and presentations, and publications on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts.

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 22 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

Other Recent Developments

If you found this information of interest, you also may be interested in information about upcoming programs to be presented by Ms. Stamer, acquiring a copy of a recording or materials from previous programs she has presented, or arranging training for your organization. For more information about these opportunities, contact Ms. Stamer directly.

If you found this information of interest, you also may be interested in reviewing some of the following recent Updates available online by clicking on the article title:

Curran Tomko Tarski LLP Can Help

If your organization need advice or assistance in reviewing, updating, administering or defending its HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

A widely published author and speaker on HIPAA and other employee benefit and human resources related matters, Ms. Stamer has extensive experience advising health plans, their employer and other sponsors, health insurers, TPAs and other business associates and others about HIPAA and other health plan and privacy matters. Currently serving as both Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and as an ABA Joint Committee on Employee Benefits Council representative and Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has more than 23 years experience assisting employers, insurers, plan administrators and fiduciaries and others to design, implement, draft and administer health and other employee benefit plans and to defend audits, litigation or other disputes by private parties, the IRS, Department of Labor, Office of Civil Rights, Medicare, state insurance regulators and other federal and state regulators. A nationally recognized author and lecturer, Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Privacy Rule Changes & Posting of Breach Notices On OCR Website Signal New Enforcement Risks For Health Plans, Their Sponsors & Business Associates | Corporate Compliance, Data Security, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Privacy, Risk Management, Wellness Programs | Tagged: Corporate Compliance, Employee Benefits, Employer, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Medical Coverage, Privacy, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

Stamer To Present “2010 Health Plan Checkup” At Annual DFW ISCEBS Employee Benefits Fundamentals Workshop

February 22, 2010

Cynthia Marcotte Stamer will discuss the latest changes and requirements affecting employer sponsored group health plans, their sponsors, fiduciaries, insurers and vendors during her presentation titled “2010 Health Plan Checkup” at the Dallas/Fort Worth ISCEBS Annual Fundamentals Workshop currently scheduled for May 13, 2010 in Dallas.

With Congress and federal regulators turning up the heat on health care, keeping up to date with the latest developments is both critical and increasingly challenging for employers, their employee benefits and human resources staff, and the fiduciaries, insurers, administrators and others dealing with health plan design and administration. Coming as U.S. employers continue to struggle to provide health benefits in the face of skyrocketing health benefit costs, tighter health plan medical privacy, nondiscrimination, mental health and other benefit mandates, and a host of other tighter new federal regulations impacting employment-based health plans and their sponsoring businesses, fiduciaries and administrators increasingly are forcing U.S. business leaders to make appropriate health plan cost and compliance management a key management priority. Ms. Stamer will discuss key developments, highlight new developments on the horizon, and provide tips to participants for monitoring and responding to these and other developments. To register or for additional information, contact the Dallas/Fort Worth ISCEBS here.

Nationally recognized for her more than 22 years of work on managed care and other health and other employee benefits, human resources, insurance, and health care matters, Ms. Stamer assists employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend managed care and other medical benefit programs and practices. She also regularly advises and assists these and other clients to monitor and respond to evolving legislation, regulations, enforcement activities by federal and state regulators, evolving product and market changes, and private litigation and other disputes. Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group and the Current Chair of the ABA RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and Board Certified in Labor & Employment Law, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters. Some other recent updates on these topics recently published by Ms. Stamer include :

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with these or other compliance concerns, wish to inquire about federal or state regulatory compliance audits, risk management or training, assistance investigating or responding to a known or suspected compliance or risk management concern, or need legal representation on other matters please contact the author of this update, Cynthia Marcotte Stamer, CTT Labor & Employment Practice Chair at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

Comments Off on Stamer To Present “2010 Health Plan Checkup” At Annual DFW ISCEBS Employee Benefits Fundamentals Workshop | ARRA, CHIP, COBRA, COBRA Subsidy, Employee Benefits, Employers, ERISA, Excise Tax, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Stimulus Bill, Tax, Wellness, Wellness Programs | Tagged: COBRA, Disability Discrimination, Disease Management, Employer, Employers, Employment, ERISA, Health Care Reform, Health Insurance, Health Plans, HIPAA, Human Resources, Insurance, Insurer, Internal Controls, Managed Care, Medical Coverage, Military Leave, Premium Subsidy, Privacy, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Employers, Group Health Plans Subject To New CHIP/Medicaid Notice, Coordination of Benefits & Special Enrollment Requirements

February 16, 2010

By Cynthia Marcotte Stamer

On February 14, 2010, the U.S. Department of Labor (DOL) issued a model notice (CHIP Notice) for employers and unions sponsoring health plans in states offering Medicaid or Children’s Health Insurance Program (CHIP) participants group health plan premium subsidy assistance to inform employees of Medicaid and CHIP premium subsidy opportunities available in their state of residence. The duty to provide notice is part of various new obligations imposed on group health plans and employers under the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA).

Covered health plans and health insurers, their sponsoring employers and unions, fiduciaries, administrations and other contracted service providers should take steps to update their employee benefit plan enrollment and coordination provisions, communications, processes and procedures to comply with these new requirements including, where applicable and permitted, specific policies and procedures defining when and how premium subsidies may be paid to the group health plan. Continue reading.

Other Changing Health Plan Requirements Also Merit Attention

Employer and other group health plans sponsors, insurers, fiduciaries, administrators and service providers should timely update their group health plan terms, practices, notices, policies and procedures in response to these new requirements. At the same time, health plans, their employer or other sponsors, insurers, fiduciaries, administrators and service providers also should not overlook the need to review and update their health plans in response to a host of other changes in federal health plan mandates. The highly volatile health plan regulatory environment makes it likely that many health plans are not appropriately updated to comply with these and other federal requirements. In recent months, health plans, their employer or other sponsors, administrators and others also have become obligated to comply with a host of other expanded federal health plan rules and requirements. See e.g., New Mental Health Parity Regulations Require Health Plan Review & Updates; New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans; Newly Extended COBRA Subsidy Rules Require Employers, Administrators Send Required Notices & Update Health Plan Documents & Procedures Quickly; Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23; COBRA, HIPAA, GINA, Mental Health Parity or Other Group Health Plan Rule Violations Trigger New Excise Tax Self-Assessment & Reporting Obligations. These and other developments make it imperative that health plans, their sponsors, administrators, insurers, fiduciaries and service providers get serious about complying with HIPAA.

Curran Tomko Tarski LLP Can Help

If your organization need advice or assistance in reviewing, updating, administering or defending its health plan, HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Employers, Group Health Plans Subject To New CHIP/Medicaid Notice, Coordination of Benefits & Special Enrollment Requirements | CHIP, Employee Benefits, Employers, Health Plans | Tagged: CHIP, Coordination of Benefits, Health Plans, HIPAA Portability, Medicare, Special Enrollment | Permalink
Posted by Cynthia Marcotte Stamer

COBRA, HIPAA, GINA, Mental Health Parity or Other Group Health Plan Rule Violations Trigger New Excise Tax Self-Assessment & Reporting Obligations

February 10, 2010

By Cynthia Marcotte Stamer

New Internal Revenue Service group health plan excise tax regulations that took effect January 1, 2010 now require that group health plans, their employers or other sponsors or others administering group health plans file an excise tax return self-reporting violations of the medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act (COBRA); the non-discrimination, special enrollment and creditable coverage requirements of the Health Insurance Portability & Accountability Act (HIPAA); the Genetic Information Nondiscrimination Act (GINA), the Mental Health Parity and Addiction Equity Act (MHPAEA), the Newborns’ and Mothers’ Health Protection Act (NMHPA), Michelle’s Law, health savings account (HAS) comparable employer contribution rules or certain other federal group health plan mandates to file an excise tax return. The addition of the excise tax reporting requirement adds to the already significant potential costs and liabilities that group health plans, their sponsors and administrators may face for violation of these or other federal group health plan mandates under the Internal Revenue Code (Code) or other applicable laws. As a consequence, plan sponsors, administrators and others involved in the design and administration of group health plans subject to these requirements should ensure that their plan documents, policies and procedures -including those provided through third party service providers – properly are updated and administered in compliance with the applicable federal requirement and that proper steps are taken to timely correct any noncompliance issues that may arise in connection with the ongoing administration of their programs.

Numerous Changes In Law Enhance The Risk Plans Noncompliant

Group health plans, their sponsors, fiduciaries, insurers and administrators must deal with an already complex, and ever expanding array of federal requirements governing the design and administration of group health plans imposed by the Code, the Employee Retirement Income Security Act, the Social Security Act and various other federal laws. Federal law increasingly is curtailing the significant latitude that employers and unions once enjoyed in deciding the benefits, eligibility and other terms and conditions of their group health plans. Noncompliance risks presently are particularly high now in light of the significant number of changes to these requirements that took effect or will take effect during 2009 and 2010. As part of the range of damages, penalties or other liabilities that can arise when these requirements are violated, the Code imposes excise taxes upon employers or certain other parties involved with group health plans that fail to meet the Code’s COBRA, HIPAA GINA, MHPAEA, Michelle’s Law, HSA comparability, or certain other group health plan rules. The excise tax amount triggered is generally $100 per individual for each day of noncompliance. However, for the HSA comparable employer contribution requirements, the excise tax generally equals 35% of all employer contributions made to all HSAs during the applicable calendar year.

Excise Tax Self-Assessment & Reporting Mandates Increase Potential Noncompliance Costs

Prior to 2010, the IRS generally did not require employers or other plans sponsors subject to these excise taxes to report group health plan noncompliance or assess these excise taxes as part of an IRS audit. However, final regulations published last September changed this policy. Effective January 1, 2010, the new regulations now require that group health plan sponsors to self report and pay applicable excise taxes if their group health plan fails to comply with any of the various federal group health plan mandates subject to the new regulations unless the employer or other responsible party demonstrates that it is excused from the reporting requirement under the Code or Regulations.

The timing of the required reporting may vary based on the nature of the group health plan and other factors. For most violations involving a single employer group health plans, the sponsoring employer generally must report the applicable excise tax on IRS Form 8928 (Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code), and pay the tax when reported. Penalties and interest may be assessed for failure to do so on or before the due date (without extension) of the employer’s federal income tax return. When a COBRA violation occurs, however, an insurer or third-party administrator may in some cases be responsible for the payment or reporting of the excise tax in some circumstances. When this is the case, the tax generally will be due by the due date (without extension) of the insurer’s or administrator’s federal income tax return. For multiemployer plans and multiple employer health plans, the return generally will be due by the last day of the seventh month after the end of the plan year. For noncompliance with the HSA comparable employer contribution requirements, the excise tax and Form 8928 must be filed on or before the 15th day of the fourth month following the calendar year in which the employer made the noncomparable contributions.

Recommended Steps To Manage Risks

Ongoing and continuously evolving changes in the requirements applicable to group health plans under the Code and other laws and regulations have significantly increased the likelihood that many group health plans and their processes, forms and procedures may not fully comply with applicable requirements. This often is the case even where the plan sponsor has engaged highly respected insurers, consultants or administrators to assist with the design or administration of its programs. In light of the potentially significant damage, excise tax and other penalty and other liability risks that violations can trigger, plan sponsors, insurers and administrators should among other things:

Review and update as necessary their existing plan documents and related practices for compliance with applicable federal mandates;
Monitor and react promptly to update plan terms and procedures as changes occur;
Implement and administer appropriate procedures to identify and redress compliance problems on a timely basis;
Review the adequacy of vendor compliance and tighten vendor agreements to strengthen the enforceability of quality expectations and to enhance the potential for recourse if these quality commitments are not met; and
Evaluate the advisability of securing liability insurance or other back up protection to help mitigate potential liability, investigation and/or defense costs that may arise if the need to investigate or defend a compliance challenge arises.

For Help In Managing Your Risk

If your organization needs assistance with monitoring, assessing, managing or defending these or other health or other employee benefit, labor and employment, or compensation practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with health and other employee benefit, labor and employment laws, safety, compensation, insurance, and other laws. She also advises and defends employers and other plan sponsors, fiduciaries, employee benefit plans and others about litigation and other disputes relating to these matters, as well as charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

1 Comment | COBRA, Corporate Compliance, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Reporting & Disclosure, Tax, Wellness Programs | Tagged: COBRA, Creditable Coverage, Employers, GINA, Group Health plans, Health Plans, HIPAA Mental Health Parity, Insurers, Third party Administrators | Permalink
Posted by Cynthia Marcotte Stamer

Inapplicability of HIPAA Privacy To Disability Insurer Not License To Impose Unreasonable Claims Requirements

February 8, 2010

By Cynthia Marcotte Stamer

While finding the Privacy Standards imposed by the Health Insurance Portability & Accountability Act (HIPAA) inapplicable to disability insurers, a recent Louisiana Court of Appeals nevertheless ruled that the insurer was not entitled to dismissal of the lawsuit challenging the denial of disability benefits brought by a state employee for failure to meet proof of loss requirements based on his failure to sign insurer required medical authorization. Disability insurers and plan fiduciaries should heed the decision as a reminder that exemption from HIPAA does not amount to a license to impose unreasonable proof of loss or requirements inconsistent with a reasonable reading of the terms of the applicable plan or policy, or other applicable regulations.

Harris v. Metropolitan Life Ins. Co., — So.3d —-, 2010 WL 415262, 2009-0034 (La.App. 1 Cir. 2/5/10), involved a lawsuit challenging the continuing refusal of Metropolitan Life Insurance to and its designates to approve the disability benefit claim of Louisiana Supreme Court employee Jack Harris. Metropolitan repeatedly asked insisted that Mr. Harris submit to a physical examination and sign various medical and other authorizations including an “Attending Physician’s Statement” and an “Employee Authorization,” and sign certain other documents. While Mr. Harris sent the “Attending Physician’s Statement” to his treating physician, he declined to sign the Employee Authorization and certain other subsequently requested consents on the grounds of HIPAA. While he provided to a HIPAA-compliant authorizations to his medical providers to release all medical records, medical opinions, and medical reports relating to Mr. Harris’ past and current treatment for purposes of the claim, he declined and instead filed suit contending that the information and releases already provided met the proof of loss requirements of the policy.

Upon motion of Metropolitan, the trial court found that Mr. Harris’ failure to sign the authorizations and submit to the medical examination required by Metropolitan rendered his claim “premature.” Upon appeal, however, the Court of Appeals overruled this determination. While the Court of Appeals agreed with the trial court that the special authorization rules imposed by HIPAA did not apply to a disability insurer such as Metropolitan, it also ruled that its right to require a claimant to sign authorizations, submit to medical examinations or meet other proof of loss conditions must be reasonable in light of the terms of the policy. Accordingly, although the Court of Appeals agreed that the proof of loss and other provisions of the disability policy authorized Metropolitan to require a disability claimant to undergo an independent medical examination “as often as reasonably required,” the Court of Appeals ruled that Mr. Harris’ submission to the independent medical examination was not a condition precedent to the initiation of litigation by an insured and that the “medical authorization” demanded by Metropolitan was far broader than what the policy allowed as reasonably required for the independent medical examination. Accordingly, the Court of Appeals overruled the trial court’s dismissal of the disability claim and remanded the action to the trial court for hearing.

While affirming that the HIPAA Privacy Standards don’t directly apply to disability insurers, the Harris decision also demonstrates that disability insurers should not over-estimate the effect of this exemption. While HIPAA may not apply, disability insurers generally remain bound by the reasonable construction of their policy terms, taking into account otherwise applicable laws and regulations. Accordingly, disability and other HIPAA-exempt insurers and plans should not confuse the inapplicability of the HIPAA authorization requirements for carte blanche to impose unreasonable authorization or other proof of loss requirements inconsistent with their policy terms.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employee benefit, employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer has more than 22 years experience advising and assisting employers, employee benefit plan and their fiduciaries, insurers, administrators, and others about policy and plan, process, and product design, administration, documentation, risk management and defense under ERISA, COBRA, HIPAA, labor and employment, tax, state banking and insurance, and other laws. Her work includes extensive experience advising and defending employee benefit plan fiduciaries and insurers about the investigation of disability, health and other claims and appeals. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks, writes and conducts training extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Inapplicability of HIPAA Privacy To Disability Insurer Not License To Impose Unreasonable Claims Requirements | Disability Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Insurance, Retirement Plans | Tagged: Authorizations, Claims Procedures, Disability Insurance, Employee Benefits, Employer, Employers, Employment, Employment Agreements, ERISA, Health Insurance, HIPAA, Human Resources, Insurance, Insurer, Privacy Standards | Permalink
Posted by Cynthia Marcotte Stamer

New Mental Health Parity Regulations Require Health Plan Review & Updates

January 31, 2010

By Cynthia Marcotte Stamer

Employer and union-sponsored group health plans and insurers generally must update their group health plans to comply with expanded federal “mental health parity” regulations (MHP Regulations) published on Friday, January 29, 2010 will require changes to most covered group health plans to comply with the new rules and to make adjustments to broader benefit provisions as appropriate to mitigate potential cost implications no later than the first plan year beginning after June 30, 2010.

Jointly published by the Treasury, Health & Human Services and Labor Departments and available for review here , the MHP Regulations interpret and implement federal rules prohibiting group health plans and their insurers from imposing certain special limits on benefits provided for mental health and substance abuse treatments not applicable to general medical or surgical benefits.

The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008, Public Law 110-343 (MHPAEA) expands the scope of prohibited restrictions on mental health benefits beginning after June 30, 2010. Under the MHPAEA amendments, any covered group health plan that includes mental health and substance use disorder benefits along with standard medical and surgical benefits generally cannot apply more limited benefit limits, out-of-pocket cost limitations, prior authorization and utilization review or other benefit restrictions than apply to medical or surgical benefits. In addition, group health plan utilization review, medical necessity and appropriateness and other rules and procedures used to decide mental health and substance abuse benefits generally must be based on the same level of scientific evidence used by the group health plan or insurer to determine medical and surgical benefits.

Before the MHPAEA amendments took effect, the Mental Health Parity Act of 1996 (MHPA) generally only prohibited group health plans from applying more restrictive aggregate lifetime and annual dollar limits on mental health benefits than applied to general medical or surgical benefits and did not extend these restrictions to substance use disorder benefits.

The MHP Regulations generally apply to group health plans of employers with 50 or more workers that offer mental health or substance use disorder benefits for plan years beginning on or after July 1, 2010. Until then, covered group health plans and their insurers generally must continue to comply with the more limited mental health parity requirements imposed under the MHPA, as well as other federal group health plan mandates.

Federal law increasingly is curtailing the significant latitude that employers and unions once enjoyed in deciding the benefits, eligibility and other terms and conditions of their group health plans, including many significant changes that took effect or will take effect during 2009 and 2010. You can learn more about some of these developments by reviewing the 2009 Health Plan Update presentation posted here. In light of the liabilities and costs arising under these and other rules, plan sponsors, administrators, fiduciaries and executives with responsibility over these plans, their establishment, funding or administration should take prompt and prudent steps to verify that their plan documents, communications, agreements and practices are updated to minimize risks and avoid unanticipated expense.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on New Mental Health Parity Regulations Require Health Plan Review & Updates | Disease Management, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Mental Health | Tagged: Disability Discrimination, Disease Management, Employee Benefits, Employment, Employment Agreements, ERISA, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, Mental Health Benefits, Mental Health Parity, Risk Management, Substance Abuse Benefits | Permalink
Posted by Cynthia Marcotte Stamer

Health Plans & Employers Can Expect Pressure To Pay For Childhood Obesity Counseling From New American Academy of Pediatrics Report

January 25, 2010

By Cynthia Marcotte Stamer

New American Academy of Pediatrics recommendations calling for early intervention and intensive behavioral therapy to treat childhood obesity promise to increase demands for employer sponsored and other health plans to reimburse the costs of these treatments.

With health care providers and government officials increasingly emphasizing the need for prevention and intervention, employers and health insurers face greater pressure to offer health benefit coverage for weight management and other obesity prevention and treatment. Aside from determining what treatments to coverage generally, recent changes in the Americans With Disabilities Act statute and its enforcement and interpretation by the Equal Employment Opportunity Commission, the recently effective employment and health plan nondiscrimination rules of the Genetic Information and Nondiscrimination Act, health information and other privacy rules and other legal changes make the appropriate design and administration of obesity and other wellness, disease management and other programs targeting obesity or other chronic conditions legally and operationally challenging. Employers and insurers concerned with these issues should exercise care to properly understand and appropriately manage the legal and operational complexities, risks, costs and benefits when designing health and other programs to manage health care, disability and other costs of obesity and other chronic diseases.

Read the report and about discrimination and other issues that employers and insurers may need to manage under evolving federal rules when deciding how to design and manage obesity and other wellness and disease management programs here.

If you have questions about wellness, disease management or other health and wellness benefit, disability prevention and management, or other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.

Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group, an ABA Joint Committee on Employee Benefits Council Member, Past Chair of the ABA Managed Care & Insurance Group and RPTE Welfare Benefits Committee and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced advising and assisting government leaders, employers, health and other employee benefit plans and their fiduciaries, insurers, financial advisory services, and administrators, health care providers, and others about obesity and other disease management and wellness programs, as well as other related employee benefit and employment matters. A widely published author on these and other health and disability benefit and management concerns, Ms. Stamer has advised and represented employers, health plans and others on these and other matters for more than 20 years. Author of the Personal Health Care Toolkit, Ms. Stamer also has lead the development of wellness and disease management initiatives for the National Kidney Foundation of North Texas and other organizations. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Health Plans & Employers Can Expect Pressure To Pay For Childhood Obesity Counseling From New American Academy of Pediatrics Report | Corporate Compliance, EEOC, Employee Benefits, ERISA, Fiduciary Responsibility, GINA, Health Plans, Human Resources, Internal Investigations, Leave, Mental Health, Rehabilitation Act, Wellness, Wellness Programs | Tagged: ADA, Disability, Disease Management, EEOC, GINA, Health Care, Health Insurance, Health Plans, HIPAA, Obesity, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans

January 14, 2010

By Cynthia Marcotte Stamer

Regulations published by the Department of Labor today (January 14, 2010) offer employers the opportunity to know their deposit of employee contributions and other amounts withheld from wages or otherwise received from employees with a pension, profit-sharing, health, or other welfare benefit plan is timely for purposes of the fiduciary responsibility requirements of the Employee Retirement Income Security Act (“ERISA”) and the prohibited transaction rules of the Internal Revenue Code (the “Code”) by depositing those amounts with the plan within the seven day period specified in a new safe harbor included in the Regulations.

Certainty about the timeliness of these deposits is important, as mishandling of these employee contributions, participant loan repayments or other employee benefit plan assets frequently triggers judgments, fines and penalties against companies that sponsor employee benefit plans as well as owners, board members, or other members of management. See Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Leaders. Consequently, businesses sponsoring employee benefit programs and owners, officers, directors or other members of management with authority over or responsibility for the handling or application of amounts withheld or collected from employees as employee contributions or plan loans should make arrangements for these amounts to be properly handled and timely deposited with the appropriate employee benefit plan in accordance with these new plan asset regulations.

Title I of ERISA generally requires that employee benefit “plan assets” be held in trust, prudently handled and invested, used for the exclusive benefit of the plan and its participants, and otherwise used and administered in accordance with ERISA’s fiduciary responsibility rules. Meanwhile, the use of “plan assets” of certain employee benefit plans in a manner prohibited by the Code’s prohibited transaction rules also may trigger excise taxes and other penalties.

For purposes of both ERISA and the Code, Labor Department Regulation § 2510.3-102, specifies that amounts (other than union dues) that an employer withholds from wages or otherwise collects from employees as employee contributions or loan repayments to an employee benefit plan generally become plan assets subject to these fiduciary responsibility rules “as of the earliest date on which such contributions or repayments can reasonably be segregated from the employer’s general assets.” Since employers, business owners, members of management can risk exposure to damages, administrative penalties and/or excise taxes, knowing when amounts collected from employees are considered plan assets is a critical first step to managing these risks.

Unfortunately, the subjectivity of this standard leaves room for much uncertainty and debate about the precise deadline by which employee contributions, plan loans and other amounts from employees must be received by the plan. The subjectivity inherent in this standard leaves many employers uncertain about the adequacy of their compliance efforts and frequently fuels debate among plans, debtors, creditors, regulators or others about the when amounts earmarked to be withheld from employee wages cease to be assets of the debtor employer and become plan assets.

To mitigate debate and uncertainty about the timing of these events, Labor Department Regulation § 2510.3-102 as published in final form today includes a new “safe harbor” rule for plans with fewer than 100 participants at the beginning of the plan year. Under the safe harbor, employee contributions, plan loans and other amounts withheld from wages or received from employees for payment to an employee benefit plan are treated as treated timely paid to the plan if deposited with the plan not later than the 7th business day following the day on which such amount is received by the employer (in the case of amounts that a participant or beneficiary pays to an employer), or the 7th business day following the day on which such amount would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant’s wages). While this safe harbor assures employers and others that withhold from wages or receive employee contributions or participant loan payments owing to less than 100 participant plans that their deposit will be considered timely if received by the plan within seven days, the plan asset regulations leave open that deposit with the plan more than 7 after receipt might still be considered timely deposit with the plan under certain circumstance.

Where deposit with the plan is not made within the seven-day period established by the safe harbor, the plan asset rules continue to leave room for great subjectivity in the determination of the deadline for deposit. In addition to the seven-day safe harbor, the plan asset regulations clearly establish bright-line deadlines after which the deposit of employee contribution or plan loan amounts always will be considered untimely. Thus, the plan asset rules provide that the deadline for depositing employee contributions and plan loans with the plan in no event ever extends beyond the applicable of the following dates (the “Latest Date”)

For pension plans, the 15th business day of the month following the month in which the employee contribution or participant loan repayment amounts are withheld or received by the employer;
With respect to a SIMPLE plan that involves SIMPLE IRAs the 30th calendar day following the month in which the participant contribution amounts would otherwise have been payable to the participant in cash; and
For health and other welfare benefit plans, 90 days from the date on which the employee contribution is withheld or received by the employer.

In all other instances, the plan asset regulations leave open to uncertainty and debate when and if an employer’s deposit of employee contributions and plan loans more than seven-days after payroll deduction or receipt but before the Latest Date will qualify as timely for purposes of ERISA Title I or the Code’s prohibited transaction provisions.

Companies and owners, officers and directors of businesses that harm plans by failing to ensure that these amounts are timely deposited into an employee benefit plan or otherwise are involved in the mishandling of these funds frequently become subject to prosecution, damage awards, civil penalties and excise taxes. To mitigate potential exposure to these risks, businesses and leaders of businesses that withhold from wages or collect employee contributions or plan loan payments from employees should make arrangements to ensure that these amounts timely are deposited with the appropriate plans and otherwise handled appropriately in accordance with ERISA and the Code.

If your business or employee benefit plan needs assistance evaluating or responding to these or other employee benefit, or other employment, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.

Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. She is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with these and other applicable federal regulations as well as well as advising and defending employers and others against tax, employee benefit, labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Internal Controls, Internal Investigations, Restructuring, Retirement Plans, Tax | Tagged: Corporate Compliance, defined benefit plan, Employee Benefits, employee contributions, Employers, Employment, Employment Agreements, ERISA, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Internal Controls, Internal Investigations, Labor, Minimum Wage, pension plans, plan loans, Retirement Plans, Risk Management, Tax, welfare plans | Permalink
Posted by Cynthia Marcotte Stamer

Certain Workforce Reductions Trigger Plant Closing Notice & Other Obligations

January 6, 2010

While some businesses report improved business or hiring outlooks for 2010, many others are running out of time before the economic downturn and financing restrictions will force them to implement workforce reductions, close plants, or shut down all or portions of their business operations. Where a distressed business contemplates a plant closing or mass layoff, the business and its leaders should consider its potential responsibilities under the Worker Adjustment and Retraining Notification Act (WARN) and where applicable, make appropriate arrangements to comply or implement the restructuring to minimize or avoid triggering WARN obligations.

In addition to WARN, business contemplating or implementing a plan closing, mass layoff or other reductions in force also should evaluate and make appropriate arrangements to address potential obligations under state plant closing laws, the ARRA Stimulus Bill Extension Rules amended and extended earlier this month and other requirements of COBRA, voluntary or contractually obligated termination pay or other severance obligations, employee benefit, unemployment, and other laws. Read more.

Comments Off on Certain Workforce Reductions Trigger Plant Closing Notice & Other Obligations | Bankruptcy, Corporate Compliance, Employee Benefits, Employers, ERISA, Health Plans | Tagged: Bankruptcy, Employer, layoff, plant closing, reductions in force, WARN | Permalink
Posted by Cynthia Marcotte Stamer

Comments Invited On Burdensomeness of Requirements To Obtain DOL Determination That Benefit Plan Qualifies as As Collectively Bargained Plan

December 30, 2009

By Cynthia Marcotte Stamer

The Employee Benefit Security Administration (EBSA) is inviting public comment on the compliance burdens to comply with its administrative procedure (‘‘procedural rules’’) for obtaining a determination by the EBSA if a particular employee benefit plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of the Employee Retirement Income Security Act (ERISA).

Codified beginning at 29 CFR 2570.15, these procedural rules concern specific criteria set forth in 29 CFR 2510.3–40 which, if met, constitute a finding by EBSA that a plan is collectively bargained. Plans that meet the requirements of the criteria rules are not subject to state law and qualify for delayed compliance, exemption or other special treatment under various requirements of ERISA, the Internal Revenue Code or other applicable requirements. Among other things, overzealous characterization and marketing of self-insured health plans covering employees of multiple employers as collectively bargained and therefore exempt from state insurance regulation has resulted in numerous high profile enforcement actions for insurance fraud or other violations around the country over the past decade.

The procedural rules require applicants to submit certifications and other documentation. EBSA is inviting comments on the appropriateness of the assessment currently published in connection its publication of the procedural rules of the compliance burden estimates these procedural rules

EBSA particularly is interested in comments that:

Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submissions of responses.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employee benefit, employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer is experienced advising and assisting employers, employee benefit plan and their fiduciaries, insurers, financial advisory services, administrators and custodians, debtors, trustees and creditors in bankruptcy and others about plan, process, and product design, administration, documentation, risk management and defense under ERISA, COBRA, HIPAA, labor and employment, tax, state banking and insurance, and other laws. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Comments Invited On Burdensomeness of Requirements To Obtain DOL Determination That Benefit Plan Qualifies as As Collectively Bargained Plan | Corporate Compliance, Employee Benefits, Employers | Tagged: Collective Bargaining, ERISA, Health Plans, Retirement Plans, Union | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks To CPAs About “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” January 12, 2010

December 28, 2009

Accountants and their clients face increasing regulatory and business pressures to protect the sensitive business and personal information collected and maintained in the course of their operation to minimize their exposure to personal identity theft and other cybercrime scams by employees, business partners and others. Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer will speak about “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” to members of the Dallas CPA Society on January 12, 2010 beginning at 2:00 p.m.

Part of the Dallas CPA Society Member Appreciation CPE Series Meeting, Ms. Stamer’s presentation will be part of four hours of free CPE training to be provided at a program open to members only at the Hilton Lincoln Centre Hotel located at 5410 LBJ Freeway, Dallas TX 75240 from 1 p.m. to 4:50 p.m. Central Time. (Parking at the facility costs $5.00). To register or for additional information, see here.

If you need help responding to these developments or other legislative, regulatory or enforcement concerns, Curran Tomko Tarski LLP can help. Curran Tomko and Tarski LLP and its attorneys have significant experience assisting businesses and business leaders to manage and defend privacy, data security, tax employee benefit, employment, health care, environmental, safety, securities and other compliance and risk management concerns.

Curran Tomko Tarksi LLP Partner Cynthia Marcotte Stamer has more than 22 years experience helping businesses to use the law, process and technology to manage people and processes, and to manage technology, privacy and data security, employment and other legal and operational risks affecting their businesses. Author of “Privacy & Securities Standards-A Brief Nutshell,” “Privacy Invasions of Medical Care-An Emerging Perspective,” and “E-Health Business and Transactional Law Other Liability-Tort and Regulatory;” published by The Bureau of National Affairs, Inc., and many other publications, Ms. Stamer has extensive experience advising a accounting firms, law firms, banks and financial services organizations, insurers, consultants, health plans, health care providers and others about HIPAA, FACTA, and other privacy, trade secret and other information security and data breach risk management and compliance concerns. Ms Stamer also speaks, publishes and provides public policy input extensively on data security, technology and other internal controls and risk management matters. Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Ms. Stamer also is Board Certified in Labor & Employment law. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

Comments Off on Stamer Speaks To CPAs About “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” January 12, 2010 | Corporate Compliance, Data Security, EEOC, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, Human Resources, Internal Controls, Malpractice, Privacy, Professional Liability, Protected Health Information, Risk Management | Tagged: Acountant's Liability, Corporate Compliance, CPA, CPE, Employee Benefits, Employer, GINA, Health Insurance, Health Plans, Human Resources, Internal Controls, Medical Coverage, Privacy, Risk Management, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Rising Enforcement and Changing Rules Require Prompt Review & Update of Health Plan Privacy & Data Security Policies & Procedures

December 25, 2009

Health plans and their business associates should review and update their practices and policies concerning the use access and disclosure of protected health information in response to changing requirements and expanding enforcement exposures under the Health Insurance Portability & Accountability Act of 1996 (HIPAA) Privacy and Security Rules.

A series of Office of Civil Rights (OCR) enforcement action against health plans highlights the need for group health plans and insurers to exercise care to comply with HIPAA’s Privacy & Security Rules. For example, OCR recently required a HMO to take a series of corrective actions based on findings from its investigation of a complaint that the HMO impermissibly disclosed a member’s protected health information by sending her entire medical record to a disability insurance company without her authorization. Based on its investigation, OCR found the HMO violated HIPAA by relying on a form to make the disclosure that failed to meet the Privacy Rule requirements to qualify as a valid authorization under the Privacy Rule. Based on these findings, OCR required the HMO among other things:

To create a new HIPAA-compliant authorization form that specifies what records and/or portions of the files will be disclosed, that the respective authorization will be kept in the patient’s record, together with the disclosed information and otherwise to meet the content requirements of the Privacy Rule for an authorization; and
To implement a new policy that directs staff to obtain patient signatures on these forms before responding to any disclosure requests, even if patients bring in their own “authorization” form.

Another action resulted after a national health maintenance organization sent explanation of benefits (EOB) by mail to a complainant’s unauthorized family member. OCR’s investigation determined that a flaw in the health plan’s computer system put the protected health information of approximately 2,000 families at risk of disclosure in violation of the Privacy Rule. To resolve this case, OCR required among other things that the insurer to correct the flaw in its computer system, review all transactions for a six month period and correct all corrupted patient information.

In yet another case, OCR found an employee of a major health insurer impermissibly disclosed the PHI of one of its members without following the insurer’s authorization and verification procedures. Among other corrective actions to resolve the specific issues in the case, OCR required the health insurer to train its staff on the applicable policies and procedures, to take action to mitigate the harm to the individual and to counsel and give a written warning to an employee who made the disclosure.

While OCR declined to impose any civil penalties in any of these three instances, violations of the Privacy Rules have resulted in both criminal prosecutions by the Department of Justice and the payment of large civil settlements to OCR. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information HIPAA Risks Soar As CVS Agrees to Pay $2.25 Million To Resolve HIPAA Charges & Stimulus Bill Amends HIPAA. Furthermore, recent amendments to the Privacy Rules increase the likelihood that health plans and other covered entities violating the Privacy Rules will incur civil penalties. The American Recovery and Reinvestment Act of 2009 (ARRA) amended the Privacy Rules effective October, 2009 to increase the civil penalties for Privacy Rule violations and to include new breach notification requirements for covered entities. Additional ARRA amendments to HIPAA scheduled to take effect February 17, 2010 will further tighten the conditions under which covered entities may use, access or disclose PHI under the Privacy Rules, will expand the circumstances under which health plans and other covered entities will be required to account for dealings with PHI under HIPAA, and will extend the duty to comply with and liability for violations of the Privacy Rules to business associates. In the meanwhile, employees increasingly are alleging Privacy Rule violations as part of their whistleblower or other wrongful discharge claims. See, e.g. Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim.

In light of these changing rules and expanding liabilities, health plans and their business associates need to review and update their Privacy and Security practices, business associate agreements and privacy notices for compliance in light of the expanding enforcement activities of OCR and these evolving Privacy and Security Rules. These and other developments make it imperative that health plans and other covered entities and their business associates immediately review and update their HIPAA and other data security and privacy practices to guard against growing liability exposures under HIPAA and other federal and state laws.

If your organization needs assistance reviewing, updating, administering or defending privacy and data security practices under HIPAA, state data breach or other laws, Curran Tomko Tarski LLP can help. The author of this update, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer has extensive experience advising and assisting health plans, health insurers, and other covered entities and business associates to review, update, document, enforce and defend their HIPAA and other privacy and data security policies and practices. The author of numerous publications on HIPAA and other privacy and data security rules, she also speaks and conducts training extensively on these concerns.

Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with HIPAA and other applicable federal regulations as well as well as advising and defending employers, health plans, insurers and others against privacy, tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the OCR, DOJ,IRS, Department of Labor and other federal and state regulators.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Rising Enforcement and Changing Rules Require Prompt Review & Update of Health Plan Privacy & Data Security Policies & Procedures | Corporate Compliance, Data Security, Employee Benefits, Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Privacy, Protected Health Information, Risk Management | Tagged: ARRA, Health Plans, HIPAA, OCR, PHI, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

3 Articles On Employee Benefit Risk Management Published In ABA RPTE E-Report

December 23, 2009

Curran Tomko Tarski LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer the author of three articles in the December 2009 Issue of the American Bar Association Real Property Probate & Trust Section E-Report:

Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Cynthia Marcotte Stamer is nationally and internationally recognized for her work assisting businesses, employee benefit plan fiduciaries and vendors, insurers, administrative services providers, governments, and other entities to develop administer and defend cost-effective employee benefit other human resources programs, policies and procedures to meet their budgetary, risk management and compliance and other objectives. Board certified in Labor & Employment law, Ms. Stamer applies her extensive experience regarding employment, employee benefit, and other related laws to assists clients in a wide range of business and litigation contexts. The co-founder of the Solutions Law Consortium, Ms. Stamer, also is the publisher of Solutions Law HR & Benefits Update. She speaks and writes extensively about employee benefits and other human resources, compensation and internal controls matters.

If your organization or employee benefit plan needs assistance with employee benefits, labor and employment or other internal controls and risk management matters, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or another Curran Tomko Tarski, LLP attorney of your choice. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

Other Helpful Resources & Information

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to cstamer@cttlegal.com or registering to participate in the distribution of these and other updates on our CTT HR & Employee Benefits Update distributions in blog form via RSS feed here. You also may be interested in staying abreast of emerging internal controls and compliance challenges by reviewing and registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.com.

If you have questions about or need assistance evaluating, commenting on or responding to the Proposed Regulations, the Q&As, or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on 3 Articles On Employee Benefit Risk Management Published In ABA RPTE E-Report | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Employee Benefits, Retirement Plans, Risk Management | Tagged: Corporate Compliance, defined benefit plan, Employee Benefits, Employers, ERISA, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Internal Controls, Managed Care, Medical Coverage, Privacy, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

President Signs Law Extending & Expanding Temporary AARA COBRA Subsidy Requirements For Group Health Plans

December 22, 2009

By Cynthia Marcotte Stamer

Employer and union sponsored group health plans, their sponsors and administrators must act quickly to comply with the extension and expansion of temporary “COBRA Subsidy Rules” for “assistance eligible individuals” originally added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“AARA”) last February.

The Department of Defense Appropriations Act (H.R. 3326) signed into law by President Obama on December 19, 2009 extended the period that employer and union-sponsored group health plans must allow employees and members of their family that lose group health plan coverage due to an involuntary employment loss to continue their group medical coverage under the reduced premium and other temporary ARRA COBRA Subsidy Rules and lengthened the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual.

Original COBRA Subsidy Rules

As originally enacted, the ARRA COBRA Subsidy Rules limited the COBRA premium that a COBRA-covered group health plan could charge a COBRA-eligible employee or dependent whose group health plan eligibility ended due to an involuntary employment loss between September 1, 2008 and December 31, 2009 (“assistance eligible individual”) to 35% of the otherwise applicable COBRA premium (the “Reduced ARRA Premium”) for a period of up to 9 months (the “Subsidy Period”). ARRA dictated that employers sponsoring these group health plans must pay the remaining 65% of the COBRA premium (the “COBRA Subsidy”) for the assistance eligible individual during the Subsidy Period, but allowed employers to seek reimbursement by claiming a payroll tax credit for these COBRA Subsidy payments by complying with applicable IRS procedures. AARA also mandated that group health plans offering a choice of coverage options offer assistance eligible individuals the option to switch coverage options and required group health plans to notify assistance eligible individuals of the special COBRA Subsidy Rules.

H.R. 3326 COBRA Subsidy Rules Extension

As signed into law on December 19, 2009, H.R. 3326:

Extends the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual for an additional two months (from December 31, 2009 to February 28, 2010);
Adds an additional six months (from 9 to 15 months) the Subsidy Period during which an assistance eligible individual experiencing an involuntary loss of employment between September 1, 2008 and February 28, 2010 is entitled to pay the Reduced AARA Premium;
Requires group health plans to notify assistance eligible individuals of the extension; and
Requires group health plans to allow additional time for assistance eligible individuals who had exhausted their original 9-month Subsidy Period before H.R. 3326 extended the Subsidy Period to 15 months to pay the Reduced AARA Premium related to the extension.

Group health plans, their employer or union sponsors, administrators, insurers and service providers will need to act quickly to prepare and provider required updated notifications to assistance eligible individuals of these extended eligibility periods and their resulting rights, and otherwise update their plan documents, procedures, and COBRA notifications in light of these new rules.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. The author of the “Health Plan Eligibility Toolkit,” Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with COBRA and other applicable federal regulations as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on President Signs Law Extending & Expanding Temporary AARA COBRA Subsidy Requirements For Group Health Plans | ARRA, Bankruptcy, COBRA, COBRA Subsidy, Corporate Compliance, Employee Benefits, Employers, ERISA, Health Plans, Human Resources, Insurance, Internal Controls, Public Policy, Stimulus Bill, Tax | Tagged: ARRA COBRA Premium, COBRA, COBRA Subsidy, Corporate Compliance, Employee Benefits, Employers, Employment, ERISA, Health Insurance, Human Resources, Insurance, Insurer, Internal Controls, Labor, Managed Care, Medical Coverage, Stimulus Bill, Subsidy Bill, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Business Leaders

December 18, 2009

By Cynthia Marcotte Stamer

Business owners, executives, board members, and other business leaders of companies facing financial challenges should heed a mounting series of recent fiduciary liability settlement orders, judgments and prosecutions as strong reminders of the potential personal risk they may face if their health, 401(k) or other employee benefit programs are not appropriately funded and administered as required by the Employee Retirement Income Security Act of 1974, as amended (ERISA).

Businesses leaders struggling to deal with economic setbacks frequently may be tempted to use employee benefit plan contributions or funds for added liquidity or otherwise fail to take appropriate steps to protect and timely deposit plan contributions or other plan assets. A long and ever-mounting series of decisions demonstrates the risks of yielding to these temptations for businesses that sponsor these plans and the business leaders that make these decisions.

EBSA Prosecutes Businesses & Executives That Bungle ERISA Obligations

The mishandling of employee benefit obligations by financially distressed companies during the ongoing economic downturn is fueling an increase in Department of Labor Employee Benefit Security Administration (EBSA) enforcement actions against distressed or bankrupt companies and their officers or directors for alleged breaches of fiduciary duties or other mishandling of medical, 401(k) or other pension, and other employee benefit programs sponsored by their financially distressed companies.

EBSA enforcement activities during 2009 continue to highlight the longstanding and ongoing policy of aggressive investigation and enforcement of alleged misconduct by companies, company officials, and service providers in connection with the maintenance, administration and funding of ERISA-regulated employee benefit plans. A review of the Labor Department’s enforcement record makes clear that where the Labor Department perceives that a plan sponsor or its management fails to take appropriate steps to protect plan participants, the Labor Department will aggressively pursue enforcement regardless of the size of the plan sponsor or its plan, or the business hardships that the plan sponsor may be facing.

EBSA reports enforcing $1.3 billion in recoveries related to pension, 401(k), health and other benefits during fiscal year 2009. EBSA has filed numerous lawsuits to compel distressed companies and/or members of their management to pay restitution or other damages for alleged breaches of ERISA fiduciary duties, to appoint independent fiduciaries, or both for plans sponsored by bankrupt or financially distressed companies.

Recent settlements and judgments obtained by the Labor Department and through private litigation document that officers and other members of management participating, or possessing authority to influence, the handling of heath, 401(k) and other pension, or other employee benefit plans regulated by ERISA may be exposed to personal liability if these benefit programs are not maintained and administered appropriately. This risk is particularly grave when the sponsoring company becomes financially distressed or goes bankrupt, as the handling of employee benefit and other responsibilities becomes particularly disrupted and the lack of company liquidity often leaves executives and service providers as the only or best source of recovery for government officials and private plaintiffs.

Executives Ordered To Pay To Make Things Right

In the December 2, 2009 decision in Solis v. Struthers Industries Inc., for instance, a federal district judge ordered business leader Jomey B. Ethridge liable to pay $303,084.61 to restore assets belonging to the 401(k) plan of bankrupt Struthers Industries in an ERISA fiduciary responsibility action filed by the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA). Filed by the EBSA in the U.S. District Court for the Southern District of Mississippi, the Struthers Industries lawsuit alleged that Ethridge and Struthers Industries allowed employee contributions to be used for purposes other than providing benefits resulting in losses of $310,084.57. According to court documents, Struthers Industries designed and built heat transfer and pressure vessels at its Gulfport facility. In 2001, its 401(k) plan had 278 participants and assets totaling $8,279,083. The company filed for bankruptcy in 2003, and its assets were auctioned off in 2005. An independent fiduciary was appointed by the court in 2007 to manage the plan’s assets. The ordered Ethridge personally to pay $303,084.61 in restitution to the plan for his involvement in the mishandling of the plan’s assets. The order also bars Ethridge from acting as a benefit plan fiduciary in the future.

The Struthers Industries decision comes on the heels of EBSA’s success in Solis v. T.E. Corcoran Co. Inc. last month in recovering more than $89,000 from business owners and operators found to have breached fiduciary duties to the participants of the T.E. Corcoran Co. Inc. Profit Sharing Plan by improperly loaning plan assets to he plan sponsor and an affiliated company. The Labor Department sued T.E. Corcoran Co. and its owners, John F. Corcoran and Thomas E. Corcoran Jr., alleging that the company and its owners caused the plan to lend money to the two companies at below market interest rates, without terms of payment and without documentation in violation of ERISA. The suit filed in the U.S. District Court for the District of Massachusetts, also named as a defendant Coran Development Co. Inc., a company co-owned by the Corcorans. T.E. Corcoran Co. Inc. was the sponsor and administrator of the plan, while John and Thomas Corcoran were trustees of the plan, making all three fiduciaries and parties in interest with respect to the plan. ERISA specifically prohibits the use of employee benefit plan funds to benefit parties in interest.

The Corcoran judgment requires that the plan account balances of defendants John F. Corcoran and Thomas E. Corcoran Jr. be offset in the amount of $89,273 plus interest to be allocated to the accounts of the other plan participants. The offset will make whole all of the accounts of the non-trustee participants. In addition, the court order appoints an independent trustee to oversee the final distribution of the plan’s assets and the proper termination of the plan, requires the defendants to cooperate fully with the independent trustee in this process, and then prohibits them from serving as fiduciaries to any ERISA-covered plan for 10 years.

A complex maze of ERISA, tax and other rules make the establishment, administration and termination of employee benefit plans a complicated matter. When the company sponsoring a plan goes bankrupt or becomes distressed, the rules, as well as the circumstances can make the administration of these responsibilities a powder keg of liability for all involved. Companies and other individuals that in name or in function possess or exercise discretionary responsibility or authority over the maintenance, administration or funding of employee benefit plans regulated by ERISA frequently are found to be accountable for complying with the high standards required by ERISA for carrying out these duties based on their functional ability to exercise discretion over these matters, whether or not they have been named as fiduciaries formally.

Despite these well-document fiduciary exposures and a well-established pattern of enforcement by the Labor Department and private plaintiffs, many companies and their business leaders fail to appreciate the responsibilities and liabilities associated with the establishment and administration of employee benefit plans. Frequently, companies sponsoring their employee benefit plans and their executives mistakenly assume that they can rely upon vendors and advisors to ensure that their programs are appropriately established the establishment and maintenance of these arrangements with limited review or oversight by the sponsoring company or its management team.

In other instances, businesses and their leaders do not realize that the functional definition that ERISA uses to determine fiduciary status means that individuals participating in discretionary decisions relating to the employee benefit plan, as well as the plan sponsor, may bear liability under many commonly occurring situations if appropriate care is not exercised to protect participants or beneficiaries in these plans.

For this reason, businesses providing employee benefits to employees or dependents, as well as members of management participating in, or having responsibility to oversee or influence decisions concerning the establishment, maintenance, funding, and administration of their organization’s employee benefit programs need a clear understanding of their responsibilities with respect to such programs, the steps that they should take to demonstrate their fulfillment of these responsibilities, and their other options for preventing or mitigating their otherwise applicable fiduciary risks.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Business Leaders | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Internal Controls, Internal Investigations, Professional Liability, Restructuring, Retirement Plans | Tagged: Bankruptcy, Corporate Compliance, Distressed Company, E&O Liability, EBSA, ERISA, Fiduciary Liability, Fiduciayr Responsibility, Officers & Directors Liability, Reorganization, Restructuring | Permalink
Posted by Cynthia Marcotte Stamer

Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA

December 14, 2009

By Cynthia Marcotte Stamer

Businesses sponsoring employee benefit plans and officers, directors, employees and others acting as fiduciaries with respect to these employee benefit plans should take steps to confirm that all of the appropriate fiduciary bonds required by the Employee Retirement Income Security Act of 1974, as amended (ERISA) are in place, that all employee benefit plans sponsored are appropriately covered, and that all individuals serving in key positions requiring bonding are covered and appropriately qualified to serve in that capacity under ERISA and the terms of the bond. Adequate attention to these concerns not only is a required component of ERISA’s fiduciary compliance, it also may provide invaluable protection if a dishonesty or other fiduciary breach results in a loss or other exposure.

ERISA generally requires that every employee benefit plan fiduciary, as well as every other person who handles funds or other property of a plan (a “plan official”), be bonded if they have some discretionary control over a plan or the assets of a related trust. While some narrow exceptions are available to this bonding requirement, these exceptions are very narrow and apply only if certain narrow criteria are met.

Plan sponsors and other plan fiduciaries should take steps to ensure that all of the bonding requirements applicable to their employee benefit plans are met at least annually. Monitoring these compliance obligations is important not only for the 401(k) and other retirement plans typically associated with these requirements, but also for self-insured medical and other ERISA-covered employee benefit plans.

The bonding and credentialing audit should include adopting a written policy requiring appropriate credentialing and bonding and verifying that appropriate bonds are in place for all internal personnel and outside service providers subject to the bonding requirements.

Steps should be taken to ensure that the required fiduciary bonds are secured in sufficient amounts and scope to meet ERISA’s requirements. In addition to confirming the existence and amount of the fiduciary bonds, plan sponsors and fiduciaries should confirm that each employee plan for which bonding is required is listed in the bond and that the bond covers all individuals or organizations that ERISA requires to be bonded. For this purpose, the review should verify the sufficiency and adequacy of bonding in effect for both internal personnel as well as outside service providers. In the case of internal personnel, the adequacy of the bonds should be reviewed annually to ensure that bond amounts are appropriate. Unless a service provider provides a legal opinion that adequately demonstrates that an ERISA bonding exemption applies, plan sponsors and fiduciaries also should require that third party service providers provide proof of appropriate bonding as well as to contract to be bonded in accordance with ERISA and other applicable laws, to provide proof of their bonded status or documentation of their exemption, and to provide notice of events that could impact on their bonded status.

When verifying the bonding requirements, it also is a good idea to conduct a criminal background check and other prudent investigation to reconfirm the credentials and suitability of individuals and organizations serving in fiduciary positions or otherwise acting in a capacity covered by ERISA’s bonding requirements. ERISA generally prohibits individuals convicted of certain crimes from serving, and prohibits plan sponsors, fiduciaries or others from knowingly hiring, retaining, employing or otherwise allowing these convicted individuals during or for the 13-year period after the later of the conviction or the end of imprisonment, to serve as:

An administrator, fiduciary, officer, trustee, custodian, counsel, agent, employee, or representative in any capacity of any employee benefit plan,
A consultant or adviser to an employee benefit plan, including but not limited to any entity whose activities are in whole or substantial part devoted to providing goods or services to any employee benefit plan, or
In any capacity that involves decision-making authority or custody or control of the moneys, funds, assets, or property of any employee benefit plan.

Knowing or intentional violation of this prohibition may expose violating party to fines of up to $10,000, imprisonment for not more than five years, or both. Even where the violation is not knowing or willful, however, allowing disqualified persons to serve in fiduciary roles can have serious consequences such as exposure to Department of Labor penalties and personal liability for breach of fiduciary duty for damages resulting to the plan if it is established that the retention of services was an imprudent engagement of such an individual that caused the loss. When conducting such a background check, care should be taken to comply with the applicable notice and consent requirements for conducting third party conducted background checks under the Fair Credit Reporting Act (FCRA) and otherwise applicable law. As such background investigations generally would be conducted in such a manner as to qualify as a credit check for purposes of the FCRA, conducting background checks in a manner that violates the FCRA credit check requirements itself can be a source of significant liability.

Curran Tomko Tarski LLP Attorneys Can Help

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers, fiduciaries, bankruptcy trustees, investors, purchasers and others about defined benefit plan and other employee benefit, labor and employment, compensation and other related concerns involved with distressed businesses or benefit plans, bankruptcy and restructuring transactions and other corporate or plan related events. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a Joint Committee on Employee Benefit Council Member, Ms. Stamer has advised and represented these and other business clients on employee benefit, labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Her experience includes significant experience representing and advising employee benefit plan sponsors, fiduciaries, and service providers and their affiliates; investors, creditors, bankruptcy trustees, and others about employee benefit, labor and employment and related services and compensation concerns affecting transactions involving bankrupt or distressed corporations. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA | Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Human Resources, Internal Controls | Tagged: 401(k) Plan, ERISA, Fiduciary Responsibility, Health Plan, investment advisor, retirement plan, tpa | Permalink
Posted by Cynthia Marcotte Stamer

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

December 8, 2009

By Cynthia Marcotte Stamer

The U.S. Department of Labor (Labor Department) plans to implement a host of new employee benefit and employment regulations seeking to strengthen employee benefit, wage and hour, safety and other protections with greater transparency and disclosure, the Labor Department announced yesterday.

Employee Benefits, Wage & Hour, OSHA & Other Rules Seek To Protect Workers With Transparency

Employee Benefits Security Administration (EBSA) plans to implement a host of new rules designed to strengthen retirement security by expanding the private employee benefit plan disclosure requirements and enhancing the availability of information to pension plan participants and beneficiaries and employers, according to the Department of Labor (DOL) 2009 Regulatory Agenda (the “Regulatory Agenda”) announced yesterday.

According to the Regulatory Agenda, EBSA plans to promote these goals through the implementation of a host of new rules including:

Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans, which would increase transparency between individual account pension plans and their participants and beneficiaries by ensuring that participants and beneficiaries are provided the information they need, including information about fees and expenses, to make informed investment decisions.
Amendment of Standards Applicable to General Statutory Exemption for Services, which would require service providers to disclose to plan fiduciaries services, fees, compensation and conflicts of interest information.
Annual Funding Notice for Defined Benefit Plans, which would require defined benefit plan administrators to provide all participants, beneficiaries and other parties with detailed information regarding their plan’s funding status.
Periodic Pension Benefits Statements, which would require pension plans to provide participants and certain beneficiaries with periodic benefit statements.
Multiemployer Plan Information Made Available on Request, which would require pension plan administrators to provide copies of financial and actuarial reports to participants and beneficiaries, unions and contributing employers on request.

The 2009 Regulatory Agenda highlights the most noteworthy and significant regulatory projects that the Labor Department has established for the EBSA, the Employment Standards Administration (ESA), Mine Safety and Health Administration (MSHA), Occupational Safety and Health Administration (OSHA), and Employment and Training Administration (ETA) for the upcoming year. In addition to the transparency rules planned for EBSA, the 2009 Regulatory Agenda also indicates that employers can expect new Labor Department regulations targeting transparency in other areas. These include:

The MSHA to propose a rule on Notification of Legal Identity, which would require mine operators to provide increased identification information, would allow the agency to better target the most egregious and persistent violators and deter future violations.
The Office of Labor-Management Standards’ to propose regulations on Notification of Employee Rights Under Federal Labor Laws, which would implement Executive Order 13496 and require all Government contracting agencies to include a contract clause requiring contractors to inform workers of their rights under Federal labor laws.
The Wage and Hour Division to update its regulations about Records to be Kept by Employers Under the Fair Labor Standards Act to enhance the transparency and disclosure to workers as to how their wages are computed and to allow for new workplace practices such as telework and flexiplace arrangements.
OSHA to modify its Hazard Communication Standard to require standardized labeling requirements and order of information for safety data sheets and to update its Occupational Injury and Illness Recording and Reporting Requirements rule, which would propose the collection of additional data to help employers and workers track injuries at individual workplaces, improve the Nation’s occupational injury and illness information data, and assist the agency in its enforcement of the safety and health workplace requirements.

Other Employee Benefit Regulations Planned

Beyond its planned EBSA transparency initiative, the 2009 Regulatory Agenda reflects that other EBSA regulatory priorities for the year ahead include:

Issue guidance implementing the group health plan Genetic Information Nondiscrimination Act of 2008 (GINA) amendments to ERISA which generally prohibit group health plans from discriminating in health coverage based on genetic information and from collecting genetic information. This will be a joint rulemaking action with the Departments of Health and Human Services and the Treasury.
Provide guidance regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) amendments to ERISA. MHPAEA creates parity for mental health and substance use disorder benefits under group health plans by mandating that any financial requirements and treatment limitations applicable to mental health and substance abuse disorder benefits to be no more restrictive than predominant requirements or limitations applied to substantially all medical and surgical benefits covered by a plan.
Issue guidance clarifying the circumstances under which health care arrangements established or maintained by state or local governments for the benefit of non-governmental employees do not constitute an employee welfare benefit plan for purposes of ERISA.
Propose amendments to its regulations to clarify the circumstances under which a person will be considered a fiduciary when providing investment advice to employee benefit plans and their participants and beneficiaries of such plans.
Explore steps it can take by regulation, or otherwise, to encourage the offering of lifetime annuities or similar lifetime benefits distribution options for participants and beneficiaries of defined contribution plans.

Employers and employee benefit plan sponsors, fiduciaries, and service providers should take into account these planned regulatory changes for budgeting and program design purposes and keep alert for announcements of proposed or final regulations or other guidance in these and other areas.

If your organization needs assistance with monitoring, assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations | Absenteeism, ADA, Affirmative Action, Corporate Compliance, Defined Benefit Plans, EEOC, Employee Benefits, Employers, ERISA, family leave, GINA, Government Contractors, Human Resources, Military Leave, OFCCP, OSHA, Retirement Plans, Risk Management, Safety, Uncategorized, Wellness | Tagged: COBRA, Corporate Compliance, defined benefit plan, Disability Discrimination, Disease Management, Employee Benefits, Employers, Employment, ERISA, GINA, Human Resources, Insurance, Internal Controls, Medical Coverage, Military Leave, Minimum Wage, Occupational Injury, Overtime, Privacy, Retirement Plans, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

DOL Shares 2010 Regulatory Plans Monday, December 7; Get A Sneak Peek on Its Plans

December 5, 2009

Get a peek at the U.S. Department of Labor’s (DOL’s) regulatory plans for 2010 on Monday, December 10, 2009.

On Monday, Dec. 7, the DOL will release its annual regulatory agenda for the upcoming year. The same day, it also will video cast remarks by Secretary Hilda L. Solis outlining the department’s regulatory agenda beginning at 10 a.m. EST. From 2 to 3 p.m. EST Ssecretary Solis alsowill host a live Web chat open to the public to discuss the contents of the agenda. Questions may be submitted in advance of the chat following the video presentation. Register to join the chat on Monday here.

If your organization needs assistance with assessing, managing or defending labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E) PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take EffectBusinesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures OSHA Final Rule Updates OSHA Personal Protective Equipment Standards “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on DOL Shares 2010 Regulatory Plans Monday, December 7; Get A Sneak Peek on Its Plans | Absenteeism, Affirmative Action, COBRA, Corporate Compliance, Disease Management, EEOC, Employee Benefits, Employers, Employment Agreement, ERISA, family leave, FMLA, GINA, Government Contractors, Health Plans, HIPAA, Human Resources, Internal Controls, Internal Investigations, Leave, medical leave, Military Leave, Nonresident aliens, OFCCP, OSHA, Public Policy, Reporting & Disclosure, Retaliation, Safety, USERRA, Wage & Hour, Wellness, Whistleblower | Tagged: ADA, COBRA, Compensation, Corporate Compliance, defined benefit plan, Disease Management, EEOC, Employee Benefits, Employer, Employers, Employmemnt Liability, Employment, Employment Agreements, employment discrimination, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Internal Controls, Internal Investigations, Labor, Light Duty, Managed Care, Medical Coverage, Military Leave, Minimum Wage, Occupational Injury, Overtime, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business

December 4, 2009

Underfunded defined benefit pension plans raise significant liability risks for businesses that sponsor or who belong to control or affiliated service groups that include a business that sponsors an underfunded defined benefit plan as well as for businesses contemplating lending to, investing in, or purchasing stock or assets of these businesses.

Radical drops in plan asset values attendant to the economic downturn and Congress’ amendment of federal funding rules to accelerate the funding of defined benefit plans have triggered a defined benefit plan underfunding epidemic. Indeed, challenges of meeting their defined benefit plan funding obligations increasingly are resulting in an unprecedented number of distress terminations and forcing many businesses to restructure or even file bankruptcy. Currently, recently released Internal Revenue Service (IRS) and Pension Benefit Guarantee Corporation (PBGC) guidance makes it necessary or desirable that sponsoring businesses or fiduciaries of defined benefit plans take action before year end or shortly thereafter to meet critical compliance deadlines.

Complex New Rules Increase Underfunding Risks & Obligations

The new rules seek to implement Congressional amendments to the pension funding requirements intended to short up the security of the U.S. pension system and the pension guarantee insurance program run by the PBGC under the Pension Protection Act of 2006, as amended (PPA). Under the PPA, single-employer plans that are between 60 and 80 percent funded may not pay lump sums or other accelerated distribution forms with values in excess of: (1) 50 percent of the amount that would be paid absent the restriction or, if smaller (2) the present value of PBGC’s maximum guarantee computed under PBGC guidance. The PPA also requires certain funding certifications, notices and other requirements.

Enacted while the economy was strong, the burden of meeting the added pension funding demands resulting from the decreased earnings and acceleration of benefits associated with the economic downturn combined with the new rules’ expedited funding requirements are overwhelming many plan sponsors. With the economic downturn, however, the prospects for Congressional or other regulatory relief are not good. The PBGC is straining to keep up. The 2009 Annual Management Report submitted to Congress in November shows the PBCG ended fiscal year 2009 with an overall deficit of $22 billion, compared with the $11.2 billion deficit for fiscal year 2008. The deficit in the PBGC’s insurance program for single-employer pension plans widened to $21.1 billion for the year, $10.4 billion more than the prior-year’s $10.7 billion shortfall. The separate insurance program for multiemployer pension plans posted a deficit of $869 million, exceeding last year’s $473 million shortfall by $396 million. Accordingly, the PBGC and the IRS have continued to roll out a series of complex new regulations to implement the new rules.

New Defined Benefit Plan Regulations Complex Maze of Burdensome Requirements

Single employer pension plans generally must begin complying with final funding regulations published by the IRS in October during 2010; however, many plan sponsors are likely to find it desirable to adopt certain amendments or take other steps during 2009. Under these rules, underfunded plan benefit accruals and certain amendments will be curtailed and certain notifications, certifications and other actions required. Timely compliance with these mandates can help to mitigate some of the otherwise draconian liability associated with pension plan underfunding while helping to mitigate the continuing growth of these liabilities in an already underfunded pension plan.

Under section 101(f) of ERISA and guidance issued by the Department of Labor, starting with plan years beginning on or after January 1, 2008, single-employer plans with liabilities that exceed plan assets by $50 million or more must provide PBGC with a copy of the Annual Funding Notice by the Annual Funding Notice due date. Single-employer plans with liabilities that exceed plan assets by less than $50 million must provide PBGC with a copy of the Annual Funding Notice within 30 days of receiving a written request from PBGC. See Department of Labor Field Assistance Bulletin No. 2009-01 (Feb. 10, 2009), here.

In addition, defined benefit pension plans, their sponsors and fiduciaries also must contend with a host of complex new PBGC insurance, premium, certification and reporting and other requirements and guidance. For instance:

On March 16, 2009, PBGC published a Final Rule that amends its regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010). The final rule implements Pension Protection Act of 2006 changes to ERISA section 4010 and makes other modifications and clarifications to the reporting requirements. PBGC expects to update the e-4010 filing application and related materials (e.g., filing instructions) within a few days. Until the application is updated, filers should not attempt to enter data for post-PPA filing; such data will be lost when the application is updated. However, first-time filers may log on to the application to set up an account and familiarize themselves with the application, through here. The first filings under the new rules were due April 15, 2009.

On November 23, 2009, PBGC published:

A Request For Public Comment on purchases of irrevocable commitments to provide plan benefits before initiating a standard termination under ERISA section 4041. Comments are due by January 22, 2010;
A Proposed Rule that would conform PBGC’s reportable events regulation under section 4043 of ERISA and several other PBGC regulations to statutory and regulatory changes resulting from the Pension Protection Act of 2006. The proposed rule also would eliminate most of the automatic waivers and filing extensions, add two new reportable events, and make some other changes and clarifications. Comments on the proposed rule are due by January 22, 2010;
Asked the Office of Management and Budget a request for approval of changes to the reporting requirements under ERISA Part 4043;
Issued Technical Update 09-4, which extends guidance provided in Technical Update 09-1 and Technical Update 09-3 for 2010 plan years. PBGC expects to supersede the guidance in Technical Update 09-4 with a final rule amending the reportable events regulation sometime during 2010.

On December 1, 2009, PBGC:

Published a Final Rule amending its valuation regulation by substituting a new table for selecting a retirement rate category. The new table applies to any plan being terminated either in a distress termination or involuntarily by the PBGC with a valuation date falling in 2010.
Published a Final Rule removing the maximum guarantee table from its benefit payment regulation and telling the public where to find maximum guaranteeable benefits on its Web site. The maximum guaranteeable monthly benefit for 2010 is $4,500.00 (unchanged from 2009).
Published a Notice stating that the per-participant flat-rate premium for single-employer plans for plan year 2010 is $35.00 (up from $34.00 for Plan Year 2009) and $9.00 (unchanged from Plan Year 2009) for multiemployer plans. By law, the premium rates are adjusted for inflation each year based on changes in the national average wage index. The notice states that no further flat premium rate notices will be published in the Federal Register and tells the public where to find flat premium rates on its Web site.

On December 4, 2009, PBGC submitted draft information requirements to the Office of Management and Budget in connection with PBGC’s pending Proposed Rule on Reportable Events are now available on PBGC’s Web site. PBGC has posted the information that would be required (under the proposed rule) to be reported on Form 10, Form 10-A, and Form 200 and the corresponding draft instructions.

Previously, during 2009, the PBGC also:

Announced an increase in the per-participant flat-rate premium for plan year 2010 to $35.00 for single-employer plans (up from $34.00 for plan year 2009) and to $9.00 for multiemployer plans (unchanged from plan year 2009).
Published certain relief for certain small plans from part 4043 reporting requirements if a required quarterly contribution for the 2009 plan year is not timely made to a plan, and the failure to make the contribution is not motivated by financial inability under Technical Update 09-3.. The Technical Update waives reporting in such cases if the plan has fewer than 25 participants and provides a simplified reporting requirement if the plan has at least 25 but fewer than 100 participants.
Issued Technical Update 09-2, which allows 4010 filers to determine benefit liabilities for 4010 reporting purposes using the form of payment assumption described in 29 CFR § 4044.51 (generally an annuity form of payment). This is an alternative to the form-of-payment-assumption under § 4010.8(d)(2)(i) of PBGC’s Final Regulation On 4010 Reporting, which requires filers to use the form-of-payment assumption for determining the minimum required contribution.
Updated the e-4010 filing application and related materials have been updated to reflect changes in the March 16, 2009 Final Rule. The application is now available to accept post-Pension Protection Act of 2006 filings.

Free December 10 Study Group Teleconference Examines New Requirements

Persons concerned about these issues may wish to consider participating in a free one hour “Study Group” conference call that the American Bar Association RPTE Employee Benefits & Other Compensation Group (Group) plans to host December 10, 2009, at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific. The Study Group will explore a number of current/breaking issues of interest to practitioners and their clients dealing with single-employer defined benefit plans. Key topics will include:

Recent Regulatory Guidance on Funding and Benefit Restrictions
Mandatory and Optional Amendments to be Adopted by 2009 Plan Year End
PBGC Proposal to Eliminate Most Reporting Waivers and Extensions (and PBGC Interim Guidance)
Pre-Standard Termination Irrevocable Commitment Purchases (PBGC Comment Request)
Update on PBGC Pursuit of “Downsizing” Liability (ERISA Section 4062(e)).

The conference call will be moderated by:

Group Chair, Cynthia Marcotte Stamer, Curran Tomko Tarski LLP, Dallas, TX;
Group’s Plan Termination Committee Chair, Harold Ashner, Keightley & Ashner LLP, Washington, DC, and
Group’s Plan Termination Committee Vice-Chair, Henry Talavera, Hunton & Williams LLP, Dallas, TX.

Interested persons can participate in the Study Group by dialing 1-800-504-8071 and entering the passcode 9885683. To assist the Group in anticipating the number of participants, the Group encourages those planning to participate to e-mail Group Chair Cynthia Marcotte Stamer at here to RSVP.

Curran Tomko Tarski LLP Attorneys Can Help

If your business needs assistance with distressed or bankruptcy company, defined benefit plan funding or other employee benefit, human resources, corporate ethics, and compliance practices, or other related concerns or in responding to restructuring and bankruptcy, employment or employee benefits related charges, audits, investigations or suits, please contact Curran Tomko Tarski LLP Corporate Restructuring & Bankruptcy Chair G. Michael Curran at mcurran@cttlegal.com, (214) 270-1402, Employment Practice Chair Cynthia Marcotte Stamer at cstamer@cttlegal.com, (214) 270-2402, or your favorite Curran Tomko Tarski, LLP attorney.

Mr. Curran provides legal counsel on all aspects of out-of-court reorganizations and workouts, as well as bankruptcy proceedings. He has represented debtors, debtors’ and creditors’ committees, and third party purchasers in a variety of complex factual and legal scenarios, and has also acted as special counsel. His experience includes substantial experience addressing defined benefit and other employee benefit and human resources issues arising in connection with restructuring, bankruptcy and other significant business events and transactions.

Ms. Stamer is experienced with assisting employers, fiduciaries, bankruptcy trustees, investors, purchasers and others about defined benefit plan and other employee benefit, labor and employment, compensation and other related concerns involved with distressed businesses or benefit plans, bankruptcy and restructuring transactions and other corporate or plan related events. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a Joint Committee on Employee Benefit Council Member, Ms. Stamer has advised and represented these and other business clients on employee benefit, labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Her experience includes significant experience representing and advising employee benefit plan sponsors, fiduciaries, and service providers and their affiliates; investors, creditors, bankruptcy trustees, and others about employee benefit, labor and employment and related services and compensation concerns affecting transactions involving bankrupt or distressed corporations. Ms. Stamer also speaks and writes extensively on these and other related matters. Among her many publications is her November, 2009 publication, “Calculation of Minimum Contributions Required For Single Employer Pension Plans: The Final Rules for The Measurement of Assets and Liabilities For Pension Funding Purposes under Final Treasury Regulation Section 1.430(d)-1.” Persons interested in a copy of this publication may contact Ms. Stamer. See here for additional information about Ms. Stamer and her experience, here to review other recent updates, here for other articles and publications, and review selected training and presentations here or contact Ms. Stamer directly.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business | Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, ERISA, Income Tax, Reporting & Disclosure, Retirement Plans, Risk Management, Tax | Tagged: Corporate Compliance, defined benefit plan, Employee Benefits, Employers, Employment Agreements, ERISA, ERISA 302, Human Resources, Internal Controls, IRC 412, Labor, PBGC, pension plan, pension plan funding, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities

December 1, 2009

The Justice Department yesterday (November 30, 2009) filed suit against MasTec Advanced Technologies for allegedly willfully violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by discriminating against Eugene C. Burress, a U.S. Army Reserve member, on the basis of his military service and by failing to offer Burress an appropriate reemployment position when he returned from military service. The 22nd USERRA lawsuit filed during 2009 by the Civil Rights Division on behalf of service members, the lawsuit highlights the growing liability risks that employers face for failing to properly comply with the evolving military leave mandates of USERRA and other applicable laws.

The MasTec Lawsuit

In a complaint filed in federal court in West Virginia, the Justice Department alleges that, in January 2008, Burress, then a field technician supervisor at MasTec’s Martinsburg, W.Va., office, was called to active duty in the U.S. Army, and that Burress notified his supervisor at MasTec of his upcoming military service. Prior to giving this notice of call to active duty, Burress’ supervisor had informed Burress that the site manager position at the office would be vacant soon and offered the position to Burress when it became available. Burress accepted this offer. While Burress was engaged in military service, however, MasTec promoted another MasTec employee to site manager. Burress filed a complaint with the Labor Department’s Veterans’ Employment and Training Service, which investigated and attempted to resolve Burress’s USERRA complaint before referring it to the Justice Department. The Justice Department seeks back pay and other benefits Burress would have received had MasTec reemployed him as required by USERRA, as well as liquidated damages for MasTec’s willful violation of USERRA.

Evolving USERRA & Other Military Service Related Leave Requirements Make Compliance Review Advisable

USERRA prohibits an employer discriminating against an employee if the employee’s service or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such service or obligation for service. USERRA also requires that service members on leave be offered the opportunity to continue group health plan coverage for certain periods while on leave. Subject to certain limitations, USERRA also requires that employers offer reemployment promptly to service members who leave their civilian jobs to serve in the military in the same positions or in positions comparable to the positions they would have held had their employment not been interrupted by military service and be reinstated to all benefits and other rights of employment at that time. Although Final Regulations construing these requirements were issued in 2005, many employers have yet to update their practices and policies to comply with the current USERRA mandates. Furthermore, compliance with these mandates often creates various practical operational challenges even for U.S. businesses who fully understand these rules.

In addition to USERRA, U.S. businesses also may need to update their policies and procedures to comply with new military leave related rights recently extended to service members and their families under amendments to the Family & Medical Leave Act of 1990 (FMLA) that took effect on January 28, 2008 under the National Defense Authorization Act for Fiscal Year 2008 (2008 NDA). In addition to the otherwise applicable provisions of the FMLA, the 2008 NDA amended the FMLA to require under certain circumstances that covered employers grant FMLA Leave:

For up to 26 weeks FMLA Leave to a FMLA-covered employees who is the spouse, parent, child, or next of kin of a service member who incurred a serious injury or illness on active duty in the Armed Forces (Caregiver Leave); and
For up to 12 weeks of FMLA Leave to a FMLA-covered employee who has a spouse, parent, or child who is on or has been called to (or notified of an impending call or order to) active duty in the Armed Forces in response to an event that is a “qualifying exigency” (Military Exigency Leave).

Final regulations implementing the 2008 NDA FMLA mandates and other FMLA requirements took effect on January 16, 2009.

With these regulations barely dry, however, Congress this Fall further expanded these FMLA protections as part of amendments enacted by the National Defense Authorizations Act 2010 (2010 NDAA) that took effect October 29, 2009. Among other things, the 2010 NDAA:

Expanded FMLA Military Exigency Leave to apply to active duty service members deployed to a foreign country. Previously, Military Exigency Leave only applied to reservists.
Expanded Military Caregiver Leave to include care for a service member who aggravates a prior injury or illness during the course of his military service. Previously, aggravation of an illness or injury did not qualify for Military Caregiver Leave; and
For periods after the Secretary of Labor issues regulations defining the term “qualifying injury or illness” for a veteran, extended Military Caregiver Leave to include veterans who undergo medical treatment, recuperation or therapy for a qualifying injury or illness, as long as the service member was a member of the reserves or armed forces at any time during the five years before the veteran undergoes treatment. Military Caregiver Leave previously was not inapplicable to veterans.

Following these amendments, Congress continues to contemplate various other proposed expansions to these and other military service employment and other rights.

The recent changes to federal employment protections for military service members and their families and the increased emphasis on enforcement of these requirements make it advisable that employers review and revise their military leave, family leave and other employment policies,, employee benefit plans, and other policies and practices for compliance with current rule, while remaining alert for statutory or regulatory changes to these requirements. Employers also should confirm that their employment posters and leave notification documentation and communications are up to date.

While reviewing current military service related leave policies and practices, employers also should confirm that they complying with recently revised Internal Revenue Service rules about reporting and withholding on differential pay paid to employees during military leave. This Spring, the Internal Revenue Service updated its guidance about these requirements. Under Revenue Ruling 2009-11, employers that pay differential pay to employees absent on active duty military leave job must treat as taxable wages for income tax purposes, withhold income tax on and report as W-2 wages military duty differential pay. However, Revenue Ruling 2009-11 states employers need not withhold or pay Federal Insurance Contributions Act (“FICA”) or Federal Unemployment Tax Act (“FUTA”) taxes on those payments.

If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities | Absenteeism, Affirmative Action, Corporate Compliance, Employee Benefits, Employers, Employment Tax, ERISA, FMLA, Government Contractors, Health Plans, Human Resources, Income Tax, Internal Controls, Leave, Military Leave, Retirement Plans, Risk Management, Tax | Tagged: Corporate Compliance, employment discrimination, employment litigation, FMLA, Military Leave, military Service, Risk Management, USERRA | Permalink
Posted by Cynthia Marcotte Stamer

Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

November 30, 2009

As the Centers for Disease Control (CDC) continues cautioning Americans to expect a resurgence of the H1N1 virus, employers should continue to take prudent steps to defend their organization and their workers against a widespread H1N1 outbreak and the attendant lost time, health and disability costs, OSHA and other liability exposures and other personal and financial consequences likely to result from an outbreak.

Employers wishing to deter the spread of the disease in their workplace should educate workers about these recommendations and consider taking steps to encourage workers to comply with these recommendations. When planning or taking steps to protect their workplaces from the H1N1 virus pandemic or other outbreaks of communicable diseases, however, employers must use care to avoid violating the Americans With Disabilities Act or other employment laws.

Preventing, Recognizing & Mitigating Risks of H1N1

Although the number of reported cases of H1N1 virus cases has declined in many states in recent weeks, CDC officials are warning American’s that the crisis is not over yet. CDC officials last week warned Americans to expect H1N1 infection to rise as the holiday approaches and the winter progresses. With flu activity already higher than what is seen during the peak of many regular flu seasons and the H1NA virus accounting for almost all of the flu viruses identified so for this season, Accordingly, the CDC continues to encourage Americans to be alert for symptoms of H1N1 or other flu and to take other precautions including to get vaccinated.

Employers should continue to encourage workers and their families to take precautions to avoid catching the virus, to be on the watch for H1N1 virus or other flu infection and to respond appropriately if they, members of their families or others in the workplace exhibit these symptoms. To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC here. Businesses and other concerned parties also can track governmental reports about the swine flu and other pandemic concerns at here.

For those not already suffering from the virus and particularly for those at higher risk, the CDC continues to recommend vaccination. People recommended by the CDC to receive the vaccine as soon possible include: health care workers; pregnant women; people ages 25 through 64 with chronic medical conditions, such as asthma, heart disease, or diabetes; anyone from 6 months through 24 years of age; and people living with or caring for infants under 6 months old. As the vaccine becomes available, many employers are encouraging workers and their families to get vaccinated by offering vaccination clinics at or near their worksites, arranging for health plan coverage for vaccinations with reduced or no co-payments or deductibles, and/or sharing information about government sponsored or other vaccination clinics.

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu. Employers should encourage employees and their families to take the following steps:

Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too;
Stay home when you are sick to help prevent others from catching your illness;
Cover your mouth and nose;
Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick;
Clean your hands to protect yourself from germs;
Avoid touching your eyes, nose or mouth;
Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth; and
Practice other good health habits. Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Employers also should encourage workers and their families to be alert to possible signs of H1N1 or other flu symptoms and to respond appropriately to possible infection. According to the CDC, all types of flu including H1NA typically include many common symptoms, including:

Fever
Coughing and/or sore throat
Runny or stuffy nose
Headaches and/or body aches
Chills
Fatigue

Patients suffering from H1N1 flu usually report these same symptoms, but the symptoms often are more severe. In addition to the above symptoms, a number of H1N1 flu cases reported vomiting and diarrhea.

CDC recommends individuals diagnosed with H1N1 flu should:

Stay home and avoid contact with others for at least 24 hours after a fever (100°F or 37.8°C) is gone without the use of fever reducing medicine except to get medical care or for other things that must be done that no one else can do;
Avoid close contact with others, especially those who might easily get the flu, such as people age 65 years and older, people of any age with chronic medical conditions (such as asthma, diabetes, or heart disease), pregnant women, young children, and infants;
Clean hands with soap and water or an alcohol-based hand rub often, especially after using tissues or coughing/sneezing into your hands;
Cover coughs and sneezes;
Wear a facemask when sharing common spaces with other household members to help prevent spreading the virus to others. This is especially important if other household members are at high risk for complications from influenza;
Drink clear fluids such as water, broth, sports drinks, or electrolyte beverages made for infants to prevent becoming dehydrated;
Get plenty of rest;
Follow doctor’s orders; and
Watch for signs for a need for immediate medical attention. Suffers should get medical attention right away if the sufferer has difficulty breathing or chest pain, purple or blue discoloration of the lips, is vomiting and unable to keep liquids down, or shows signs of dehydration, such as feeling dizzy when standing or being unable to urinate.

In seeking to contain the spread of the virus within their workplace, employers also should be sensitive to workplace policies or practices that may pressure employees with a contagious disease to report to work despite an illness and consider whether the employer should adjust these policies temporarily or permanently in light of the ongoing pandemic. For instance, financial pressures and the design and enforcement of policies regarding working from home and/or qualifying for paid or unpaid time off significantly impact the decisions employees make about whether to come to work when first experiencing symptoms of illness. Employers of workers who travel extensively – may wish to delay or restrict travel for some period.

Employers Must Employment Discrimination & Other Legal Compliance Risks

Many employers may want to evaluate and appropriately revise existing policies with an eye to better defending their workforce against a major outbreak. Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations – either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers. Many businesses also will want to prepare backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs.

Employers planning for or dealing with an H1N1 or other epidemic in their workplace should exercise care to avoid violating the nondiscrimination and medical records confidentiality provisions of the Americans with Disabilities Act (ADA) and/or the Genetic Information Nondiscrimination Act (GINA), the Family & Medical Leave Act of 1990 (FMLA), the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws, and other employment and privacy laws.

Improperly designed or administered medical inquiries, testing, vaccination mandates and other policies or practices intended to prevent the spread of disease may expose an employer to disability discrimination liability under the ADA or GINA. For instance, the ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances permitted by the ADA. Likewise, improperly designed or communicated employer inquiries into family medical status which could be construed as inquiring about family medical history also may raise exposures under genetic information nondiscrimination and privacy mandates of GINA that took effect November 21, 2009.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

An employee’s ability to perform essential job functions will be impaired by a medical condition; or
An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Additionally, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made. It permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations. All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record. The EEOC Pandemic Preparedness In The Workplace and The Americans With Disabilities Act Guidance makes clear that employer inquiries and other H1N GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers H1N1 and other epidemic planning and response activities should be carefully crafted to avoid violating these proscriptions.

GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” also could present a liability trap door for some employers designing pandemic or other workplace wellness, disease management or other programs. GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual, GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology. For more information about the new GINA genetic information employment discrimination rules, see here.

As part of their pandemic planning, employers also generally should review their existing wage and hour and leave of absence practices. Employers should ensure that their existing or planned practices for providing paid or unpaid leave are designed to comply with the FLSA and other wage and hour and federal and state leave of absence laws. Employers also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years. If considering allowing or requiring employees to work from home, employers also need to implement appropriate safeguards to monitor and manage employee performance, to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, OSHA and other safety, privacy and other legal and operational requirements.

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at here. FLU.gov is a one-stop resource with the latest updates on the H1N1 flu. An additional resource is CDC INFO, 1-800-CDC-INFO (1-800-232-4636), which offers services in English and Spanish, 24 hours a day, 7 days a week. Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions. These and other businesses may want to consult the special resources posted here.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, health and other employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws | ADA, COBRA, Disease Management, EEOC, Employee Benefits, Employers, family leave, FMLA, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Leave, medical leave, OSHA, Pandemic, Privacy, Protected Health Information, Risk Management, Safety, Swine Flu, Wage & Hour, Wellness | Tagged: ADA, COBRA, Corporate Compliance, Disability Discrimination, Disease Management, Employee Benefits, Employers, Employment, Health Insurance, Health Plans, Human Resources, Internal Controls, Labor, Medical Coverage, Minimum Wage, Pandemic, Privacy, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

November 24, 2009

Updated Employment Poster, Policies & Procedures Required Immediately

Employers, unions, employment agencies, employment training agencies and their agents face significant new employment discrimination liability risks if they violate new genetic information-based employment non-discrimination or fail to comply with genetic information confidentiality requirements that took effect under Title II of the Genetic Information Nondiscrimination Act (GINA) on Saturday, November 21, 2009. Employers need immediately to update their employment posters, carefully audit their existing records and practices to identify existing information and practices that may create special risks under GINA and take appropriate action to comply with the GINA rules. Employers needing an updated poster can find a copy on the Equal Employment Opportunity Commission website here.

Under the newly effective employment provisions of Title II of GINA, Federal law now prohibits employers of 15 or more employees and certain other entities from using individuals’ “genetic information” when making hiring, firing, job placement, or promotion decisions, requires “genetic information” be kept separately and confidential, and prohibits retaliation.

When assessing their risk under GINA, employers should be careful not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to this information. Many employers will be surprised by the breadth of the depth of “genetic information.” GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual. GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology. Pending issuance of regulatory guidance, GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers.

While the agency responsible for construing and enforcing Title II of GINA, the Equal Employment Opportunity Commission (EEOC), to date has published only limited guidance about it, the absence of this final guidance should not be read by employers as a sign their compliance may be delayed. While not yet issued in final form, proposed regulations interpreting Title II of GINA accessible here published by the EEOC in March, 2009 and a subsequently released factsheet accessible here published by the EEOC in May, 2009 titled “Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008” provide insights about how the EEOC may be expected to view its provisions. While many employers have delayed taking action to update their policies and procedures in hopes that final guidance would be forthcoming before Title II took effect, time has now run out. Accordingly, employers who have not already done so should act quickly to implement all necessary changes to position themselves to defend against a potential claim that their organization may have violated GINA Title II.

Employment-Related Genetic Information Nondiscrimination Rules In Focus

Applicable to employers, unions, employment agencies, employment training agencies and their agencies based on genetic information by employers, Title II imposes sweeping prohibitions against employment discrimination based on genetic information. Title II generally has three components:

Employment Discrimination Prohibited. Section 202 of GINA makes it illegal for an employer:

To fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee;
To limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee; or
To request, require, or purchase genetic information with respect to an employee or a family member of the employee except as specifically permitted by GINA and otherwise applicable law.

GINA §§ 203 and 204 extend similar prohibitions to employment agencies, labor unions and training programs.

Confidentiality Mandates. Under GINA § 206, an employer, employment agency, labor organization, or joint labor-management committee that possesses genetic information about an employee or member must protect the confidentiality of that information. Under its provisions, employers and other covered entities must:

Treat the genetic information as a confidential medical record of the employee or member and maintain it on separate forms and in separate medical files in the same manner as required for other medical records required to be maintained as confidential by Americans With Disabilities Act § 102(d)(3)(B); and
Only disclose it in the narrow circumstances specifically allowed by GINA.

Anti-Retaliation. GINA also prohibits retaliation or other discrimination against any individual because such individual has opposed any act or practice prohibited by GINA, for making a charge, testifying or assisting or participating in any manner in an investigation, proceeding, or hearing under GINA.

GINA’s Additional Group Health Plan Nondiscrimination & Privacy Rules Also Require Attention

In addition to taking appropriate steps to comply with the employment rules of Title II of GINA, employers and their group health plan fiduciaries and service providers also should ensure that the group health plan has been appropriately updated to comply with the group health plan nondiscrimination and privacy mandates of Title I of GINA.

Effective for all group health plan years beginning on or after May 21, 2009, GINA’s new restrictions on the collection and use of genetic information by group health plans added under Title I of GINA are accomplished through the expansion of a series of already existing group health plan nondiscrimination and privacy rules. GINA’s group health plan provisions amend and expand the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), Title VII of the Civil Rights Act, the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of information that falls within its broad definition of “genetic information” by group health plans. For individual health insurers, GINA’s restrictions take effect May 22, 2009. The broad definition of the term “genetic information” in GINA will require group health plan sponsors and insurers to carefully review and update their group health plan documents, communications, policies and practices to comply with forthcoming implementing regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure in a series of areas.

In this respect, wellness and disease management programs are likely to require special scrutiny and attention. GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of group health plan health assessment and other wellness and disease management programs which provide financial incentives or condition eligibility on the provision of family health histories or other information that could be construed as genetic information. The implications of these GINA prohibitions are further complicated by recent changes in the disability nondiscrimination rules and guidance under the Americans With Disabilities Act.

Title I of GINA generally prohibits group health plans from collecting genetic information for underwriting or eligibility purposes. It also expands already existing federal rules prohibiting group health plans from discriminating among individuals for purposes of determining eligibility or setting premiums based on health status previously enacted as part of HIPAA. These existing rules already prohibit group health plans and health insurance issuers from discriminating based on health related factors including genetic information for purposes of determining eligibility or premiums. GINA expands these existing nondiscrimination requirements to further regulate group health plan’s use and collection of genetic information. Under GINA’s nondiscrimination rules, group health plans and health insurers may not:

Request, require or purchase genetic information for underwriting purposes or in advance of an individual’s enrollment;
Adjust premiums or contribution amounts of the group based on genetic information;
Request or require an individual or family member to undergo a genetic test except in limited situations specifically allowed by GINA;
Impose a preexisting condition exclusion based solely on genetic information, in the absence of a diagnosis of a condition;
Discriminate against individuals in eligibility and continued eligibility for benefits based on genetic information; or
Discriminate against individuals in premium or contribution rates under the plan or coverage based on genetic information, although such a plan or issuer may adjust premium rates for an employer based on the manifestation of a disease or disorder of an individual enrolled in the plan.

GINA also prohibits insurers providing individual health insurance from establishing rules for eligibility, adjusting premiums or contribution amounts for an individual, imposing preexisting condition exclusions based on, requesting or requiring individuals or family members to undergo genetic testing.

Of particular concern to many plan sponsors and fiduciaries are the potential implications of these new rules on existing wellness and disease management features group health plans. Of particular concern is how regulators will treat the collection of family medical history and certain other information as part of health risk assessments used in connection with these programs. Although official guidance is still pending, many are concerned that regulators will construe certain commonly used practices of requiring covered persons to provide family medical histories or other genetic information through health risk assessments (HRAs) to qualify for certain financial incentives as a prohibited underwriting practice under GINA. Even where health risk assessments are not used, however, most group health plan sponsors should anticipate that GINA will require specific amendments to their plan documents, communications and processes.

Taking timely action to comply with these nondiscrimination and collection prohibitions is important. Under amendments to ERISA made by GINA, group health plan noncompliance can create significant liability for both the plan and its sponsor. Participants or beneficiaries will be able to sue noncompliant group health plans for damages and equitable relief. If the participant or beneficiary can show an alleged violation would result in irreparable harm to the individual’s health, the participant or beneficiary may not have to exhaust certain otherwise applicable Department of Labor administrative remedies before bringing suit. In addition to these private remedies, GINA also authorizes the imposition of penalties against employers and other sponsors of group health plans that violate applicable requirements of GINA of up to $500,000. The minimum penalties generally are set at the greater of $100 per day or a minimum penalty amount ranging from $2,500 for de minimus violations corrected before the health plan received notice of noncompliance to $15,000 in cases in which the violations are more than de minimus. GINA also includes language allowing the Secretary of Labor to reduce otherwise applicable penalties for violations that could not have been identified through the exercise of due diligence or when the plan corrects the violation quickly.

GINA Amendments To Health Plan Privacy Rules Under HIPAA

In addition to its nondiscrimination rules, GINA also amends HIPAA to make clear that “genetic information” as defined by HIPAA is protected health information protected by HIPAA’s Privacy & Security Standards of HIPAA. This means that it will require that all genetic information be treated as protected health information subject to the Privacy and Security Standards applicable to group health plans covered by HIPAA. Although the statutory provisions that accomplish these changes are deceptively simple, compliance with these requirements likely will require group health plans and their business associates to amend existing privacy policies, notices and practices to appropriately restrict disclosures for underwriting, operations and certain other uses to withstand scrutiny under the GINA privacy rule amendments.

When contemplating these changes, many plan sponsors and administrators also will want to consider and begin preparing to comply with other refinements to their existing privacy and security practices required in response to HIPAA privacy and security rule amendments enacted as part of the HITECH Act provisions of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) provisions of the American Recovery and Reinvestment Act of 2009 (ARRA). As GINA specifies that violations of its privacy rule restrictions trigger the same sanctions as other privacy rule violations, group health plans and their business associates also should give due consideration to these penalty exposures. The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.

GINA’s fractured assignment of responsibility and authority to develop, implement and enforce regulatory guidance of its genetic information rules can create confusion for parties involved in compliance efforts. Because the group health plan requirements of Title I of GINA are refinements to the group health plan privacy and nondiscrimination rules previously enacted as part of HIPAA, GINA specifically assigned authority to construe and enforce its group health plan requirements to the agencies responsible for the interpretation and enforcement of those original rules: (1) the Department of Labor Employee Benefit Security Administration (EBSA); (2) the Internal Revenue Services (IRS), and (3) the Department of Health & Human Services.

These three agencies in early October published the interim final regulations construing the group health plan manatees of Title II of GINA, which are available for review here. Group health plans, their employer and other sponsors, fiduciaries and service providers should act quickly to review and update their group health plan documents, procedures and other materials to comply with these new mandates.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect | ADA, Corporate Compliance, EEOC, Employee Benefits, Employers, ERISA, GINA, Health Plans, HIPAA, Human Resources, Immigration, Privacy | Tagged: ADA, Disease Management, EEOC, Employee Benefits, Employer, Employers, Employment, Employment Agreements, Genetic Inforamtion, GINA, Health Insurance, Human Resources, Insurance, Insurer, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Senate Finance Chairman Baucus Introduces New Health Care Reform Bill

November 19, 2009

S.1796, America’s Healthy Future Act of 2009 Reflects Chairman’s Response To House’s Passage of HR 3962 & Other Feedback

Senate Finance Committee Chairman Max Baucus (D-MT) today (November 19, 2009) introduced his latest health care reform proposal, the America’s Healthy Future Act of 2009 (S.1796). Chairman Baucus’ introduction of S. 1796 follows the November 7, 2009 passage by the U.S. House of Representatives of the massive health care reform proposal sponsored by Representative John Dingell (D-MI) and supported by Speaker Nancy Pelosi, the Affordable Health Care for America Act (HR. 3962).

Totaling 1504 pages in length, S.1796 proposes a lengthy and complex array of reforms to the U.S. health care coverage and delivery system, which would affect virtually each U.S. employer, health care provider, payer, and resident. As with the provisions of HR. 3962 and other versions of health care reform, the reforms outlined in the provisions of S.1796 include complexities and nuances which may not be apparent in partisan or non-partisan discussions or summaries of its goals or purposes. Consequently, individuals or businesses concerned about the proposed reforms are encouraged to begin and base their review and analysis on the actual text of S.1796, a copy of which as introduced is available for review here.

The continuing emphasis of President Obama and other members of the Democratic Party Leadership in Congress on the passage of health care reform means that Senator Baucus and other Democratic Leaders in Congress are likely to continue to make passage of health care reform a priority. U.S. businesses and individuals concerned about the proposed reforms should carefully review both the Senate and House bills and act quickly to provide their input on any matters of special interest and concern.

Selected Health Coverage Reform Highlights

Among other things, S.1796, as introduced, would enact sweeping health insurance coverage reforms that would create new obligations for employers, insurers, and individual workers. In this respect, S.1796, among other things would:

Amend the Social Security Act (SSA) to add a new title XXII (Health Insurance Coverage) to ensure that all Americans have access to affordable and essential health benefits coverage.
Require all health benefits plans offered to individuals and employers in the individual and small group market to be qualified health benefits plans (QHBPs).
Amend the Internal Revenue Code to: (1) allow tax credits related to the purchase of health insurance through the state exchanges; and (2) impose an excise tax on individuals without essential health benefits coverage and on employers who fail to meet health insurance coverage requirements with respect to their full-time employees.
Prohibit QHBP from excluding coverage for preexisting conditions, or otherwise limiting or conditioning coverage based on any health status-related factors.
Require QHBPs to offer coverage in the individual and small group markets on a guaranteed issue and guaranteed renewal basis.
Amend the cafeteria plan rules of Internal Revenue Code § 125 to, among other things, require that in order for a health flexible spending arrangement (HFSA) to qualify as a qualified benefit eligible to be offered under a cafeteria plan, the cafeteria plan must limit the maximum salary reduction contribution per employee per taxable year to $2,500 beginning in 2011.
Increase the threshold for the itemized income tax deduction for medical expenses.
Require states to: (1) establish rating areas; (2) adopt a specified risk adjustment model; and (3) establish transitional reinsurance programs for individual markets.
Require QHBP offerors in the individual and small group markets to consider all enrollees in a plan to be members of a single risk pool.
Require the Secretary of Health and Human Services (HHS) to establish: (1) risk corridors for certain plan years; (2) high risk pools for individuals with preexisting conditions; (3) a temporary reinsurance program for retirees covered by employer-based plans; and (4) a program under which a state establishes one or more QHBPs to provide at least an essential benefits package to eligible individuals in lieu of offering coverage through an exchange.
Entitle a qualified individual to the choice to enroll or not to enroll in a QHBP offered through an exchange covering the individual’s state as well as QHBPs in the individual market while at the same time requiring that such individuals to be U.S. citizens or lawful residents.
Require each state to establish: (1) an exchange designed to facilitate enrollment in QHBPs in the individual market; and (2) a Small Business Health Options Program (SHOP) exchange designed to assist qualified small employers in facilitating the enrollment of their employees in QHBPs in either the individual or the small group market.
Direct the Secretary to: (1) establish a system allowing state residents to participate in state health subsidy programs; and (2) study methods exchange QHBPs can employ to encourage health care providers to make increased meaningful use of electronic health records.
Dictate the mandated contents of an essential health benefit benefits package, including little or no cost-sharing, no annual or lifetime limits on coverage, and preventive services.
Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
With regard to abortions: (1) declare that the Act does not require health care benefits plans to provide coverage for abortions; prohibit QHBPs from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions; (3) continues application of state and federal laws regarding abortion; (4) prohibit the use of premium credits and cost-sharing subsidies for QHBPs covering abortion services for which federal funding is prohibited; (5) require the plan offeror to determine whether or not the plan provides coverage of abortion services for which federal funding is prohibited or is allowed; and (6) require the Secretary to assure that at least one QHBP covers abortion services for which federal funding is prohibited or allowed; and at least one QHBP that does not cover abortion services for which federal funding is allowed.

Other Selected Health Care System, Reimbursement & Other Reform Highlights

S.1796 also would expand and modify existing Medicare, Medicaid, CHIP and other federal health care programs and enact a host of other new rules and requirements affecting health care providers, drug companies and other participants in the U.S. health care system. Other proposed reforms include provisions that would:

Require the President to: (1) certify annually in the President’s Budget whether or not the provisions in this Act will increase the budget deficit in the coming fiscal year; and (2) instruct the HHS Secretary and the Secretary of the Treasury to make required reductions in exchange credits and subsidies.
Establish a new mandatory eligibility category under SSA title XIX (Medicaid) for all non-elderly, nonpregnant individuals who are otherwise ineligible for Medicaid.
Revise Medicaid benefits.
Rescind funds available in the Medicaid Improvement Fund for FY2014-2018.
Make appropriations for Aging and Disability Resource Center initiatives.
Increase the federal medical assistance percentage (FMAP) for states to offer home and community-based services as a long-term care (LTC) alternative to nursing homes.
Create a Community First Choice Option.
Add a new optional categorically needy eligibility group to Medicaid for individuals: (1) with income that exceeds 133% of the poverty line; and (2) certain other individuals, but only for benefits limited to family planning services and supplies.
Direct the Secretary to establish a grants program to support school-based health centers.
Remove smoking cessation drugs, barbiturates, and benzodiazepines from Medicaid’s excluded drug list.
Revise requirements for Medicaid disproportionate share hospital (DSH) payments.
Direct the Secretary to establish a Federal Coordinated Health Care Office within the Centers for Medicare & Medicaid Services (CMMS).
Direct the Secretary to establish a Medicaid Quality Measurement Program.
Revise requirements for the Medicaid and CHIP Payment and Access Commission (MACPAC) under SSA title XXI, Children’s Health Insurance Program.
Set forth special rules relating to American Indians and Alaska Indians.
Require the Secretary to establish procedures for sharing data collected under a federal health care program on race, ethnicity, sex, primary language, type of disability, and related measures and data analyses.
Amend SSA title V with respect to the Maternal and Child Health (MCH) block grant program.
Provide funding for abstinence education.
Incorporate reforms originally proposed under the Elder Justice Act of 2009 pursuant to which amendments would be made to the provisions of SSA title XX relating to Block Grants to States for Social Services with respect to elder abuse, neglect, and exploitation and their prevention.
Establish within the Office of the Secretary an Elder Justice Coordinating Council.
Direct the Secretary to establish a hospital value-based purchasing program under Medicare.
Extend the Medicare Physician Quality Reporting Initiative program (PQRI) incentive payments beyond 2010.
Modify the Physician Feedback Program.
Require the Secretary to develop a plan to implement a Medicare value-based purchasing program for home health agencies and skilled nursing facilities (SNFs).
Amend SSA title XVIII (Medicare) to direct the Secretary to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health.
Direct the President to convene an Interagency Working Group on Health Care Quality.
Amend the General Provisions of SSA title XI to provide for the establishment of a Center for Medicare and Medicaid Innovation within CMMS.
Amend SSA title XVIII to direct the Secretary to establish a shared savings program that promotes accountability for a patient population and coordinates items and services under Medicare parts A (Hospital Insurance) and B (Supplementary Medical Insurance).
Create a Hospital Readmissions Reduction Program.
Direct the Secretary to establish a Community-Based Care Transitions Program.
Revise requirements with respect to residents in teaching hospitals.
Increase the Medicare physician payment update.
Direct the Secretary to establish a Working Group on Access to Emergency Medical Care.
Extend the Medicare-Dependent Hospital Program.
Amend the Tax Relief and Health Care Act of 2006 with respect to the hospital wage index.
Establish a Medicare prescription drug discount program for brand-name drugs for beneficiaries who enroll in Medicare part D (Voluntary Prescription Drug Benefit Program) and have drug spending that falls into the coverage gap.
Establish an independent Medicare Commission to reduce the per capita rate of growth in Medicare spending.
Amend SSA title XI to add a new part D, Comparative Effectiveness Research, under which would be established a Patient-Centered Outcomes Research Institute.
Establish in the Department of Treasury the Patient-Centered Outcomes Research Trust Fund.
Establish a nationwide program for national and state background checks on direct patient access employees of long term care facilities and providers.
Direct the Secretary to establish new procedures for screening providers of medical or other items or services and suppliers under the Medicare, Medicaid, and CHIP programs.
Direct the Secretary to establish a self-referral disclosure protocol to enable health care service providers and suppliers to disclose violations.
Requires the Secretary to expand the number of areas included in Round Two of the durable medical equipment (DME) competitive bidding program.
Extend the period for collection of overpayments due to fraud.
Amend the Internal Revenue Code with respect to: (1) an excise tax on the excess benefit of high cost employer-sponsored health coverage; (2) distributions from health savings accounts for drugs and insulin that are prescribed drugs and insulin only; (3) a limitation on salary reduction contributions by employers to a health flexible spending arrangement; (4) expanded information reporting requirements; (5) additional qualifying requirements for charitable hospital organizations; and (6) a qualifying therapeutic discovery project tax credit.
Impose annual fees on: (1) manufacturers and importers of branded prescription pharmaceuticals or of medical devices; and (2) health insurance providers.
Prescribe a special rule to limit excessive remuneration by certain health insurance providers.
Exclude from an individual’s gross income the value of any qualified Indian health care benefit.

Monitoring & Responding To Health Care Reform Proposals

As was the case with HR. 3962, members of the Senate are likely to debate and weigh a variety of amendments and refinements to the provisions of S.1796 as it deliberates its enactment. If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

Register for this resource at the link above;
Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input and join in other dialogue with others concerned about health care reform;
Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

If you have questions about or need assistance evaluating, commenting on or responding to health care or other legislative or regulatory reforms, or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment/Employee Benefits Practice Chair Cynthia Marcotte Stamer.

Ms. Stamer has more than 22 years of experience advising and assisting business, government and other clients to evaluate and respond to health care, pension reform, workforce and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws. A member of the leadership council of the American Bar Association Joint Committee on Employee Benefits, Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally. Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally. In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally. As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

In addition to her extensive work on health and other employee benefit matters, Ms. Stamer also is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and has continuously has advised and represented employers and others on labor and employment, compensation, employee benefit and other personnel and staffing matters throughout her career. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues. Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association. Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

Proposed Chemical Facility Anti-Terrorism Bill Would Obligate Chemical Facilities To New Background Check, HR & Other Safety & Security Safeguards

IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

House Passes Affordable Health Care For America, Health Care Reform Debate Focus Now Moves To The Senate

SHRM Tells Members Say “NO!” To Pelosi-Backed Health Care Reform

IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

OSHA Proposes To Change Hazard Communication Standard

IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

New Study Shares Data On Migrant Health Care Challenges Along The Border

Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment

Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Senate Finance Chairman Baucus Introduces New Health Care Reform Bill | Data Security, Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, HIPAA, Human Resources, I-9, Immigration, Income Tax, Tax, Wellness | Tagged: America's Healthy Future Act, Baucus, Corporate Compliance, Disease Management, Employee Benefits, Employer, Employment, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, S.1796, Senate Finance Committee, Tax, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act

November 6, 2009

In a rare weekend meeting, the House of Representatives is scheduled to consider H.R. 3962, the Affordable Health Care for America Act and, if Speaker Nancy Pelosi has her way, vote to pass it as early as this weekend.

In anticipation of this action, the Society For Human Resources (SHRM) is voicing strong opposition to H.R. 3962 and urging U.S. citizens and businesses to express their strong opposition to it as well to members of Congress immediately.

According to communications circulated this week, SHRM “strongly supports comprehensive health care reform that strengthens the employer-based system, promotes wellness programs and health promotion initiatives, strengthens the Employee Retirement Income Security Act (ERISA), increases purchaser and consumer access to cost and quality information and increases access to affordable health coverage. SHRM says the House bill fails to achieve these goals. Accordingly, SHRM is urging American’s to contact their Representative today to urge a NO VOTE on H.R. 3962.

SHRM’s concerns about the proposal include that H.R. 3962:

Does not include provisions to facilitate greater availability of wellness programs among employers and employees.
Does not include meaningful cost, quality, or transparency provisions to ensure that both employers and employees have better access to health-related information.
Requires employers to provide and pay for “qualified” health care coverage or face an 8 percent payroll tax. Employers must pay 72.5 percent of the premium for individuals and 65 percent of the premium for families. In addition, even if an employer provides and pays for health insurance coverage for their workforce, that employer could still be subject to an 8 percent payroll tax if employees decline employer coverage because it is unaffordable – defined as more than 12 percent of the employee’s income.
Would erode the Employee Retirement Income Security Act (ERISA) by applying state law remedies to employer purchased coverage in a health insurance exchange; prohibiting post-retirement reductions of retiree health benefits by group health plans, unless reductions are also made to active employees’ health benefits; and requiring employer-sponsored plans to meet detailed federal requirements that will increase costs.
Includes a public insurance plan option that raises serious concerns about cost-shifting to private plans. SHRM objects because inadequate reimbursement practices under Medicare and Medicaid has resulted in significant cost-shifting to private plans, increasing costs for both employers and employees.

In light of these concerns, SHRM is asking all members and other concerned Americans to write mMembers of Congress TODAY and urge them to oppose the Affordable Health Care for America Act. It invites members to use SHRM’s HRVoice to share thes econcernings by:

Log ging onto HR Voice
Under the heading “Take Immediate Action on these Hot Issues,” click on: “VOTE NO on the Affordable Health Care for America Act (H.R. 3962)” and
Personalizing and sending individualized letters by including specific information about the organization you work for, your experiences in the workplace, and why this legislation would negatively impact your organization.

If you have questions about or need assistance monitoring, evaluating, commenting on or responding to this or any other health care reform proposal or other federal or state health care, workforce or other legislative, regulatory or other developments or concerns, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state health care, employee benefit, workforce and other legislation and regulation. Ms. Stamer has advised and represented clients about these and other health care labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. Her public policy experience includes ongoing involvement in these concerns within the U.S. for 30 years, as well as serving as a policy advisor on Social Security Reform to the Government of Bolivia and providing input or other representation to various other clients on workforce, health care and other policies in various other regions of the world.

Comments Off on SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act | Employee Benefits, Employers, ERISA, Health Care Reform, Public Policy, Risk Management | Tagged: Employer, ERISA, Health Care Reform, Health Plans, Public OPtion, Public Policy | Permalink
Posted by Cynthia Marcotte Stamer

US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements

November 5, 2009

Rising business failures, constricting budgets, employment losses and other business and workforce dislocations associated with the recent economic downturn are adding new urgency to efforts by U.S. and international leaders to act to mitigate threats to the security of worker pensions.

In response to these concerns, the U.S. Pension Benefit Guaranty Corp. (PBGC), the United Kingdom’s The Pensions Regulator and Pension Protection Fund recently have reached an information sharing agreement intended to help the agencies in both countries protect retirement benefits earned by workers and retirees on both sides of the Atlantic. Meanwhile, businesses that sponsoring defined benefit pension plans now are required to comply with newly released final Internal Revenue Service regulations that increase minimum contributions required by many sponsors, and impose other new mandates designed to accelerate plan funding and otherwise promote greater security of these benefit programs in an economically challenged business environment.

Under a Memorandum of Understanding, signed on November 4, 2009, the three agencies will share any unrestricted information that advances the security of defined benefit plans sponsored by private sector companies. Confidential financial information from those companies will not be shared. While the agreement facilitates broad access to data, intelligence, and other records, it is not legally binding. Additionally, the agencies are not compelled to lend assistance to each other, especially if legal proceedings are underway, and such assistance would be contrary to the interests of either country. The agreement can be canceled at any time by any party.

The Pensions Regulator oversees private sector defined benefit plans in the UK and is charged with protecting the retirement benefits of plan members. The Regulator is also charged with reducing the risk of claims for compensation from the Pension Protection Fund (PPF). The PPF was created to pay compensation to members of eligible defined benefit pension plans when the plan’s sponsor was unable to pay benefits.

The PBGC is a federal corporation created under the Employee Retirement Income Security Act of 1974. It currently guarantees payment of basic pension benefits earned by 44 million American workers and retirees participating in over 29,000 private-sector defined benefit pension plans. The agency receives no funds from general tax revenues. Operations are financed largely by insurance premiums paid by companies that sponsor pension plans and by investment returns.

The Memorandum of Understanding is one of a variety of actions that the U.S. regulators are taking as part of their efforts to shore up the security of private retirement benefits and funding. On October 15, 2009, the Internal Revenue Service published final regulations regarding the “Measurement of Assets and Liabilities for Pension Funding Purposes; Benefit Restrictions for Underfunded Pension Plans” construing the amended single employer defined benefit plan minimum funding rules in Internal Revenue Code (“Code”) §§ 430(d), 430(f), 430(g), 430(h)(2), 430(i), and 436, added to the Code by the Pension Protection Act of 2006 (PPA ’06), Public Law 109-280 (120 Stat. 780) taking into account subsequent amendments made by the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA ’08), Public Law 110-458 (122 Stat. 5092). These new final regulations implement new federal rules that accelerate the time within which employers are required to fund defined benefit retirement benefit commitments made in single employer defined benefit pension plans and impose other complicated new requirements intended to improve the funding and security of these programs. As implementation of these new rules proceeds, the PBGC is working to respond to the growing wave defined benefit pension plans whose plan sponsors have already gone bankrupt or otherwise have proven unable to meet already existing funding obligations.

If you have questions about or need assistance evaluating or complying these minimum funding rules or other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer has more than 20 years experience advising and representing employers, plan sponsors and fiduciaries, and others about these and other related workforce, benefits, compensation and compliance matters. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements | Defined Benefit Plans, Employee Benefits, Employers, ERISA, Retirement Plans, Tax | Tagged: Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, Human Resources, Internal Controls, Minimum Contributions, Retirement Plan Funding, Retirement Plans, Tax | Permalink
Posted by Cynthia Marcotte Stamer

November 15, 2009 Is Deadline To Send Required Group Health Plan Medicare Part D “Creditable Coverage” Notice

November 3, 2009

November 15, 2009 is the deadline for group health plans providing prescription drug coverage to send the annually-required notification (the “Part D Notice”) to Medicare-eligible participants whether the plan’s prescription drug coverage is or is not “creditable coverage” (“Creditable Coverage”) for purposes of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the “MMA”) “Part D” prescription drug coverage program. Before distributing the required Part D Notice, group health plan sponsors and administrators should review and update the Part D Notice as needed in light of 2009 revisions to the Part D Notice requirements issued earlier this year by CMS.

The MMA generally mandates that covered employer-sponsored group health plans send a Part D Notice that complies with the form and content requirements established by the Centers for Medicare & Medicaid Services (“CMS”) to all Medicare Part D-eligible individuals covered under, or who apply for, enrollment in a group health plan providing prescription drug coverage at each of the following times:

Before the Medicare Part D annual coordinated election period (November 15 – December 31) each year;
Within the 12 months before an individual’s initial enrollment period for Medicare;
Before the effective date of coverage for a Medicare-eligible individual beginning participation in the group health plan;
When the plan’s prescription drug coverage ends or is no longer creditable; and
Upon a beneficiary’s request.

Because CMS posted revised model notices and updated guidance regarding creditable coverage disclosures earlier this year, plan sponsors and administrators before distributing their Part D Notice generally will need to:

Determine whether their group health plan does or does not provide creditable coverage for purposes of Medicare Part D regulations;
Determine which Medicare Part D notification should be provided in light of the existing group health plan design; and
Review and update, if necessary, the content and form of the Part D Notice to comply with the updated guidance issued earlier this year.

The Annual Part D Notice requirement generally applies to all group health plans not otherwise specifically excluded from coverage even those that do not provide retiree coverage. The MMA generally requires notification to Medicare Part D-eligible employees and dependents, regardless of whether the member is enrolled under active or retired coverage or whether the group health plan coverage is primary or secondary to Medicare.

A group health plan must determine if its prescription drug coverage is “creditable coverage” in accordance with rules contained in the Medicare Part D regulations. These regulations generally specify that prescription drug coverage qualifies as creditable coverage if the actuarial value of the coverage equals or exceeds the actuarial value of the Part D prescription drug coverage, as demonstrated through the use of generally accepted actuarial principles in accordance with CMS actuarial guidelines. This actuarial determination measures whether the expected amount of paid claims under the group health plan’s prescription drug coverage is at least as much as the expected amount of paid claims under the standard Medicare prescription drug benefit. In lieu of an actuarial assessment, the Medicare Part D regulations alternatively allow group health plans to rely upon a safe harbor rule. Under this safe harbor, group health plans offering prescription drug coverage qualify as providing Creditable Coverage without an actuarial assessment if the standards of the safe harbor rule are met.

This determination of creditable coverage for Medicare Part D purposes is separate and distinct from the requirement that group health plans determine and provide notification of “creditable coverage” when group health plan coverage ends pursuant to the group health plan portability requirements imposed by the Health Insurance Portability & Accountability Act of 1996, as amended (“HIPAA”).

When distributing the Part D Notice, group health plan sponsors and administrators also generally will want to make arrangements to ensure that separately required notifications to CMS regarding the creditable coverage status of the group health plan under Medicare Part D will be timely made as well as calendar reminders to prepare and provide the Part D Notice expected to be required in November, 2010. The Medicare Part D regulations also generally require group health plans also to provide a “Disclosure Notice” to CMS informing it whether the applicable group health plan provides Medicare Part D Creditable Coverage on an annual basis during the first 60 days of the plan year, and upon any change that affects whether the group health plan provides prescription drug coverage that is or is not creditable coverage for Medicare Part D purposes..

In addition to the Medicare Part D notice requirements, group health plans also are required to provide various other annual and other notifications by ERISA, the Health Insurance Portability & Accountability Act of 1996, as amended (“HIPAA”), Newborns’ and Mothers’ Health Protection Act, medical coverage e continuation requirements under the Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), the Family & Medical Leave Act and a host of other federal laws, many of require updates in response to statutory and/or regulatory changes in the past year. In addition to updating and providing the required Medicare Part D Notice, many group health plan sponsors and administrators also should review and update their group plan language, notifications and processes in response to amendments affecting these practices as well as a series of other recent changes to federal mandates affecting group health plans. For more information about these and other developments affecting group health plans, checkout some of the writings and recorded presentations of Ms. Stamer available here.

If you need assistance reviewing or updating your group health plan’s implications of the MMA on your group health plans or other health or employee benefit plan requirements, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for her more than 20 years work, writing and leadership advising employers and other plan sponsors, plan administrators and fiduciaries, insurers, administrative services providers, brokers, and others about the design, documentation, administration and defense of health and other employee benefit, insurance, and other compensation and employment practices. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on November 15, 2009 Is Deadline To Send Required Group Health Plan Medicare Part D “Creditable Coverage” Notice | Employee Benefits, Employers, ERISA, Health Plans, Insurance, Medicare Part D, Prescription Drugs, Reporting & Disclosure | Tagged: Employers, Health Plans, Medicare Part D, Prescription Drug Coverage | Permalink
Posted by Cynthia Marcotte Stamer

Senate Finance Bill Finishes Drafting & Releases For Review the America’s Healthy Future Act Bill Language

October 22, 2009

Americans finally have a chance to read the actual statutory language of the painfully negotiated package of proposed health care reforms that the Senate Finance Committee proposes for adoption. The Senate Finance Committee leadership finally finished drafting has posted the 1506 page long text of the proposed statutory language of the health care reform provisions of the “America’s Healthy Future Act” on its website here.

When the Senate Finance Committee vote passing the America’s Health Future Act, members of the Senate Finance Committee had not yet had the opportunity to review the actual statutory language to be proposed to implement the package of heatlh care reforms painfully hashed out in their committee. As the actual statutory language had not been completed at the time a majority of the Democrats and one Republican Senator serving on the Senate Finance Committee voted to send the legislation to the the full Senate, the vote actually was taken based on a narative description of the intended reforms set forth in a revised draft of the “Chairman’s Mark” of the legislation. Since that time Senate Finance Committee Chairman Max Baucus and other key Democrat Senators on the Senate Finance Committee have worked behind closed doors to prepare the actual statutory language to be presented to the full Senate.

As proposed, the America’s Healthy Future Act would require sweeping changes to the U.S. health care systems that would radically impact the roles and responsibilities of every patient, health care provider, health care payor, employer and other American. Because of the potential implications on the way health care is financed, delivered and administered and the projections that the legislation will cost approximately $1 Trillion, all parties are urged to carefully review the complex and lengthy legislation to gain an understanding of the legislation and to act quickly to make any concerns known to elected leaders in Congress.

If you need help evaluating or responding to this health care reform legislation or with other employee benefit, compensation, employee benefit or insurance matters, please contact the author of this update, Cynthia Marcotte Stamer. Current Chair of the American Bar Association (ABA) RPTE Section Employee Benefits & Other Compensation Group and the former Chair of the ABA Health Law Section Managed Care & Insurance Group, Ms. Stamer has more than 20 years experience advising employers, private and public health plans and their sponsors, insurers and administrators and others about health care policy, regulatory compliance, risk management and operational issues,

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Senate Finance Bill Finishes Drafting & Releases For Review the America’s Healthy Future Act Bill Language | Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, Public Policy | Permalink
Posted by Cynthia Marcotte Stamer

IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement

September 21, 2009

November 20, 2009 is the deadline to submit comments to the Internal Revenue Service Joint Board For The Enrollment Of Actuaries on proposed amendments to its rules for relating to the enrollment of actuaries under section 3042 of the Employee Retirement Income Security Act of 1974 (ERISA) published here in today’s Federal Register. The Proposed Regulations would update the eligibility requirements for performing actuarial services for ERISA-covered employee pension benefit plans set forth in to 20 C.F.R. part 901, including the continuing education requirements and the standards for performing such actuarial services. The proposed amendments would affect employee pension benefit plans and the actuaries providing actuarial services to those plans.

If you have questions about or need assistance evaluating, commenting on or responding to the Proposed Regulations, or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and an ABA Joint Committee on Employee Benefits Representative, Ms. Stamer is experienced with assisting employee benefit plan sponsors, fiduciaries, advisors and consultants and others about a diverse range of employee benefits, compensation and other related matters. With more than 20 years experience in these and other employee benefit, compensation and other matters, Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement | Employee Benefits, ERISA, Human Resources, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

September 18, 2009

Proposed regulations modifying existing Equal Employment Opportunity Commission (EEOC) rules concerning the conditions that an individual must meet to qualify as having a “disability” for purposes of claiming protection under the Americans with Disabilities Act (ADA) are expected to be published in the Federal Register the week of September 21, 2009.

On September 16, 2009, the EEOC announced that Commissioners had approved a Notice of Proposed Rulemaking (Proposed Regulation) which would make several significant changes to the its current regulatory definition of the term “disability” for purposes of the ADA. The EEOC announced this week that the Proposed Regulation is expected to be published in the Federal Register the week of September 21, 2009. Interested persons will have 60 days from the publication date of the Proposed Rule to submit comments to the EEOC concerning the Proposed Regulation.

Why The Change?

The proposed changes are intended to respond to amendments enacted under the ADA Amendments Act (ADAAA), which took effect January 1, 2009. Enacted on September 25, 2008, the ADAAA made a number of significant changes to the definition of “disability” in the ADA as well as directed EEOC to amend its existing ADA regulation to reflect the changes made by the ADAAA.

The ADAAA amendments to the ADA definition of “disability” make it easier for certain individuals alleging employment discrimination based on disability to establish disability status under the ADA’s definition of “disability” by overruling various Supreme Court holdings and portions of EEOC’s existing ADA regulations considered by many members of Congress as too narrowly applying the definition of “disability.”

While the ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, provisions of the ADAAA that took effect on January 1, 2009 change the required interpretation of these terms. Under the ADAAA, “major life activities” now include both many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating), as well as major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”).

In addition to these clarifications, the ADAAA also broadens the reach of the ADA’s definition of “disability” in various other respects. For instance, the ADAAA:

Asserts that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

As part of the required implementation of its provisions, the ADAAA also mandates that the EEOC revise that portion of its existing regulations defining the term “substantially limits” and “major life activities” to comport to the changes enacted by the ADAAA. In response to this statutory direction, the Proposed Regulation to be published next week proposes changes both to the ADA regulation itself and to the Interpretive Guidance (also known as the Appendix) that was published at the same time as the original ADA regulation. See 29 C.F.R. section 1630. The Appendix provides further explanation from the EEOC on how its ADA regulations should be interpreted.

About The New Guidance and Proposed Regulations

In anticipation of the publication of the Proposed Regulation, the EEOC on September 16, 2009 sought to provided a peek into its new post-ADAAA construction of the ADA definition of disability by releasing its “Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008” Questions and answers on the Notice of Proposed Rulingmaking for the ADA Amendments Act of 2008 (the “Q&As”).

The Q&As and other EEOC statements released this week indicate that the Proposed Regulation will emphasize that the definition of disability — an impairment that poses a substantial limitation in a major life activity — must be construed broadly. It will provide that that major life activities include “major bodily functions;” that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active. The regulation also will provides a streamlined means through which persons claiming disability may demonstrate a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.

Required Response

Employers face increasing exposure to disability claims as a result of the ADAAA amendments, new genetic information nondiscrimination rules enacted under the Genetic Information Nondiscrimination Act (GINA), and a heightened emphasis on disabilities discrimination law enforcement by the Obama Administration. In light of this rising exposure, employers and others covered by the ADA should evaluate their existing practices in light of the Q&As and make adjustments, submit comments regarding the Proposed Regulations or both as part of their efforts to manage their organization’s ADA liability exposure. Because the ADAAA already is in effect, employers already face the possibility of being called upon to defend their hiring and employment practices under the amended ADAAA definition of disability, even though the EEOC has not issued final guidance. For this reason, it is important that employers take timely action both to update relevant written policies and procedures, as well as to change hiring and other operational processes, conduct training, implement appropriate oversight and monitoring and take other steps to mitigate these exposures.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations | ADA, Disease Management, EEOC, Employee Benefits, Employers, GINA, Human Resources, Internal Controls, Internal Investigations, OFCCP, Retaliation, Retirement Plans | Tagged: ADA, Disability Discrimination, Employee Benefits, Employer, Employers, Employment, Employment Agreements, GINA, Human Resources, Internal Controls, Internal Investigations, Light Duty, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

August 24, 2009

Employer and other health plans, health care providers, health clearinghouses and their business associates must start complying with new federal data breach notification rules on September 23, 2009.

The new “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) published here in today’s Federal Register requires health plans, health care providers, health care clearinghouses and their business associates (Covered Entities) covered under the personal health information privacy and security rules of the Health Insurance Portability & Accountability Act (HIPAA) to notify affected individuals following a “breach” of “unsecured” protected health information.The Breach Regulation is part of a series of guidance that HHS is issuing to implement new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA).

You are invited to catch up on what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9 2009 from Noon to 1:30 P.M. Central Time.

HITECH Act Data Breach and Unsecured PHI Rules

Published in the August 24, 2009 Federal Register, the new Breach Regulation implements the HITECH Act requirement that Covered Entities and their business associates notify affected individuals, the Secretary of HHS, and in some cases, the media, when a breach of “unsecured protected health information” happens and the form, manner, and timing of that notification. Covered Entities must begin complying with the new Breach Regulation on September 23, 2009.

Part of a series of new HHS rules implementing recent changes to HIPAA enacted under the HITECH Act to strengthen existing federally mandates requiring Covered Entities to safeguard protected health information, the Breach Regulation will obligate Covered Entities and business associates to provide certain notifications following a breach of “protected health information” that not secured at the time of the breach through the use of a technology or methodology meeting minimum standards issued by HHS pursuant to other provisions of the HITECH Act.

Under the HITECH Act, the breach notification obligations contained in the Breach Notification only apply to a breach of “unsecured protected health information.” The Breach Regulation exempts breaches of protected health information that qualify as “secured” under separately issued HHS and Federal Trade Commission (FTC) standards for encryption and destruction of protected health information from its breach notification requirements.

For purposes of the HITECH Act, electronic protected health information is considered “unsecured” unless the Covered Entity has satisfied certain minimum standards for the protection of that data established pursuant to the HITECH Act. Earlier this year, HHS and the FTC issued interim rules defining the minimum encryption and destruction technologies and methodologies that Covered Entities must use to render protected health information unusable, unreadable, or indecipherable to unauthorized individuals for purposes of determining when protected health information is “unsecured” for purposes of the HITECH Act. Concurrent with its publication of the Breach Regulation, HHS also released guidance updating and clarifying this previously issued guidance.

Read the Breach Regulation here . To review the HITECH Act Breach Notification Guidance and Request for Information, see here .

Register For September 9, 2009 “HITECH Act Health Data Security & Breach Update”

Interested persons are invited to register here now to learn what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9, 2009 from Noon to 1:30 P.M. Central Time. For a registration fee of $45.00, registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For questions or other information about this program, e-mail here.

Conducted by Curran Tomko and Tarski LLP Partner Cynthia Marcotte Stamer, the briefing will cover:

Who must comply
What your organization must do
How to qualify protected health information as exempt from the breach regulations as “secure” protected health information
What is considered a breach of unsecured protected health information
What steps must a covered entity take if a breach of unsecured protected information happens
What liabilities do covered entities face for non-compliance
What new contractual requirements, policies and procedures Covered Entities and Business Associates will need
How the Breach Regulation, the Privacy Regulation, impending FTC red flag rules and state data breach and privacy rules interrelate
Other recent developments
Practical tips for assessing, planning, moving to and defending compliance
Participant questions
More

About The Presenter

The program will be presented by Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her work, publications and presentations on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts.

Past Chair of the ABA Health Law Section Managed Care & Insurance Section and currently the Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Section and a Council Representative of the ABA Joint Committee On Employee Benefits, Ms. Stamer has more than 20 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or another Curran Tomko Tarski LLP Partner of your choice.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

Comments Off on Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23 | ARRA, Corporate Compliance, Data Security, Employee Benefits, Employers, ERISA, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Preemption, Privacy, Protected Health Information, Risk Management, Stimulus Bill, Tax | Tagged: Corporate Compliance, Data Security, Employee Benefits, Employer, Employers, Employment, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, HealthP Plans, Human Resources, Insurance, Insurer, Internal Controls, Internal Investigations, Labor, Managed Care, Medical Coverage, Privacy, Risk Management, Subsidy Bill, Tax | Permalink
Posted by Cynthia Marcotte Stamer

House Democratic Majority Hopes To Iron Out Differences In Key Health Care Reform Legislation During August Recess

August 4, 2009

Democratic Leaders in the House of Representatives plan to hammer out differences three versions of the America’s Affordable Health Choices Act (H.R. 3200) as separately passed by three key House Committees in July before House members return from their August recess in hopes of bringing the agreed to version of H.R. 3200 to the full house in September. Each version of H.R. 3200 would impose significant new obligations, regulations and costs on employers, health insurers and health plans, and employees.

After negotiating a last minute pre-August recess deal with certain Blue Dog Democrat Committee members, the House Energy and Commerce Committee on July 31, 2009 passed its version of H.R. 3200, the America’s Affordable Health Choices Act (H.R. 3200). The version of H.R. 3200 passed by the House Energy and Commerce Committee incorporates a series of amendments to the language of H.R. 3200 as originally introduced. For instance, this version of H.R. 3200 provides incentives for states to adopt certain tort reforms, provides for a public plan option that would reimburse physicians based on negotiated rates rather Medicare rates, and would allow states to offer both state-based heath insurance exchanges and health insurance co-ops. To review H.R. 3200 as amended by the House Energy and Commerce Committee, see here.

The approval by the Energy and Commerce Committee of its version of H.R. 3200 follows the July 17, 2009 approval by the House Ways and Means Committee and Education and Labor Committee of their own versions of H.R. 3200. For details on the version of H.R. 3200 approved by the House Ways and Means Committee, see here. For details on the version of H.R. 3200 approved by the House Education and Labor Committee, see here.

Leading House Democrats have announced their intention to work to resolve differences between these three versions of H.R. 3200 as passed by these Committees during August recess in hopes of bringing the agreed to version of H.R. 3200 to a vote of the full House of Representatives in September.

Meanwhile, House members from both parties also generally are using the August recess as an opportunity to reconnect with local constituents on health care reform and other core issues.

For More Information

The author of this article, Curran Tomko and Tarski LLP Partner Cynthia Marcotte Stamer has extensive experience advising and assisting employers and other health plan sponsors, insurers and others about health benefit and other benefits, human resources and health care matters. The current Chair of the American Bar Association Real Propoerty, Probate & Trust Section Employee Benefit Plans and Other Compensation Committee and former Chair of the ABA Health Law Section Managed Care & Insurance Group, she regularly advises these and other clients about the design, administration, defense and regulation of health benefit, wellness and disease management, managed care, onsight wellness, and other benefit and insurance regulations, legislative and regulatory reforms impacting these and other arrangements, and related matters.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other proposed health care or other regulatory reforms or with other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner.

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here.

Comments Off on House Democratic Majority Hopes To Iron Out Differences In Key Health Care Reform Legislation During August Recess | Disease Management, Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, Insurance, Malpractice, Preemption, Privacy, Public Policy, Tax, Wellness | Tagged: Employee Benefits, Employer, Employers, Employment, ERISA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, Tax | Permalink
Posted by Cynthia Marcotte Stamer

HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment

August 3, 2009

The Department of Health & Human Services (HHS) today (August 3, 2009) transferred authority for the administration and enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule to the Office for Civil Rights (OCR). Prior to this announcement, responsibility for interpretation and enforcement of the Security Rule rested with the Centers for Medicare & Medicaid Services (CMS). The change reflects the growing seriousness of HHS and others about enforcing federal privacy and data security mandates for health information. HHS anticipates the transfer of authority will eliminate duplication and increase efficiencies in how the department ensures that Americans’ health information privacy is protected.

HHS has the authority for administration and enforcement of the federal standards for health information privacy called for in HIPAA. The Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. OCR has been responsible for enforcement of the Privacy Rule since 2003. The Security Rule specifies a series of administrative, technical, and physical security procedures for covered entities to use to assure the confidentiality of electronic protected health information. The Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009 (ARRA), mandated improved enforcement of the Privacy Rule and the Security Rule.

Through a separate delegation, CMS continues to have authority for administration and enforcement of the HIPAA Administrative Simplification regulations, other than privacy and security of health information.

The transfer of Security Rule enforcement authority comes as guidance about new data breach rules for electronic protected health information is impending. This impending guidance relates to the implementation of new breach notification rules for covered entities and their business associates concerning their obligation to use of technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals, as required by amendments to HIPAA enacted under the Health Information Technology for Economic and Clinical Health (HITECH) Act passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA) last February. OCR officials have stated that they are working to publish the next set of regulations regarding these new breach notifications before the end of August, 2009.

In addition to adding the breach notification requirements, the HITECH Act also tightened the HIPAA mandates in several other respects. Among other things, it amended HIPAA to:

Broaden the applicability of the HIPAA’s Privacy Rules and penalties to include business associates;
Clarify that HIPAA’s criminal sanctions apply to employees or other individuals that wrongfully use or access PHI held by a covered entity;
Increase criminal and civil penalties for HIPAA Privacy Rules violators;
Allow State Attorneys General to bring civil damages actions on behalf of certain state citizens who are victims of HIPAA Privacy and Security Rule violations;
Modify certain HIPAA use and disclosure and accounting requirements and risks;
Prohibits sales of PHI without prior consent;
Tighten certain other HIPAA restrictions on uses or disclosures;
Tighten certain HIPAA accounting for disclosure requirements;
Clarify the definition of health care operations to excludes certain promotional communications; and
Expand the Business Associates Agreement Requirements.

These and other developments make it imperative HIPAA covered entities and their business associates take prompt action to immediately review and update their data security and privacy practices to guard against growing liability exposures under HIPAA and other federal and state laws. Covered entities must update policies and practices to avoid these growing liabilities. Business associates that have not already done so also must appoint privacy officers and adopt and implement privacy and data security policies and procedures fully compliant with HIPAA and other applicable federal and state rules, including amendments enacted as part of the American Recovery and Reinvestment Act of 2009 signed into law on February 17, 2009.

For more information about today’s announcement, see here. See here for the initial guidance and request for comments issued by HHS regarding these new security standards.

Chair Elect of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Cynthia Marcotte Stamer is nationally and internationally recognized for her work assisting businesses, employee benefit plan fiduciaries and vendors, governments, and other entities to develop administer and defend cost-effective employee benefit other human resources programs, policies and procedures to meet their budgetary, risk management and compliance and other objectives. Board certified in Labor & Employment law, Ms. Stamer applies her extensive experience regarding employment, employee benefit, tax, privacy and data security and other related laws to assists clients in a wide range of business and litigation contexts. The co-founder of the Solutions Law Consortium, Ms. Stamer also makes extensive use of cloud computing and other technology in her own practice and provides input to human resources and other clients others about the use of these and other technology tools to manage employee benefit, human resources, internal controls and other operations. In connection with this work, Ms. Stamer has works, writes and consults extensively with a diverse range of clients about the development, use technology and other processes to streamline health and other benefit, payroll and other human resources, employee benefits, tax, compliance and other business processes and the management and protection of sensitive personal and other information and data.

If your organization or employee benefit plan needs assistance managing or evaluating options or responsibilities associated with the use of technology and data in connection with its health care, employee benefits, tax or other operation or other human resources, employee benefits or and compliance concerns, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

More Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Comments Off on HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment | Employee Benefits, HIPAA, Human Resources, Insurance, Internal Controls, Privacy | Tagged: Employee Benefits, Employer, Employers, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, HIPAA, Human Resources, Insurance, Insurer, Internal Controls, Managed Care, Medical Coverage, Privacy, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

August 1, 2009

As the health care reform policy debate continues, Americans increasingly are asking where to read the text of the health care reform legislation that members of Congress are debating and how to share their input.

While numerous alternatives presently are pending before Congress, much of recent discussion and debate has focused around one of the following bills:

H.R. 3200: America’s Affordable Health Choices Act of 2009, introduced in the House by Rep Dingell, John D. on July 14, 2009 the text of which as originally introduced may be reviewed here. It has been the focus of significant mark up negotiation through out July before the following House Energy and Commerce, House Ways & Means, and House Education & Labor Committees; and
S. __, the Affordable Health Choices Act approved by the Senate Committee on Health, Education, Labor and Pensions, the text of which as approved may be reviewed here.

When reviewing these bills, Americans should keep in mind that members of Congress are engaged in ongoing negotiations about the specific provisions and language of these bills, as well as other legislation. Official developments generally may be monitored here.

Many American businesses and individuals also are asking about how and where to share their views, how to organize others to do the same and other questions about getting the word out. Here a some quick ideas. We encourage others to share.

The Coalition For Patient Empowerment and the Coalition for Responsible Health Care Reform linkedin group are two one of many resources where individuals are sharing information about these matters.
Concerned individuals should share their views both by faxing, e-mailing or telephoning key decisionmakers in Congress, as well as joining and participating in activities of other individuals and groups that share their concerns. Contact and get involved with this and other groups that share your concerns.
Contact the offices of your Congressional representatives in the House and Senate as well as other members of Congress that support your views and ask them about other groups and ways that you can share your views. They will welcome your input and involvement.
If you are aware of or involved in a group that shares your views, we encourage you to share it on the Coalition for Responsible Health Care Reform linkedin group. If you or others are planning a town hall or other health care reform meeting, use this or other linked in groups to spread the word.
If you are interested in volunteering to plan events in your region, let us know.

When communicating, consider targeting your messages to members of Congress whose votes are likely to be impacted by your communications.

For instance, with both the House and Senate in the majority in Congress, Democrats generally have greater control over what legislation moves forward. The Democratic Leadership of the House and Sentate generally can get legislation passed by their members as long as they can maintain consensus among the members of their parties. In connection with the health care reform proposals, however, cost and other considerations have made maintaining a consensus more difficult than on other legislation. Certain fiscally moderate members of the Democratic Party have expressed concern about the expense and other aspects of their Leadership proposed health care reform proposals. These Democrats in Congress generally the members of Congress whose votes are most likely to be impacted by public input and feedback generally and from voters in their districts and contributors specifically.

In the House of Representatives, these members likely are the “Blue Dog Democrats.” Read about Blue Dog Democrats here.

The fiscal conservatism of Blue Dog Democrats makes them more likely to listen to concerns about the cost and other concerns relating to the health care reform bills touted by the Democrat Leadership in the House and Senate. In fact, many Blue Dog Democrats already are speaking out about their concerns about the cost and other aspects of the Bill.

Contact from voters and contributors in their districts and others could make a major difference in the ability that the House Democrat Leadership needs to pass their Bill. Immediately contacting these members and getting others – particularly voters and contributors in the districts that elect these members – is one of the most important steps that concerned Americans can do to position their concerns to be heard.

For most concerned voters, telephone or fax contact is the best means to convey these messages. To minimize spam, most members only accept e-mail submitted through their website links. Security concerns can delay receipt of written correspondence for weeks.

For persons interested in making their voices heard and sharing information with others who wish to do the same, the following contact information may be of interest:

The number of the Capital Switchboard is 202-224-3121.

The Blue Dog Leadership Team and there telephone and fax numbers are:

Rep. Stephanie Herseth Sandlin (SD), Blue Dog Co-Chair for Administration, Telephone: 202.225.2801 , Fax: 202.225.5823

Rep. Baron Hill (IN-09), Blue Dog Co-Chair for Policy,Telephone: 202-225-4031, Fax: (202) 226-6866

Rep. Charlie Melancon (LA-03), Blue Dog Co-Chair for Communications, Telephone: 202-225-4031, Fax: (202) 226-3944

Rep. Heath Shuler (NC-11), Blue Dog Whip, Telephone: 202-225-6401, Fax: (202) 226-6422

The Blue Dog Members and their telephone numbers are :

Altmire, Jason (PA-04),(202)225-2565
Arcuri, Mike (NY-24), (202)225-3665
Baca, Joe (CA-43),(202)225-6161
Barrow, John (GA-12), (202) 225-2823
Berry, Marion (AR-01), (202) 225-4076
Bishop, Sanford (GA-02), (202) 225-3631
Boren, Dan (OK-02), (202) 225-2701
Boswell, Leonard (IA-03), (202) 225-3806
Boyd, Allen (FL-02), (202) 225-5235
Bright, Bobby (AL-02), (202) 225-2901
Cardoza, Dennis (CA-18), (202) 225-6131
Carney, Christopher (PA-10), (202) 225-3731
Chandler, Ben (KY-06), (202) 225-4706
Childers, Travis (MS-01), (202) 225-4306
Cooper, Jim (TN 5^th), (202) 225-4311
Costa, Jim (CA 20^th), (202) 225-3341
Cuellar, Henry (TX 28^th), (202) 225-1640
Dahlkemper, Kathleen A. (PA 3^rd), (202) 225-5406
Davis, Lincoln (TN 4^th),(202) 225-6831
Donnelly, Joe (IN 2^nd), (202) 225-3915
Ellsworth, Brad (IN 8^th), (202) 225-4636
Giffords, Gabrielle (AZ 8^th), (202) 225-2542
Gordon, Bart (TN 6^th), (202) 225-4231
Griffith, Parker (AL 5^th), (202) 225-4801
Harman, Jane (CA 36^th), (202) 225-8220
Herseth Sandlin, Stephanie (SD At Large), (202) 225-2801
Hill, Baron P. (IN 9^th), (202) 225-5315
Holden, Tim (PA 17^th), (202) 225-5546
Kratovil, Frank Jr. (MD 1^st), (202) 225-5311
McIntyre, Mike (NC 7^th), (202) 225-2731
Marshall, Jim (GA 8^th), (202) 225-6531
Matheson, Jim (UT 2^nd), (202) 225-3011
Melancon, Charlie (LA 3^rd), (202) 225-4031
Michaud, Michael H. (ME 2^nd), (202) 225-6306
Minnick, Walt (ID 1^st), (202) 225-6611
Mitchell, Harry E. (AZ 5^th), (202) 225-2190
Moore, Dennis (KS 3^rd), (202) 225-2865
Murphy, Patrick J. (PA 8^th), (202) 225-4276
Nye, Glenn C. (VA 2^nd), (202) 225-4215
Peterson, Collin C. (MN 7^th), (202) 225-2165
Pomeroy, Earl (ND At Large), (202) 225-2611
Ross, Mike (AR 4^th), (202) 225-3772
Salazar, John T. (CO 3^rd), (202) 225-4761
Sanchez, Loretta (CA 47^th), (202) 225-2965
Schiff, Adam B. (CA 29^th), (202) 225-4176
Scott, David (GA 13^th), (202) 225-2939
Shuler, Heath (NC 11^th), (202) 225-6401
Space, Zachary T. (OH 18^th), (202) 225-6265
Tanner, John S. (TN 8^th), (202) 225-4714
Taylor, Gene (MS 4^th), (202) 225-5772
Thompson, Mike (CA 1^st), (202) 225-3311
Wilson, Charles (OH-06), (202) 225-5705

You and others also are invited to join the discussion about these and other health care reform proposals and concerns by:

Joining the Coalition for Responsible Health Care Reform Group on Linkedin and registering to receive these updates here; and
E-mailing Cstamer@cttlegal.com to participate in the Coalition for Patient Empowerment.

Curran Tomko Tarski LLP Can Help

If your business needs assistance monitoring or providing input on health care reform or other human resources, employee benefit or compensation legislation or regulations, or auditing, updating or defending its health or other employee benefit, human resources, or compensation arrangements, or responding to employee benefits, employment or compensation related charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employer and employee benefit plan sponsors, administrators and others about labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising and defending these and other clients in labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the ABA RPTE Employee Benefit Plans and Other Compensation Group, a member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has extensive experience with health and retirement, work force and other employee benefit and employment matters. She is nationally and internationally known for her innovative work with employers, associations, churches, insurers and others to develop health benefit, onsight medical, wellness and other employee benefit and employment arrangements, as well as her involvement in health care, pension and other public policy advocacy.

More Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Comments Off on Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation | Employee Benefits, Employers, Employment Tax, ERISA, Health Care Reform, Health Plans, Human Resources, Immigration, Income Tax, Insurance, Malpractice, Preemption, Professional Liability, Tax, Uncategorized | Tagged: Corporate Compliance, Employee Benefits, Employer, Employers, ERISA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Labor, Managed Care, Medical Coverage | Permalink
Posted by Cynthia Marcotte Stamer

Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration

July 29, 2009

Cynthia Marcotte Stamer will speak about “Technology Issues for Tax Attorneys and their Clients” on September 26, 2009 at the American Bar Association 2009 Fall Joint Tax Meeting in Chicago.

The September 26 program will feature a panel discussion of:

Research tools, anti-virus, encryption and other technology practice aids, tools and tricks tax practitioners;
IRS, DOL and other rules impacting opportunities for employers and employee benefit plan administrators to use electronic communications to reduce employment and employee benefit plan communication expenses;
Electronic communications with government agencies and the need to be prepared to provide electronic records for tax audits;
Expanding personal information privacy and data security considerations; and
More.

Moderated by Frank Palmieri of Palmieri & Eisenberg, Alexandria, VA, the confirmed panelists include:

Catherine Sanders Reach of the American Bar Association, Chicago, IL;
Cynthia Marcotte Stamer of Curran Tomko Tarksi LLP, Dallas, TX;
Joy M. Mercer of Joy M. Mercer, PC, Florham Park, NJ; and
Danny A. Martin, Jr. of Shell Oil Company, Houston, TX.

The session is scheduled to take place from 2:30 p.m. – 4:00 p.m. on Saturday, September 26, 2009. To register for the meeting or other details, see here.

More Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Comments Off on Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration | Employee Benefits, Employers, Employment Tax, ERISA, Health Plans, Income Tax, Internal Controls, Privacy, Professional Liability, Risk Management, Tax, Wage & Hour | Tagged: Data Security, Employee Benefit Communications, Employee Benefits, Health Care, Health Plans, Privacy, Retirement Plans, Tax, Technology | Permalink
Posted by Cynthia Marcotte Stamer

House Democrats Introduce Their Version of Health Care Reform, the “America’s Affordable Health Choices Act of 2009”

July 15, 2009

House Democrats introduced their proposal for health care reform this afternoon (July 14, 2009), the “America’s Affordable Health Choices Act of 2009 (the “House Bill”). Introduced under the sponsorship of three key House committees -Energy and Commerce, Ways and Means, and Education and Labor — the 1018 page House Bill details the sweeping and comprehensive health care reforms that Democrat Leaders in the House are touting. A copy of the House Bill as introduced may be reviewed here.

The House Bill proposes sweeping reforms built around the establishment of a public plan option while technically continuing to permit private plans to operate but in a federally regulated form allowing for little meaningful plan design control to private payers, health care providers or the individuals choosing among the plan options. The Congressional Budget Office estimates that the coverage side of the bill will cost $1 trillion and cover 97 percent of the legal population within 10 years.

The following is a brief overview of certain key provisions of the House Bill drawn mostly from a series of high level summaries released by House Democrats along with the House Bill. Long on politically comforting phrasing and short on details, you can read these summaries here.

Public Plan Option. The House Bill proposes the establishment of a public health insurance option that would compete with allowable private plans, both of which would be subject to sweeping federal controls. Democrat House co-sponsors represent the House Bill:

Provides a public health insurance option that would compete with private insurers within the Health Insurance Exchange.
The public health insurance option would be made available in the new Health Insurance Exchange (Exchange) along with private health insurance plans that comply with the design dictates established in the House Bill.
The public health insurance option and private plan options meet the same benefit requirements and comply with the same insurance market reforms
The public option’s premiums would be established for the local market areas designated by the Exchange.
Individuals with affordability credits could choose among the private carriers and the public option.
Require that the public health plan and private health plan options and private options each must be financially self-sustaining
Promote primary care, encourage coordinated care and shared accountability, and improve quality.
Institute new payment structures and incentives to promote these critical reforms.
Specify health care provider participation in the plans will be voluntary; Medicare providers are presumed to be participating unless they opt out.
Provides for provider reimbursements for services from the plans initially will be established using “rates similar to those used in Medicare with greater flexibility to vary payments.
Speaker of the House Nancy Pelosi has announced plans to proceed immediately on mark up on the House Bill with the intention to of scheduling a vote on the House Bill by the end of July. Assuming that House leaders adhere to this schedule, the planned timetable leaves little opportunity for critical evaluation and input by members of Congress or the public who may have questions or concerns about the proposed legislation. Prompt and coordinated action is required for individuals with concerns about any of the proposed reforms.

Federal Mandates Health Plan Benefits. In order to achieve affordable, quality health care for all, the House Bill would impose federal standards regulating the benefits that the public health plan and private health plans would be required and permitted to offer. Under these provisions, the House Bill would:

Establish a standardized benefit package that covers essential health services.
Vest the power in the Secretary of Health & Human Services to decide the coverage that would be included in this mandated standardize benefit package.
Eliminate cost-sharing for preventive care (including well baby and well child care)
Impose caps annual out-of-pocket spending for individuals and families.
Create a new independent Benefits Advisory to recommend to the Secretary and update the core package of benefits.
Provide for the public health plan option to offer four tiers of benefit packages from which consumers can choose to best meet their health care needs. Each allowable plan would be required to provide the dictated core benefits.
- The Basic Plan would include the federally mandated core set of covered benefits and cost sharing protections;
- The Enhanced Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Basic plan;
- The Premium Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Enhanced plan; and
- The Premium Plus Plan would include the federally mandated core set of covered benefits, the more generous cost sharing protections of the Premium plan, and additional covered benefits (e.g., oral health coverage for adults, gym membership, etc.) that will vary per plan. In this category, insurers must disclose the separate cost of the additional benefits so consumers know what they’re paying for and can choose among plans accordingly.

The House Bill empowers the Secretary of Health & Human Services to decide the federally dictated, required core set of benefits provides coverage with input from a newly created Benefits Advisory Commission. These core benefits are intended to include inpatient hospital services, outpatient hospital services, physician services, equipment and supplies incident to physician services, preventive services, maternity services, prescription drugs, rehabilitative and habilitative services, well baby and well child visits and oral health, vision, and hearing services for children and mental health and substance abuse services. However, the particular, terms and scope of these benefits is left to HHS to define.

Health Insurance Exchange. The House Bill also calls for the establishment of a “Health Insurance Exchange” meeting federal mandates through which low income individuals initially, and certain small businesses would be offered the option to purchase health care coverage through federally mandated purchasing groups. In the first year, the House Bill provides for the Health Insurance Exchange to accept those without health insurance, those who are buying health insurance on their own, and small businesses with fewer than 10 people. In the second year, the Health Insurance Exchange could accept small businesses with fewer than 20 people. After that, “larger employers as permitted by the Commissioner.” In other words, expansion is discretionary, not mandated.

Affordability & Subsidies. The House Bill provides sliding-scale affordability credits for individuals and families with incomes above the Medicaid thresholds but below 400% of poverty and imposes a cap on total out-of-pocket spending for individuals and families covered under the plans regardless of income. In addition, the House Bill would broaden Medicaid coverage to include individuals and families with incomes below 133% of poverty.

Effective 2013, sliding scale affordability credits would be provided provided to individuals and families between 133% to 400% of poverty. That means the credits phase out completely for an individual with $43,320 in income and a family of four with $88,200 in income (2009).

The sliding scale credits limit individual family spending on premiums for the essential benefit package to no more than 1.5% of income for those with the lowest income and phasing up to no more than 11% of income for those at 400% of poverty.

The affordability credits also subsidize cost sharing on a sliding scale basis, phasing out at 400% of poverty, ensuring that covered benefits are accessible.

The Health Insurance Exchange would administer the affordability credits in relationship with other federal and state entities, such as local Social Security offices and Medicaid agencies.

The essential benefit package, and all other benefit options, limit exposure to catastrophic costs with a cap on total out of pocket spending for covered benefits. Special provisions would apply to Medicaid.

Effective 2013, individuals with family income at or below 133% of poverty ($14,400 for an individual in 2009) are eligible for Medicaid. State Medicaid programs would continue to cover those individuals with incomes above 133% of poverty, using the eligibility rules states now have in place.

Paying The Tab. House Democrats propose to finance approximately half of the estimated $1 trillion bill for their proposed reforms through projected $500 billion or so in savings from Medicare and Medicaid achieved by a variety of reimbursement and benefit cutbacks and other reforms. The rest of the financing would come from a combination of revenue expections from employer and individual mandates (an estimated $200 billion over 10 years) and a surtax on the richest 1.5 percent of Americans. The surtax is 1 percent on income between $350,000 and $500,000; 1.5 percent on income between $500,000 and $1,000,000; and 5.4 percent in income above $1,000,000. The House Bill permits the amount of this surtax to vary if the bill is less or more expensive than initially anticipated.

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

Other Helpful Resources & Other Information

We hope that this information is useful to you. If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Solutions Law Press Health Care Update publication available here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law Press Health Care Update here and be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

Comments Off on House Democrats Introduce Their Version of Health Care Reform, the “America’s Affordable Health Choices Act of 2009” | Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, Human Resources, Insurance, Public Policy | Tagged: Employee Benefits, Employer, Employment, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, Premium Subsidy, Tax | Permalink
Posted by Cynthia Marcotte Stamer

Coalition for Responsible Health Care Policy

Email Subscription

Pages

Recent Posts

Archives

Share this blog

Solutions Law Press HR & Benefits Update