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Newly-Medicare Eligible Not Driving Medicare Advantage Enrollment Increases

January 5, 2015

Findings of a just-released Kaiser Family Foundation study, At Least Half of New Medicare Advantage Enrollees Had Switched from Traditional Medicare During 2006-11, disputes the popular misperception that Baby Boomers’ overwhelmingly choice of private plans accounts for the steady rise in Medicare Advantage enrollment. Instead, Study reports that seniors switching from traditional Medicare account for the majority of new enrollees in Medicare Advantage each year.

According to the study published January 5, 2015 in the journal Health Affairs, fewer than one-quarter of people newly-eligible for Medicare enrolled in Medicare Advantage from the outset, and these newly-Medicare eligible comprised less than half of all new Medicare Advantage enrollees each year between 2006 and 2011. However the study also reports that the share of seniors who switch between traditional Medicare and Medicare Advantage is relatively small, reinforcing the notion that most Medicare beneficiaries make a coverage choice and stick with it.

Other findings reported in the study include:

The share of people newly eligible for Medicare that elected Medicare Advantage plan coverage instead of traditional Medicare at initial enrollment rose slightly from 15 percent in 2006 to 22 percent in 2011;

In each year between 2006 and 2011, the majority of new Medicare Advantage enrollees were people who had switched from traditional Medicare; seniors in their first few years on Medicare (in their late sixties) switched from traditional Medicare to Medicare Advantage at higher than average rates;

In each year between 2006 and 2011, fewer than 5 percent of traditional Medicare beneficiaries switched to Medicare Advantage, and a similar percentage of Medicare Advantage enrollees switched to traditional Medicare, suggesting that initial coverage decisions made by Medicare beneficiaries have long-lasting effects;

People dually eligible for Medicare and Medicaid (“dual eligibles”) and Medicare beneficiaries under age 65 and disabled disenrolled from Medicare Advantage at higher than average rates.

Understanding Medicare Advantage enrollment preferences and trends is of growing importance to Congress as well as private insurers and plan sponsors as the Obama Administration – long hostile to Medicare Advantage plans – is expected to continue to try to curb the growth of Medicare Advantage enrollment, cut Medicare Advantage expenditures and tighten regulations and enforcement against these private sector alternatives to traditional Medicare implemented as part of Republican-lead health care reforms during the Bush Administration.

For Advice, Training & Other Resources

If you need assistance resolving past Form 5500 or other filing exposures, or monitoring and responding to these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a Fellow in the American College of Employee Benefit Counsel, ABA, and State Bar of Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health plans and insurers about ACA, and a wide range of other plan design, administration, data security and privacy and other compliance risk management policies. Ms. Stamer also regularly represents clients and works with Congress and state legislatures, EBSA, IRS, EEOC, OCR and other HHS agencies, state insurance and other regulators, and others. She also publishes and speaks extensively on health and other employee benefit plan and insurance, staffing and human resources, compensation and benefits, technology, public policy, privacy, regulatory and public policy and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

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 the Cynthia Marcotte Stamer, PC 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 www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

NOTE: This article is provided for educational purposes. It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization. Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances.

The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. The Regulations now require that either we (1) include the following disclaimer in most written Federal tax correspondence or (2) undertake significant due diligence that we have not performed (but can perform on request).

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.

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Posted by Cynthia Marcotte Stamer

Advance Copies Of 2014 Form 5500s Reminder To Avoid Penalties By Confirming Compliance

December 16, 2014

Employers and other sponsors, plan administrators, third party administrators, and other service providers of employee benefit plans will want to check out the relevant advance informational copies of the 2014 Form 5500 and 5500-SF and final copy of the 2014 Form M-1 annual returns released by the U.S. Departments of Employee Benefits Security Administration, the Internal Revenue Service, and the Pension Benefit Guaranty Corporation December 15, 2015.

Subject to certain exceptions, federal law generally requires that the plan administrator of a pension as well as health and welfare benefit plan electronically file the appropriate annual return/report about the employee benefit plan’s financial conditions, investments and operations along with any required attachments satisfy annual reporting requirements under Title I and Title IV of the Employee Benefit Security Act (ERISA) and under the Internal Revenue Code (Code). Late or non-filing a required Form 5500 can be an expensive mistake. ERISA subjects the plan administrator of an employee benefit plan that fails to file required Form 5500s on time to penalties of up to $1,100 per day. Meanwhile, violations of the Code’s Form 5500 requirements by late filing or non-filing of a Form 5500 also carries its own penalties. In addition to DOL penalties, the IRS may impose a penalty of:

$1 for each participant for whom the plan fails to file a Form 8955-SSA statement for each day the failure continues, up to $5,000 for any plan year
$1 for each day for not filing a notification of change of status, up to $1,000
$1,000 for each failure to file an actuarial report by the required deadline and
$25 each day the Form 5500-series return is not filed, up to a maximum of $15,000.Copies of the current Form 5500 Forms and associated schedules are available here.
A quick review of the advance copies of the 2014 Form 5500s that plan administrators will be required to file for 2014 plan years reveals various changes compared to the 2013 Form 5500s. “The Changes to Note” discussion in the Instructions to the 2014 instructions to the Forms highlights these changes, which include:
In light of these penalties, plan administrators need to ensure that all required Form 5500s and other annual returns are appropriately completed and filed on a timely basis. To the extent that any previously required Form 5500s were not filed or were filed late, the plan administrator also will want to correct this deficiency promptly using the Voluntary Compliance Resolution Programs currently offered by the Internal Revenue Service and Department of Labor. See Labor Department Delinquent Filer Voluntary Compliance Program; IRS Notice 2014-35.

The MEWA Form M-1 compliance information that was filed as an attachment for 2013 now appears as three new questions on the Form 5500.
The Form 5500 and Form 5500-SF instructions for “Signature and Date” have been updated to caution filers to check the Filing Status. If the filing status is “Processing Stopped” or “Unprocessable,” the submission may not have had a valid electronic signature, and depending on the error, may be considered not to have been filed.
Filers are now required to provide the total number of active participants at the beginning of the plan year and at the end of the plan year on both forms.
Form 5500-SF filers now must provide the number of participants that terminated employment during the plan year with accrued benefits that were not fully vested.
Multiple-Employer Plan Information. In accordance with the Cooperative and Small Employer Charity Pension Flexibility Act, the Form 5500 and Form 5500-SF now require multiple-employer pension plans and multiple-employer welfare plans to include an attachment that generally identifies each participating employer, and includes a good faith estimate of each employer’s percentage of the total contributions during the year.
The instructions for line 1c(13) have been enhanced to set out what is an investment company registered under the Investment Company Act of 1940.
New Line 4f requires plans in critical status to indicate the plan year in which a plan is projected to emerge from critical status or, if the rehabilitation plan is based on forestalling possible insolvency, the plan year in which insolvency is expected.
Schedule SB, line 3 has been modified so that the funding target is reported separately for each type of participant (active, retired, or terminated vested). Schedule SB, Line 11b has been split into two parts: the calculation based on the prior year’s effective interest rate, and the calculation based on the prior year’s actual return. Modifications to Form 5500 and Form 5500-SF, and their schedules and instructions for plan year 2014 are described under “Changes to Note” in the 2014 instructions. Examples of these changes include:
DOL Form M-1 Compliance Information. The MEWA Form M-1 compliance information that was filed as an attachment for 2013 now appears as three new questions on the Form 5500.
Signature and Date. The Form 5500 and Form 5500-SF instructions for “Signature and Date” have been updated to caution filers to check the Filing Status. If the filing status is “Processing Stopped” or “Unprocessable,” the submission may not have had a valid electronic signature, and depending on the error, may be considered not to have been filed.
Active Participant Information. Filers are now required to provide the total number of active participants at the beginning of the plan year and at the end of the plan year on both forms.
Terminated Participant Vesting Information. Form 5500-SF filers now must provide the number of participants that terminated employment during the plan year with accrued benefits that were not fully vested.
Multiple-Employer Plan Information. In accordance with the Cooperative and Small Employer Charity Pension Flexibility Act, the Form 5500 and Form 5500-SF now require multiple-employer pension plans and multiple-employer welfare plans to include an attachment that generally identifies each participating employer, and includes a good faith estimate of each employer’s percentage of the total contributions during the year.
Schedule H. The instructions for line 1c(13) have been enhanced to set out what is an investment company registered under the Investment Company Act of 1940.
Schedule MB. New Line 4f requires plans in critical status to indicate the plan year in which a plan is projected to emerge from critical status or, if the rehabilitation plan is based on forestalling possible insolvency, the plan year in which insolvency is expected.
In Schedule SB, line 3 has been modified so that the funding target is reported separately for each type of participant (active, retired, or terminated vested); line 11b has been split into two parts: the calculation based on the prior year’s effective interest rate, and the calculation based on the prior year’s actual return; line 15 instructions have been expanded to address situations in which the AFTAP was not certified for the plan year; and line 27 and related instructions have been modified to reflect funding changes under the CSEC Act for defined benefit pension plans impacted by the act.
Line 15 instructions have been expanded to address situations in which the AFTAP was not certified for the plan year. Line 27 and related instructions have been modified to reflect funding changes under the CSEC Act for defined benefit pension plans impacted by the act.

The Form 5500 annual filing requirements are only one of a growing series of informational returns and reports that employee benefit plan sponsors or administrators are likely to be required to file concerning their employee benefit plans annually or in response to other specified events depending on the nature of the plan and the circumstances. In the case of health plans, for instance, the health care reforms of the Patient Protection & Affordable Care Act have resulted in a proliferation of new reporting requirements. Underfunding, plan termination or a series of other events also can trigger special reporting requirements for defined benefit pension plans. Other special rules also may apply for profit-sharing defined contribution pension plans, as well as other types of employee benefit plans. As proper understanding and timely fulfillment of these requirements is key to avoiding potentially significant liabilities, plan administrators, plan fiduciaries, employers or other plan sponsors and their service providers should consult with qualified experienced legal counsel to confirm they understand these requirements, conduct documented due diligence to confirm timely fulfillment of past filing requirements, take prompt action to correct any past deficiencies, and plan ahead and prepare for the upcoming 2014 filing deadlines by scheduling preparations and arranging to collect the necessary data to timely meet these deadlines now.

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Posted by Cynthia Marcotte Stamer

Out-Of-Date, Unpatched Software Triggers HIPAA Security Sanction

December 11, 2014

Health plans, health care providers ealth care clearinghouses (covered entities) and their business associates need to watch for and protect protected health information (PHI) against security exposures from unpatched or unsupported software and other weaknesses in their data security protections as part of their compliance obligations under the Security Rules of the Health Insurance Portability & Accountability Act (HIPAA).

The need to monitor and address data security threats associated with unpatched or unsupported software is demonstrated by the December 9, 2014 announcement by the U.S. Department of Health & Human Services (HHS) Office of Civil Rights (OCR) that Anchorage Community Mental Health Services (ACMHS) will pay $150,000 and adopt a corrective action plan to correct deficiencies in its HIPAA compliance program resulting from unpatched and unsupported software.

OCR opened an investigation against the five-facility, nonprofit provider of behavioral health care services to children, adults, and families in Anchorage, Alaska after receiving notification from ACMHS of a breach of unsecured electronic protected health information (ePHI) affecting 2,743 individuals due to malware compromising the security of its information technology resources.

According to the OCR announcement of the ACMHS Resolution Agreement with OCR, OCR’s investigation revealed that ACMHS had adopted sample Security Rule policies and procedures in 2005, but failed to follow these procedures. Moreover, OCR found that the reported security incident directly resulted of ACMHS failing to identify and address basic risks, such as not regularly updating their IT resources with available patches and running outdated, unsupported software.

“Successful HIPAA compliance requires a common sense approach to assessing and addressing the risks to ePHI on a regular basis,” said OCR Director Jocelyn Samuels. “This includes reviewing systems for unpatched vulnerabilities and unsupported software that can leave patient information susceptible to malware and other risks.”

In an effort to promote awareness of the need to assess and monitor the security of ePHI by covered entities and business associates, OCR continues to encourage covered entities and business associates to conduct regular documented evaluations of the adequacy of their ePHI safeguards and systems. To aid in this process, OCR and the Office of the National Coordinator for Health Information Technology have created a Security Rule Risk Assessment Tool available here to assist organizations that handle PHI in conducting a regular review of the administrative, physical and technical safeguards they have in place to protect the security of the information. Since OCR points to the Tool as a resource, covered entities and business associates should anticipate that their failure to identify and address any deficiencies in the areas identified by the tools as a potentially serious compliance issue. As a result, covered entities and business associates likely will want to take steps to ensure that their records include documented review of the adequacy of the security safeguards identified in the Tool. At the same time, covered entities and their business associates should not assume that the Tool adequately covers all potential HIPAA Security Rule exposures. OCR has made clear in this and other Resolution Agreements that HIPAA’s Security Rule requires ongoing monitoring and assessment of the adequacy of security in response to changes in software or system, emerging threats and other developments.

For Advice, Training & Other Resources

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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Posted by Cynthia Marcotte Stamer

2015 Tax Standard Mileage Rates Announced

December 10, 2014

Employers should review and update mileage reimbursement policies and rates in light of the 2015 standard mileage rates that the Internal Revenue Service (IRS) just announced will apply for federal tax deduction purposes in 2015. Meanwhile, employees and other individuals also will want to review these updated rates for purposes of estimating their expected mileage-related income and deductions for 2015.

Notice 2014-79 scheduled for official publication in Internal Revenue Bulletin 2014-53 on December 29, 2014 sets the optional standard mileage rates for substantiating the amount of deductible expenses for using an automobile for business, moving, medical, or charitable purposes. For 2015, the standard mileage rates are 57.5 cents for business use of an automobile, 14 cents for use of an automobile as a charitable contribution, and 23 cents for use of an automobile as a medical or moving expense. s

Notice 2014-79 also provides the amount a taxpayer must use in calculating reductions to basis for depreciation taken under the business standard mileage rate and the maximum standard automobile cost that a taxpayer may use in computing the allowance under a fixed and variable rate plan.

When projecting expected income or deductions based on the 2015 number, individuals planning to claim deductions for mileage and employers responsible for reporting income on taxable mileage reimbursements to employees and other service providers should keep in mind that the standard deductible mileage rates for medical travel mileage differ from those for other business purposes. The rules for using the optional standard mileage rates to calculate the amount of a deductible business, moving, medical, or charitable expense are in Rev. Proc. 2010-51.

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Posted by Cynthia Marcotte Stamer

12/5 Deadline For Insurers, Certain Self-Insured Health Plans To Submit 2014 Transitional Reinsurance Program Contribution Data

December 3, 2014

Friday, December 5, 2014 is the last day for health insurers and certain self-insured group health plans that are “contributing entities” to submit their required 2014 enrollment counts for the transitional reinsurance program contributions under 45 CFR 153.405(b).

Section 1341 of the Patient Protection & Affordable Care Act (ACA) established the transitional reinsurance program to help stabilize premiums in the individual market by partially offsetting issuers’ risk associated with high-cost enrollees.

The transitional reinsurance program will collect contributions from health insurance issuers and certain self-insured group health plans offering major medical coverage for the 2014, 2015 and 2016 benefit years. Under Final Rules published March 5, 2014, the insurer pays the fee for insured plans but where a group health plan is self-insured, the plan itself pays the fee.

In preparation for the collection of the transition reinsurance program fees, the Department of Health & Human Services (HHS) required that contributing entities, or third party administrators or administrative services-only contractors on their behalf, to complete the reinsurance contributions submission process through the Pay.gov website starting October 24, 2014. Subsequently, HHS extended the 2014 data submission deadline to submit the 2014 enrollment counts for transitional reinsurance program contributions but to date has not modified the deadline for making the required transition reinsurance program fees.

The reinsurance fee equals the yearly rate times the number of plan participants. The yearly rate is $63 for 2014, $44 for 2015, and to be announced for 2016.

Final Rules published March 5, 2014 provide that self-insured plans that are self-administered plans are exempt from the fees in 2015 and 2016. Since the guidance about these determinations is impacted by the allocation of fiduciary responsibilities under the plan and its associated vendor contracts, plan sponsors need to verify both whether their existing obligations qualifies as exempt and that any planned changes in their vendor contracts and other associated allocation of duties for its administration will not impact this determination. Employers and others sponsoring self-insured plans should consult with qualified counsel about whether they fall into this exception under the applicable rules, as well as to confirm that their program meets these and other applicable requirements.

Self-insured group health plan sponsors, fiduciaries and administrators should confirm with qualified legal counsel whether their program is a contributing entity required covered by the program and if so, both include the expected cost of the required payments in their budgets and obtain written confirmation from their third party administrator that the data reporting is completed and all other required steps to calculate, pay required contributions and fulfill reporting and other requirements of the program are completed for their records.

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Posted by Cynthia Marcotte Stamer

OIG Report Pressures EBSA To Finalize ERISA Fiduciary Investment Advice Rule & Repeal or Restrict Small Scope Audit Rule

December 3, 2014

Employee benefit plan sponsors, administrators, fiduciaries and the banks, insurers and other service providers involved in the investment or management of plan assets that currently rely upon existing Employee Benefit Security Administration (EBSA) limited scope audit regulations to avoid the expense and other burdens of conducting full scale audits of certain employee benefit plan assets held by banks, insurers and certain other regulated entities should watch for EBSA proposals to repeal or tighten these regulations in response to recommendations in a new report published by the U.S. Department of Labor Office of Inspector General (OIG) . If adopted by the EBSA, plans sponsors, administrators and fiduciaries could expect to incur significant increases in the annual audit expenses of their employee benefit plans, banks, insurers and other organizations currently covered by the small scope audit exception could expect greater scrutiny and expenses when dealing with employee benefit plan accounts, and all of these parties could expect greater fiduciary risk and other compliance obligations.

Repealing or tightening the EBSA limited scope audit regulations and finalizing proposed conflict of interest rules are two key recommendations that OIG urges EBSA to adopt to strengthen its ability to fulfill its mission to protect the security of retirement, health, and other private‐sector employer‐sponsored benefit plans for America’s workers, retirees, and their families in the Top Management Challenges Facing the Department of Labor report (Report) just released by the OIG.

While ERISA generally requires plan asset audits on most employee benefit plan assets, the small scope audit rule of the Employee Retirement Income Security Act (ERISA) currently authorizes so‐called “limited scope audits” for plan assets held in certain banks, insurance companies and certain other qualifying entities under the presumption that these organizations and their actions with respect to the assets are being audited by other entities for other purposes. As a result, the independent public accountants that conduct their audits express “no opinion” on the financial statements of the assets they hold on behalf of plans.

According to the OIG Report, this small scope audit rule inappropriately challenges EBSA’s oversight efforts by allowing as much as $3.3 billion in pension assets held in otherwise regulated entities, such as banks to “escape audit scrutiny.” The Report states, “These limited scope audits weaken assurances to stakeholders and may put retirement plan assets at risk because they provide little or no confirmation regarding the existence or value of plan assets.

In addition to attacking the small scope audit rule, OIG also urges EBSA to finalize its long awaited rules defining prohibited conflicts of interest for parties and individuals providing investment advice to employee benefit plans that EBSA has been working on since 2010. The so‐called “conflict of interest ‐‐ fiduciary investment advice rule” would broaden the definition of investment advice fiduciary for ERISA plans and individual retirement accounts to try to reduce the opportunities for financial conflicts of interest to compromise the impartiality of investment advice in the retirement savings marketplace.

Accordingly, the OIG Report concludes that EBSA should “concentrate on issuing final regulations on the so‐called “conflict of interest rule” and continue its work to obtain legislative changes repealing the limited‐scope audit exemption. In the interim, EBSA should continue to expand upon its existing authority to clarify and strengthen limited scope audit regulations and evaluate the ERISA Council’s recommendations on the issue.”

The OIG recommendations in the Report are likely to refuel pressure on EBSA to finalize the fiduciary investment advice rule and tighten or eliminate the small scope audit rule. Since either or both of these actions would likely increase the expense and other responsibilities and risks associated with the investment and maintenance of employee benefit plan assets, plan sponsors, fiduciaries, administrators, banks, insurers, investment advisors and others involved in the investment or administration of employee benefit plans and their assets should both carefully monitor the response of the EBSA to the OIG recommendations and react promptly to provide feedback to help shape any changes to manage these costs and expenses.

About Author Cynthia Marcotte Stamer

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

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

About Solutions Law Press

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

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

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Posted by Cynthia Marcotte Stamer

TEGE Counsel To Assume Responsibility For Employee Plans, Exempt Orgs & IRA Technical Guidance in 2015

December 3, 2014

The Department of Treasury announced today the transfer of technical responsibility for certain tax related technical issues involving exempt organizations, qualified retirement plans, and individual retirement annuities and accounts (IRAs) to the Office of Chief Counsel. The reassignment of duties scheduled for formal publication in Announcement 2014-34 in Internal Revenue Bulletin 2014-51 on Dec. 15, 2014.will happen as part of a realignment of the Tax Exempt and Government Entities Division (TE/GE). As a result of the realignment occurring at the beginning of 2015, the technical responsibility for preparing revenue rulings, revenue procedures, and certain other forms of published guidance, and issuing technical advice and certain letter rulings, will shift from TE/GE to the Office of Associate Chief Counsel (Tax Exempt and Government Entities) (TEGE Counsel). The annual revenue procedures addressing these matters will be updated in January of 2015 to reflect this realignment.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

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Posted by Cynthia Marcotte Stamer

Private Exchanges: Employer Health Program Panacea or Problem? Consider Carefully!

November 20, 2014

Employers trying to continue offering affordable health and welfare benefits amid the expanding costs and regulations enacted under the Patient Protection & Affordable Care Act (ACA) often are encouraged by some consultants and brokers to consider offering coverage options pursuant to a “private exchange” offering employees the options to get reimbursement for individual health coverage from a health reimbursement account (HRA) (collectively the “agencies”) or other choice optand cions.

While these options sound attractive, not all of these options work for all employers. The consumer driven health care and other private exchange lingo used to describe these arrangements often means different things to different people. Some “private exchanges” are little more than high-tech online cafeteria enrollment arrangements. See, e.g. A ‘Cynical’ Look at Private Exchanges Employers need to carefully scrutinize these proposals both for their compliance and other legal risks, affordability and cost, and other suitability.

When considering a private exchange or other arrangement, it is important to understand clearly the proposal, its design, operation, participating vendors, the charges, what is excluded or costs extra, and who is responsible for delivering what. Assuming an employer views the cost and operations merit considering the option, it also needs to carefully evaluate the legal compliance and risks of the arrangements.

The agencies have issued a long stream of guidance cautioning employers about the use of arrangements where the employer provides pre- or after-tax dollars to pay for or reimburse premiums for individual policies, and employers from paying or reimbursing employees for the cost of enrolling in coverage under a public health insurance exchange or both. See, e.g., DOL Technical Release 2013-03; IRS Notice 2013-54; Insurance Standards Bulletin, Application of Affordable Care Act Provisions to Certain Healthcare Arrangement; IRS May 13, 2014 FAQs available here. Most recently, for instance, the new FAQS About Affordable Care Act Implementation (XXII) (FAQ XXII) published by the agencies on November 6, 2014 reiterates previous agency guidance indicating that tax basis for purchasing individual coverage in lieu of group health plan coverage. FAQ XXII, among other things, states

HRAS, health flexible spending arrangements (health FSAs) and certain other employer and union health care arrangements where the employer promises to reimburse health care costs: are considered group health plans subject to the Public Health Service Act (PHS Act) § 2711 annual limits, PHS Act § 2713 preventive care with no cost-sharing and other group market reform provisions of PHS Act §§ 2711-2719 and incorporated by reference into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) but
HRA or other premium reimbursement arrangements do not violate these market reform provisions when integrated with a group health plan that complies with such provisions. However, an employer health care arrangement cannot be integrated with individual market policies to satisfy the market reforms. Consequently, such an arrangement may be subject to penalties, including excise taxes under section 4980D of the Internal Revenue Code (Code).

FAQ XXII reaffirms and reinforces this prior guidance, stating “Such employer health care arrangements cannot be integrated with individual market policies to satisfy the market reforms and, therefore, will violate PHS Act sections 2711 and 2713, among other provisions, which can trigger penalties such as excise taxes under section 4980D of the Code. Under the Departments’ prior published guidance, the cash arrangement fails to comply with the market reforms because the cash payment cannot be integrated with an individual market policy.”

Another potential arises under the various tax and non-discrimination rules of the Code and other federal laws. For instance, Code sections 105, 125 and other Code provisions prohibitions against discrimination in favor of highly compensated or key employees could arise based on the availability of options or enrollment participation. Historically many have assumed that these concerns could be managed by treating the premiums or value of discriminatory coverage as provided after-tax for highly compensated or key employees. However IRS and Treasury leaders over the past year have made statements in various public meetings suggesting that the IRS does not view this as a solution. Of course, FAQ XXII also highlights the potential risks of underwriting or other practices of offering individual or other coverage in a manner that discriminates against disabled, elderly or other employees protected against federal employment discrimination, Medicare, Medicaid, veterans or other federal employment or related laws.

In addition to confirming that the arrangement itself doesn’t violate specific Code or other requirements, employers and others responsible for structuring these arrangements also should exercise care to critically evaluate and document their analysis that the options offered are suitable. Like other employee benefit arrangements, ERISA generally requires that individual or group products offered by employers, unions or both be prudently selected and managed. Employers sponsoring or considering sponsoring these arrangements should expect that the DOL will expect that each product or benefit option offered be prudently selected in accordance with ERISA’s rules. Compensation arrangements for the brokers and consultants offering these arrangements also should be reviewed for prudence, as well as to ensure that the arrangements don’t violate ERISA’s prohibited transaction rules. Eligibility and other enrollment and related administrative systems and information sharing also should be critically evaluated under ERISA, as well as to manage exposures under the privacy and security rules of the Health Insurance & Portability Act (HIPAA) and other laws.

As a part of this analysis, employers and others contemplating involvement in these arrangements also will want to critically review the vendor contracts and operating systems of the vendors that will participate in the program both for legal compliance, prudence for inclusion, prohibited transactions, and other legal compliance, as well as to ensure that the contract by its terms holds the vendor responsible for delivering on service and other expectations created in the sales pitch. In reviewing the contract, special attention should be given to fiduciary allocations, indemnification and standards of performance, business associate or other privacy and data security assurances required to comply with HIPAA and other confidentiality and data security requirements and the like. As HHS discovered with the rollout of the Healthcare.gov exchange, unctionality also plays a big role in the value proposition justified, the contractual commitments from the vendor also should cover expected operational performance and reliability as well as legal compliance and risk management.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

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Posted by Cynthia Marcotte Stamer

Tell Senate To Pass Fix To ACA’s Full-Time Employee Definition

November 17, 2014

Employers and others concerned about the financial, reporting and other burdens of complying with the Patient Protection & Affordable Care Act (ACA) “pay-or-play” employer shared responsibility rules imposed under Internal Revenue Code (Code) § 4980H and other rules should review and consider letting their elected representatives and other Senate leaders know if they support the ACA corrections H.R. 4, the “Jobs For America Act” (Act). With key leadership appointments completed for both Houses for when the new Congress takes office January 3, 2014, now is a key time for businesses and others to let Senate and other leaders know what businesses see as the key legislative priorities that Congress should enact over the next six months.

Pending in the Senate since the House passed it on September 13, 2014, the Act as passed by the House would modify ACA. Among other things, the Act would:

Raise from 30 to 40 hours per week the number of hours per week that an employee would need to work to count as a “full-time employee” for purposes of Code § 4980H’s employer “pay-or play” shared responsibility rule requirement that employers to provide health care coverage for their full-time employees;
Amend the Code to let an employer, for purposes of determining whether such employer is an applicable large employer and thus required to provide health care coverage to its employees under ACA to exclude employees who have coverage under a health care program administered by the Department of Defense (DOD), including TRICARE, or the Department of Veterans Affairs (VA); and
Repeal of Medical Device Excise Tax on medical devices.

The Act also provides for enactment of numerous reforms beyond these specifically relevant to health care that Congressional supporters say will reduce burdens on business that cost jobs by undermining the competitiveness of U.S. businesses and workers.

While President Obama has vowed to veto any attempt by Republicans that he perceives would roll back the reforms enacted as part of ACA, many members of Congress have expressed support for tightening the definition of full-time employee for purposes of the employer pay-or-play mandates and certain other reforms. Following the designation of the members of the House and Senate that will occupy key leadership positions completed last week, committee assignments and other key leadership assignments are clarifying and members of both houses of Congress are now discussing the key legislative priorities and their work schedule for the balance of 2014 and when the new Congress is sworn in on January 3, 2014. Consequently, business and other leaders supporting the Act’s reforms or other ACA reforms should identify the key Congressional players on the committees influencing the Act and other legislation and begin communicating with the key leaders and their elected Congressional leaders about this support.

Interested persons can review the Act and monitor its status here.

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Posted by Cynthia Marcotte Stamer

HHS Delays Deadline To Submit ACA Reinsurance Program Enrollment Counts To 12/5

November 17, 2014

The Department of Health & Human Services (HHS) has yielded to requests for an extension of the deadline for contributing entities to submit their 2014 enrollment counts for transitional reinsurance program contributions under 45 CFR 153.405(b) required as part of the required under HHS’ rules implementing the Patient Protection & Affordable Care Act (ACA) transitional reinsurance program. The extended deadline is now 11:59 p.m. on December 5, 2014. The January 15, 2015 and November 15, 2015 payment deadlines remain the same.

The transitional reinsurance program established as part of ACA imposes a reinsurance fee applies in 2014, 2015, and 2016. Under Final Rules published March 5, 2014, the insurer pays the fee for insured plans but where a group health plan is self-insured, the plan itself pays the fee. Final Rules published March 5, 2014 provide that self-insured plans that are self-administered plans are exempt from the fees in 2015 and 2016. Employers and others sponsoring self-insured plans should consult with qualified counsel about whether they fall into this exception under the applicable rules, as well as to confirm that their program meets these and other applicable requirements.

The reinsurance fee equals the yearly rate times the number of plan participants. The yearly rate is $63 for 2014, $44 for 2015, and to be announced for 2016.

The Centers for Medicare and Medicaid Services (CMS) plans to run the first risk adjustment and reinsurance calculation estimates in mid-December, 2014 using data to be collected from insurers and TPAs on the EDGE system. It is unclear how if at all the extension announced by HHS for reporting will impact the timing of these calculations.

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Posted by Cynthia Marcotte Stamer

Check Out Updated Kaiser Calculator For 2015 Zip Code-Specific Premium and Tax Credit Estimates for Health Marketplace Coverage Coverage

November 13, 2014

The Kaiser Family Foundation has announced that its updated Health Insurance Marketplace Calculator now includes zip code-specific data on 2015 health plans that are being sold through the Patient Protection & Affordable Care Act’s (ACA’s) insurance marketplaces during the open enrollment period that begins this Saturday, November 15.

Kaiser says the new tool allows consumers around the nation to generate estimates of their health insurance premiums and government subsidies for 2015 plans that they purchase on their own through an ACA marketplace. The estimates are based on zip code, household income, family size and ages of family members. The calculator also helps consumers determine whether they could be eligible for Medicaid.

For Representation, Training & Other Resources

If you need assistance monitoring HIPAA and other health and health plan related regulatory policy or enforcement developments, or to review or respond to these or other health care or health IT related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 26 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

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 26 years experience advising health industry, insurance, technology and other clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to OCR Privacy and Civil Rights, DOL, IRS, SEC, insurance department and other investigation and enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the American Bar Association (ABA) Joint Committee on Employee Benefits annual agency meeting with the Department of Health & Human Services Office of Civil Rights, Ms. Stamer has worked extensively with health care providers, health plans, health care clearinghouses, their business associates, employers, banks and other financial institutions, and others on risk management and compliance with HIPAA and other information privacy and data security rules, investigating and responding to known or suspected breaches, defending investigations or other actions by plaintiffs, OCR and other federal or state agencies, reporting known or suspected violations, business associate and other contracting, commenting or obtaining other clarification of guidance, training and enforcement, and a host of other related concerns. Her clients include public and private health care providers, health insurers, health plans, technology and other vendors, and others. In addition to representing and advising these organizations, she also has conducted training on Privacy & The Pandemic for the Association of State & Territorial Health Plans, as well as HIPAA, FACTA, PCI, medical confidentiality, insurance confidentiality and other privacy and data security compliance and risk management for Los Angeles County Health Department, ISSA, HIMMS, the ABA, SHRM, schools, medical societies, government and private health care and health plan organizations, their business associates, trade associations and others.

For the past four years, Ms. Stamer has served as the scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR. Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the second year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

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Posted by Cynthia Marcotte Stamer

Ebola Scare & New OCR Privacy Guidance Reminder To Prepare For Pandemic & Other Emergencies

November 11, 2014

The recent US Ebola scare provided an important reminder to health care providers, health insurers and health plans, health care clearinghouses, employers and others of the importance of understanding and preparing to deal with health care privacy and other challenges arising from epidemics and other emergencies. In response to the recent Ebola and other contagious disease outbreaks and just as U.S. health care and other business leaders are working to prepare for the biggest contagious disease time of the year, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) is reminding health care providers, health plans, health care clearinghouses (Covered Entities) and their business associates that the privacy rules of the Health Insurance Portability & Accountability Act (HIPAA) requiring Covered Entities and their business associates to limit the use, access and disclosure of patient’s protected health information (PHI) continue to apply during emergency situations and help them understand when HIPAA allows them to share PHI in emergency situations in a new notice titled “HIPAA Privacy in Emergency Situations” (Guidance) published November 10, 2014. A business associate of a covered entity (including a business associate that is a subcontractor) also must continue to comply with HIPAA and may only make disclosures permitted by the Privacy Rule on behalf of a Covered Entity or another business associate to the extent authorized by its business associate agreement and consistent with HIPAA’s requirements. With annual flu season approaching and the Ebola and other pandemic issues still circling, it’s time for all organizations to prepare to respond to these and other emergencies including the special privacy and other concerns they often raise.

Sharing Patient Information

The Guidance begins by reminding Covered Entities and their business associates that HIPAA’s Privacy Rule continues to apply in emergency situations and requires Covered Entities protect and prohibits their use, access or disclosure of patient’s protected health information except as allowed by HIPAA unless the patient authorizes the Covered Entity to disclose the PHI in accordance with HIPAA’s requirements for authorization set forth in 45 CFR 164.508.

The Guidance then goes on to discuss the following circumstances that the HIPAA Privacy Rule might allow Covered Entities to share PHI without getting patient authorization, subject to the reminder that in many cases, HIPAA will require that the Covered Entity limit the disclosure to the minimum necessary disclosure necessary for the allowable purpose and require other conditions to be fulfilled:

Treatment.

Under the Privacy Rule, covered entities may disclose, without a patient’s authorization, protected health information about the patient as necessary to treat the patient or to treat a different patient. Treatment includes the coordination or management of health care and related services by one or more health care providers and others, consultation between providers, and the referral of patients for treatment. See 45 CFR §§ 164.502(a)(1)(ii), 164.506(c), and the definition of “treatment” at 164.501.

Public Health Activities.

The HIPAA Privacy Rule recognizes the legitimate need for public health authorities and others responsible for ensuring public health and safety to have access to protected health information that is necessary to carry out their public health mission. Therefore, the Privacy Rule permits covered entities to disclose needed protected health information without individual authorization:

To Or At The Direction Of A Public Health Authority.

The HIPAA Privacy Rule allows Covered Entities to share protected health information with Public Health Authorities authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury or disability like the Centers for Disease Control and Prevention (CDC) or a state or local health department. This would include, for example, the reporting of disease or injury; reporting vital events, such as births or deaths; and conducting public health surveillance, investigations, or interventions. A “public health authority” is an agency or authority of the United States government, a State, a territory, a political subdivision of a State or territory, or Indian tribe that is responsible for public health matters as part of its official mandate, as well as a person or entity acting under a grant of authority from, or under a contract with, a public health agency. See 45 CFR §§ 164.501 and 164.512(b)(1)(i). For example, a covered entity may disclose to the CDC protected health information on an ongoing basis as needed to report all prior and prospective cases of patients exposed to or suspected or confirmed to have Ebola virus disease.

The HIPAA Privacy Rule also allows Covered Entities to share information at the direction of a public health authority:

To a foreign government agency that is acting in collaboration with the public health authority. See 45 CFR 164.512(b)(1)(i); and
To persons at risk of contracting or spreading a disease or condition if other law, such as state law, authorizes the covered entity to notify such persons as necessary to prevent or control the spread of the disease or otherwise to carry out public health interventions or investigations. See 45 CFR 164.512(b)(1)(iv)

Disclosures to Family, Friends, and Others Involved in an Individual’s Care and for Notification.

The HIPAA Privacy Rule allows a Covered Entity to share protected health information:

With a patient’s family members, relatives, friends, or other persons identified by the patient as involved in the patient’s care;
About a patient as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the patient’s care, of the patient’s location, general condition, or death including where necessary to notify family members and others, the police, the press, or the public at large. See 45 CFR 164.510(b).

The Guidance reminds Covered Entities, however, that the Privacy Rule requires the Covered Entity to get verbal permission from individuals or otherwise be able to reasonably infer that the patient does not object, when possible. If the individual is incapacitated or not available, the Guidance states Covered Entities may share information for these purposes if, in their professional judgment, doing so is in the patient’s best interest.

The Guidance also confirms that Covered Entities may share protected health information with disaster relief organizations authorized by law or by their charters to assist in disaster relief efforts like the American Red Cross for the purpose of coordinating the notification of family members or other persons involved in the patient’s care, of the patient’s location, general condition, or death. It is unnecessary to obtain a patient’s permission to share the information in this situation if doing so would interfere with the organization’s ability to respond to the emergency.

Imminent Danger

The Guidance also states that Covered Entities that are health care providers may share patient information with anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public – consistent with applicable law (such as state statutes, regulations, or case law) and the provider’s standards of ethical conduct. See 45 CFR 164.512(j).

Disclosures to the Media & Others Not Involved in the Care of the Patient/Notification

The Guidance also reminds Covered Entities of the importance of closely adhering to HIPAA’s rules when responding to information requests from the medial or others not involved in the care of a patient. The Guidance states that when the media or other other party not involved un the patient’s care asks the Covered Entity for information about a particular patient by name, a hospital or other health care facility may release limited facility directory information to acknowledge an individual is a patient at the facility and provide basic information about the patient’s condition in general terms (e.g., critical or stable, deceased, or treated and released) if the patient has not objected to or restricted the release of such information or, if the patient is incapacitated, if the disclosure is believed to be in the best interest of the patient and is consistent with any prior expressed preferences of the patient. See 45 CFR 164.510(a). In general, except in the limited circumstances authorized in the HIPAA Privacy Rule, affirmative reporting to the media or the public at large about an identifiable patient, or the disclosure to the public or media of specific information about treatment of an identifiable patient, such as specific tests, test results or details of a patient’s illness, may not be done without the patient’s written authorization (or the written authorization of a personal representative who is a person legally authorized to make health care decisions for the patient).

Minimum Necessary Restriction Requirement

The Guidance cautions Covered Entities and their business associates that for most disclosures, a Covered Entity generally must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose. However, this minimum necessary requirement does not apply to disclosures to health care providers for treatment purposes.

Covered Entities may rely on representations from a public health authority or other public official that the requested information is the minimum necessary when making disclosures in response to request from those parties. For example, a covered entity may rely on representations from the CDC that the protected health information requested by the CDC about all patients exposed to or suspected or confirmed to have Ebola virus disease is the minimum necessary for the public health purpose.

Required Internal Restrictions On Use, Access & Disclosure

Internally, covered entities should continue to apply their role-based access policies to limit access to protected health information to only those workforce members who need it to carry out their duties. See 45 CFR §§ 164.502(b), 164.514(d).

Safeguarding Patient Information

Beyond limiting the use, access and disclosure of PHI, the Guidance also reminds Covered Entities and their business associates that even in emergency situations, HIPAA continues to require them to implement reasonable safeguards to protect patient information against intentional or unintentional impermissible uses and disclosures as well as to apply the administrative, physical, and technical safeguards of the HIPAA Security Rule to electronic PHI.

Limited Waiver

Although HHS has yet to take steps to trigger a limited waiver, the Guidance also reminds Covered Entities and their business associates that HHS has the power to do so, the effect of a limited waiver and the circumstances under which HHS could elect to apply a limited waiver to waive sanctions against a hospital for certain specific types of HIPAA violations while the waiver is in effect.

As the Guidance notes, the HIPAA Privacy Rule is not suspended during a public health or other emergency. Rather, the limited waiver rules only operates to permit the Secretary of HHS to waive certain provisions of the Privacy Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act. The limited waiver only applies when the President declares an emergency or disaster and HHS declares a public health emergency. When and if these requirements are met, HHS may waive sanctions and penalties against a Covered Entity that is a hospital for failing to comply with the following HIPAA Privacy Rule provisions:

The requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care. See 45 CFR 164.510(b).
The requirement to honor a request to opt out of the facility directory. See 45 CFR 164.510(a).
The requirement to distribute a notice of privacy practices. See 45 CFR 164.520.
The patient’s right to request privacy restrictions. See 45 CFR 164.522(a).
The patient’s right to request confidential communications. See 45 CFR 164.522(b).

If the Secretary issues such a waiver, Covered Entities and their business associates should keep in mind the waiver only applies to the list violations and only applies:

For so long as the waiver remains in effect;
In the emergency area and for the emergency period identified in the public health emergency declaration
To hospitals that have instituted a disaster protocol; and
For up to 72 hours from the time the hospital implements its disaster protocol.

When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol.

Not Necessarily Just About HIPAA

HIPAA is not necessarily the only law that Covered Entities, business associates or others need to consider when deciding what to disclose during an emergency or otherwise. The HIPAA Privacy Rule applies to disclosures made by and Covered Entities, business associates employees, volunteers, and other members of a Covered Entity’s or Business Associate’s workforce. The Privacy Rule does not apply to disclosures made by entities or other persons who are not Covered Entities.

Beyond HIPAA, Covered Entities, their business associates or members of their workforce, employers, and other organizations also need to consider whether other federal or state laws, ethical rules, contracts or policies may restrict use or disclosure, safeguard, or take other steps to protect PHI or other information. For instance, other federal laws, state law, professional ethical rules, contracts, facility policies or procedures, or other restrictions often apply to health care provides, insurers, brokers, employers or others. Employers, health care organizations, insurers and others also need to be concerned about potential discrimination, common law and statutory privacy, retaliation, defamation and other exposures.

Prepare For Compliance Now

The recent experiences of various health care organizations intimately involved in caring for the Ebola patients highlights the importance of anticipating, preparing and conducting training, and having your workforce practice to prepare to deal with the special challenges of dealing with HIPAA and other legal responsibilities in advance of emergency events. When preparing for these events, Covered Entities and business associates need to take into account the need to comply operationally as well as to document and retain records of compliance. They should both should anticipate and prepare to respond to both typical inquiries as well as those from the media, public and others. They also should consider how various types of emergencies could create new privacy or security risks. For instance, in certain emergency situations, recordkeeping or other systems could be disrupted, impacting the ability retain and subsequently produce required documentation. Furthermore, Covered Entities also should prepare to manage the patient and public relations aspects of these events including adverse impressions that often arise when the media or others are disappointed at being denied information because of compliance obligations, from breaches or perceived breaches, or other similar events.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 26 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

Comments Off on Ebola Scare & New OCR Privacy Guidance Reminder To Prepare For Pandemic & Other Emergencies | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Discrimination, Ebola, Employer, Health Plans, HIPAA, Leave, OCR, Pandemic, Privacy, Resolution agreement | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Kicks Off Dallas HR 2015 Monthly Lunch Series With 2015 Federal Legislative, Regulatory & Enforcement Update

November 10, 2014

Human resources and other management leaders are watching Washington to see if the change in Congressional control resulting from the November 4, 2014 mid-term election ushers in a more management friendly federal legal environment. Since President Obama took office, the Democrats aggressive pursuit of health care, minimum wage and other federal pro-labor legislation, regulations and enforcement has increased management responsibilities, costs and liabilities.

Nationally recognized management attorney, public policy advisor and advocate, author and lecturer Cynthia Marcotte Stamer will help human resources and other management leaders prepare for 2015 when she speaks on “2015 Federal Legislative, Regulatory & Enforcement Update: What HR & Benefit Leaders Should Expect & Do Now” at the 2015 Dallas HR monthly luncheon series kickoff meeting on January 13, 2014.

About The Program

While November 4, 2014 Republican election victories gave Republicans a narrow majority in both the House and Senate when the new Congress takes office January 3, 2015, the new Republican Majority may face significant challenges delivering on their promises to move quickly to enact more business-friendly health care, guest worker, tax and other key reforms Republicans say will boost the employment and the economy.

While President Obama and Democrat Congressional leaders say they plan to work with the new majority, President Obama already is threatening to use vetoes, regulations and executive orders to block Republicans from obstructing or rolling back his pro-labor policy and enforcement agenda. When the new Congress takes office, the narrowness of the Republican Majority in the Senate means Republicans can’t block a Democratic filibuster or override a Presidential veto without recruiting some Democratic support.

As the Democrats and Republicans head into battle again, Board Certified Labor & Employment attorney and public policy advocate Cynthia Marcotte Stamer will help human resources and other management leaders get oriented for the year ahead by sharing her insights and predictions on the legislative, regulatory and enforcement agendas that HR, benefit and other business leaders need to plan for and watch in 2015. Among other things, Ms. Stamer will:

Discuss how management can benefit from monitoring and working to influence potential legislative, regulatory and enforcement developments when planning and administering HR and related workforce policies;
Discuss the key workforce and other legislative, regulatory and enforcement priorities and proposals Democrats and Republicans plan to pursue during 2015;
Share her insights and predictions about how the narrow Republican majority, Mr. Obama’s lame duck presidency and other factors could impact each Party’s ability to pursue its agenda
Share tips management leaders can use to help monitor developments and to help shape legislation, regulation and enforcement through Dallas HR, SHRM and other organizations as well as individually;
Learn tips for anticipating and maintaining flexibility to respond to legislative, regulatory and enforcement developments; and
More

To register or get more details about the program, DallasHR, or both, see http://www.dallashr.org.

About Ms. Stamer

Board certified labor and employment attorney, public policy leader, author, speaker Cynthia Marcotte Stamer is nationally and internationally recognized and valued for her more than 25 years of work advising and representing employers, insurers, employee benefit plans, their fiduciaries and advisors, business and community leaders and governments about workforce, employee benefits, social security and pension, health and insurance, immigration and other performance and risk management, public policy and related regulatory and public policy, management and other operational concerns.

Throughout her career, Ms. Stamer continuously both has helped businesses and their management to monitor and respond to federal and state legislative, regulatory and enforcement concerns and to anticipate and shape federal, state and other laws, regulations, and enforcement in the United States and internationally.

Well known for her leadership on workforce, health and pension policy through her extensive work with clients as well as through her high profile involvements as the Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment, a founding Board member of the Alliance for Health Care Excellence, a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA), and the State Bar of Texas leadership and other involvements with the ABA including her annual service leading the annual agency meeting of Joint Committee on Employee Benefits (JCEB) representatives with the HHS Office of Civil Rights and participation in other JCEB agency meetings, past involvements with legislative affairs for the Texas Association of Business and Dallas HR and others, and many speeches, publications, and other educational outreach efforts, Ms. Stamer has worked closely with Congress and federal and state regulators on the Patient Protection & Affordable Care Act and other health care, pension, immigration, tax and other workforce-related legislative and regulatory reforms for more than 30 years. One of the primary drafters of the Bolivian Social Security reform law and a highly involved leader on U.S. workforce, benefits, immigration and health care policy reform, Ms. Stamer’s experience also includes working with U.S. and foreign government, trade association, private business and other organizations to help reform other countries’ and U.S. workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Ms. Stamer also contributes her policy, regulatory and other leadership to many professional and civic organizations including as 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 current Welfare Benefit Plans Committee Co-Chair, a Substantive Groups & Committee Member; a member of the leadership council of the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; the current Vice Chair of the ABA TIPS Employee Benefit Committee, and the past Coordinator of the Gulf Coast TEGE Council TE Division.

The publisher and editor of Solutions Law Press, Inc. who serves on the Editorial Advisory Boards of Employee Benefit News, HR.com, InsuranceThoughtLeadership.com and many other publications, Ms. Stamer also is a prolific and highly respected author and speaker, National Public Radio, CBS, NBC, and other national and regional news organization, Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Telemundo, Modern Healthcare, Business Insurance, Employee Benefit News, the Employee Benefits News, World At Work, Benefits Magazine, InsuranceThoughtLeadership.com, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, CEO Magazine, CFO Magazine, CIO Magazine, the Houston Business Journal, and many other prominent news and publications. She also serves as a planning faculty member and regularly conducts training and speaks on these and other management, compliance and public policy concerns for these and a diverse range of other organizations. For additional information about Ms. Stamer, see www.cynthiastamer.com.

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

New DOL, IRS & HHS FAQ Confirms Employers Can’t Pay, Use HRAs to Reimburse Employees For Individual Policy Premiums

November 6, 2014

Employer and other sponsors of healthcare reimbursement arrangements (HRAs), health flexible spending arrangements (Health FSAs) or other arrangements that reimburse employees for health premiums, their fiduciaries, insurers and administrators should re-evaluate the defensibility of these arrangements in light of supplemental guidance about the treatment of these arrangements under the annual limits, preventive care without cost-sharing and other Patient Protection & Affordable Care Act (ACA) group market reform rules, in the new FAQS About Affordable Care Act Implementation (XXII) (FAQ XXII) published November 6, 2014. It

FAQ XXII confirms that employers can’t reimburse employees on a pre-tax or after-tax basis for purchasing individual coverage in lieu of group health plan coverage as promoted by various vendors and others.

Employers Can’t Reimburse Employees For Individual Premiums

Concerning employer reimbursement of employees for premiums to purchase individual coverage, FAQ XXII makes clear that the Departments object to this practice. FAQ XXII makes clear that the Departments consider ACA’s market reforms to outlaw any arrangement pursuant to which an employer provides cash reimbursement to employees for the purchase of an individual market policy, regardless of whether the reimbursement is paid on a pre- or after-tax basis. According to the FAQ XXII, the Departments view any such employer’s payment arrangement part of a plan, fund, or other arrangement established or maintained for the purpose of providing medical care to employees regardless if the employer treats the money as pre-tax or post-tax to the employee that is group health plan coverage subject to the market reform provisions of ACA.

This position is consistent with a series of previous guidance that the Departments have published previously in which the Departments have stated, among other things, that:

Health reimbursement arrangements (HRAs), health flexible spending arrangements (health FSAs) and certain other employer and union health care arrangements where the employer promises to reimburse health care costs: are considered group health plans subject to the Public Health Service Act (PHS Act) § 2711 annual limits, PHS Act § 2713 preventive care with no cost-sharing and other group market reform provisions of PHS Act §§ 2711-2719 and incorporated by reference into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code);
HRA or other premium reimbursement arrangements do not violate these market reform provisions when integrated with a group health plan that complies with such provisions. However, an employer health care arrangement cannot be integrated with individual market policies to satisfy the market reforms. Consequently, such an arrangement may be subject to penalties, including excise taxes under section 4980D of the Internal Revenue Code (Code).

See, DOL Technical Release 2013-03; IRS Notice 2013-54; Insurance Standards Bulletin, Application of Affordable Care Act Provisions to Certain Healthcare Arrangement; IRS May 13, 2014 FAQs available here.

Code § 105 Reimbursement Plan Can’t Pay For Individual Policies

FAQ XXII also confirms the Departments’ view that arrangements where a vendor markets a product to employers claiming that employers can cancel their group policies, set up a Code section 105 reimbursement plan that works with health insurance brokers or agents to help employees select individual insurance policies, and allow eligible employees to access the premium tax credits or other HRA dollars to pay for Marketplace coverage are illegal.

According to FAQ XXII, these arrangements are problematic for several reasons including the following:

The arrangements themselves group health plans. Therefore, employees participating in such arrangements are ineligible for premium tax credits (or cost-sharing reductions) for Marketplace coverage. The mere fact that the employer does not get involved with an employee’s individual selection or purchase of an individual health insurance policy does not prevent the arrangement from being a group health plan. DOL guidance indicates that the existence of a group health plan is based on many facts and circumstances, including the employer’s involvement in the overall scheme and the absence of an unfettered right by the employee to receive the employer contributions in cash.12

Under DOL Technical Release 2013-03, IRS Notice 2013-54, and the two IRS FAQs addressing employer health care arrangements, such arrangements are subject to the market reform provisions of the Affordable Care Act, including the PHS Act § 2711 prohibition on annual limits and the PHS Act § 2713 requirement to provide certain preventive services without cost sharing. Such employer health care arrangements cannot be integrated with individual market policies to satisfy the market reforms and, therefore, will violate PHS Act §§ 2711 and 2713, among other provisions, which can trigger penalties such as excise taxes under Code § 4980D.

ACA & HIPAA Prohibit Employers From Offering Only High Risk Employees Cash In Lieu of Health Coverage

FAQ XXII also confirms the Department’s position that an employer violates the ACA provisions of PHS Act § 2705, ERISA § 715 and Code § 9815, as well as the Health Insurance Portability & Accountability Act (HIPAA) nondiscrimination provisions of ERISA section 702 and Code § 9802 prohibiting discrimination based on one or more health factors if it offers selectively only to employees with high claims risk a choice between enrollment in its standard group health plan or cash. FAQ XXII clarifies that while the Departments’ regulations allow more favorable rules for eligibility or reduced premiums or contributions based n an adverse health factor (sometimes referred to as benign discrimination), in the Departments’ view, this position does not extend to cash-or-coverage arrangements offered only to employees with a high claims risk. Accordingly, FAQ XXII states such arrangements will violate the nondiscrimination provisions, regardless of whether (1) the cash payment is treated by the employer as pre-tax or post-tax to the employee, (2) the employer is involved in the selection or purchase of any individual market product, or (3) the employee obtains any individual health insurance.

Beyond these concerns stated in FAQ XXII, employers and others contemplating offering such a choice also should discuss potential exposures under the Americans With Disabilities Act (ADA) and, depending on the nature of the condition, Medicare law.

In light of this new guidance and previous guidance published by the Departments, employers and others sponsoring or contemplating engaging in these arrangements are encouraged to contact competent counsel for assistance in understanding the potential concerns raised by involvement in these practices and their resolution.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on New DOL, IRS & HHS FAQ Confirms Employers Can’t Pay, Use HRAs to Reimburse Employees For Individual Policy Premiums | 105(h), ACA, Cafeteria Plans, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Premium Subsidies, Reporting & Disclosure | Tagged: Administrative Simplification, CMS, Health Benefits, Health Insurance, Health insurers, Health Plans, HHS, HPID, HPOES, out-of-pocket maximum, TPAs | Permalink
Posted by Cynthia Marcotte Stamer

Review Health Plans With Reference-Based Reimbursement Designs Under New Agency FAQ Guidance

November 6, 2014

Employer and other sponsors, insurers and administrators of non-grandfathered group health plans that pay a fixed amount for a particular procedure (for example, a knee replacement) where network providers have agreed to accept that referenced amount as payment in full (“reference-based pricing”) should verify their use of these practices complies in design and administration with the additional guidance on the Patient Protection & Affordable Care Act (ACA) out-of-pocket maximum rules in the new FAQs About Affordable Care Act Implementation (Part XXI) (FAQ XXI) published October 10, 2014 and other FAQs on the allowable use of reference-based pricing jointly published by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments).

As a part of the annual cost-sharing limits enacted as part of ACA, Public Health Service (PHS) Act section 2707(b) requires non-grandfathered group health plans to have individual’s maximum out-of-pocket (MOOP) limit for essential health benefits of not more than $6,600 for self-only coverage and $13,200 for coverage other than self-only coverage.

In addressing the use of reference-based pricing and other similar arrangements in earlier FAQs, the Departments expressed concern that some plans might misuse these provisions as a subterfuge for circumventing ACA’s cost-sharing limitations. At the same time, the Departments also acknowledge that properly used, reference-based pricing arrangements could help promote access to quality services on a more affordable basis for plan participants. Accordingly, the Departments in earlier FAQ guidance stated that pending further guidance the Departments would not treat a large group market plan issuer or self-insured group health plan that uses a reference-based pricing design as failing to comply with the MOOP requirements of PHS Act § 2707(b) solely because the plan or issuer treats providers that accept the reference amount as the only in-network providers, as long as the plan or issuer uses a reasonable method to ensure that it offers adequate access to quality providers but solicited comments on the standards that should apply to ensure that plans using reference-based pricing provide meaningful access to medically appropriate, quality care to prevent these arrangements’ use as a subterfuge to avoid ACA’s MOOP limits. See e.g. Affordable Care Act Implementation FAQs, Part XII, Q2; See Affordable Care Act Implementation FAQs, Part XVIII, Q2-Q5; Affordable Care Act Implementation FAQs, Part XIX, Q2-Q4; Affordable Care Act Implementation FAQs, Part XIX, Q4;

FAQ XXI published October 10, 2014 follows up on and supplements this prior guidance on reference-based pricing designs as they relate to ACA’s MOOP limitations. With regard to reference-based pricing, FAQ XXI indicates:

FAQ provides more insights of the circumstances that the Departments view as required to ensure that reference-based pricing arrangements comply with ACA’s MOOP limit rules. According to FAQ XXI, pending future guidance, for purposes of enforcing PHS Act section 2707(b)’s MOOP rules, the Departments will consider if the plan makes appropriate disclosures, the type of service subject to reference-based pricing, the plan’s arrangements for ensuring reasonable access, quality standards, and providing appropriate exceptions, and all other facts and circumstances when evaluating for purposes of enforcing ACA’s MOOP and other cost-sharing limitations whether a plan’s reference-based pricing design (or similar network design) that treats providers that accept the reference-based price as the only in-network providers and excludes or limits cost-sharing for services rendered by other providers is using a reasonable method to ensure adequate access to quality providers at the reference price.

Additionally, FAQ XXI also provides some insights about how the Departments intend to apply this facts and circumstances test. For instance, FAQ XXI states that the Departments expect plans using reference-based pricing designs to have:

Standards to ensure that the network is designed to enable the plan to offer benefits for services from high-quality providers at reduced costs, and does not function as a subterfuge for otherwise prohibited limitations on coverage;

Procedures to ensure that an adequate number of providers that accept the reference price are available to participants and beneficiaries;
Appropriate carve outs to meet ACA’s requirements about emergency services and other federal mandates;
Procedures to ensure that an adequate number of providers accepting the reference price meet reasonable quality standards;
An easily accessible exceptions process, allowing services rendered by providers that do not accept the reference price to be treated as if the services were provided by a provider that accepts the reference price if access to a provider that accepts the reference price is unavailable within a reasonable wait time or travel distance, the quality of services with respect to a particular individual could be compromised with the reference price provider or the like; and
Provides appropriate disclosures.

Concerning the Departments expectations about the disclosures that plans using reference-based pricing should make, FAQ XXI indicates that plans should provide the following disclosures regarding reference-based pricing (or similar network design) to plan participants free of charge.

Automatically in the plan’s summary plan description or another similar document should provide information regarding the pricing structure, including a list of services to which the pricing structure applies and the exceptions process.
Upon request provide a list of providers that will accept the reference price for each service; a list of providers that will accept a negotiated price above the reference price for each service; and information on the process and underlying data used to ensure that an adequate number of providers accepting the reference price meet reasonable quality standards.

FAQ XXI also cautions that its provisions only address the Department’s treatment of reference-based pricing as it relates to ACA’s cost-sharing requirements, not other requirements of ACA or other provisions of law, and that the Departments plan to monitor the use of reference-based pricing and may provide additional guidance in the future, including guidance relating to requirements other than ACA’s cost sharing requirements.

Given the Guidance in FAQ XXI and the Departments previous FAQs, employers and other sponsors, insurers, and administrators of non-grandfathered health plans using reference-based pricing or other similar designs will want to both ensure that their summary plan descriptions and other communications included the expected disclosures as well as to confirm that their arrangements squarely meet the existing guidance as well as monitor developments for new guidance. Among other things, this review should include a documentation of their prudent review and analysis of the adequacy of the plan and plan disclosures, network access, exception procedures and other required terms and operating procedures.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on Review Health Plans With Reference-Based Reimbursement Designs Under New Agency FAQ Guidance | 105(h), ACA, Cafeteria Plans, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Premium Subsidies, Reporting & Disclosure | Tagged: Administrative Simplification, CMS, Health Benefits, Health Insurance, Health insurers, Health Plans, HHS, HPID, HPOES, out-of-pocket maximum, TPAs | Permalink
Posted by Cynthia Marcotte Stamer

IRS Raises Health FSA Contribution Limit For 2015

November 5, 2014

On Friday, October 31, 2014, the Internal Revenue Service announced that the new 2015 health plan flexible spending account limit will rise from $2,500 to $2,550. This change takes effect January 1st. Employers, plan administrators and others involved in the administration of these arrangements may want to update plan documents and associated communications quickly to allow employees to take advantage of this increased limit.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on IRS Raises Health FSA Contribution Limit For 2015 | 105(h), ACA, Cafeteria Plans, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Premium Subsidies, Reporting & Disclosure | Tagged: Administrative Simplification, CMS, Health Benefits, Health Insurance, Health insurers, Health Plans, HHS, HPID, HPOES, TPAs | Permalink
Posted by Cynthia Marcotte Stamer

IRS Guidance Raises Concerns For Many Employers Offering “Skinny” & Other Limited Coverage Health Plans

November 4, 2014

Learn More Details By Participating In November 13, 2014 WebEx Briefing

Employers of 100 or more full-time employees that plan currently offering or planning to offer after November 4, 2014 health plans with mandate only or other “skinny” plan designs which do not provide “substantial coverage” for both in-patient hospitalization and physician services should re-evaluate the implications of their proposed plan design as well as existing and planned employee enrollment or other communications about those plans, in light of the new guidance provided by Notice 2014-69 released by the Internal Revenue Service (IRS) today. Learn all the details about this new guidance and its implication by participating in our November 13 , 2014 briefing.

Plans Must Provide “Substantial Coverage” for Both In-Patient Hospitalization & Physician Services To Provide Minimum Value

Notice 2014-69 makes it official that the Department of Treasury (including the IRS) and Department of Health and Human Services (collectively the Departments) believe that group health plans that fail to provide substantial coverage for in-patient hospitalization services or for physician services (or for both) (referred to in the Notice as Non-Hospital/Non-Physician Services Plans) do not provide the “minimum value” necessary to fulfill the minimum value requirements of Code §36B and 4080H(b).

The Notice also notifies sponsoring employers about the Departments expectations about notifications and other communications to employees about Non-Hospital/Non-Physician Services Plans) as well as shares details about the Departments plans for implementing their interpretation in planned final regulations by March, 2015.

Standards On Employer Communications About Non-Hospital/Non-Physician Services Plans

The Notice cautions employers about the need to use care in communicating with employees about Non-Hospital/Non-Physician Services Plan. Among other things, the Notice states that an employer that offers a Non-Hospital/Non-Physician Services Plan (including a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan) to an employee must:

Not state or imply in any disclosure that the offer of coverage under the Non-Hospital/Non-Physician Services Plan precludes an employee from obtaining a premium tax credit, if otherwise eligible, and
Timely correct any prior disclosures that stated or implied that the offer of the Non-Hospital/Non-Physician Services Plan would preclude an otherwise tax-credit-eligible employee from obtaining a premium tax credit.
Without such a corrective disclosure, the Notice warns that a statement (for example, in a summary of benefits and coverage) that a Non-Hospital/Non-Physician Services Plan provides minimum value will be considered to imply that the offer of such a plan precludes employees from obtaining a premium tax credit. However, an employer that also offers an employee another plan that is not a Non-Hospital/Non/-Physician Services Plan and that is affordable and provides minimum value (MV) is permitted to advise the employee that the offer of this other plan will or may preclude the employee from obtaining a premium tax credit.

Anticipated Approach In Planned Regulations

Regarding the Departments plans to adopt regulations implementing the interpretation of Code § 36B announced in the Notice, the Notice indicates:

HHS intends to promptly propose amending 45 CFR 156.145 to provide that a health plan will not provide minimum value if it excludes substantial coverage for in-patient hospitalization services or physician services (or both).
Treasury and the IRS intend to issue proposed regulations that apply these proposed HHS regulations under Code section 36B. Accordingly, under the HHS and Treasury regulations, an employer will not be permitted to use the MV Calculator (or any actuarial certification or valuation) to demonstrate that a Non-Hospital/Non-Physician Services Plan provides minimum value.
Treasury and IRS anticipate that the proposed changes to regulations will be finalized in 2015 and will apply to plans other than Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plans on the date they become final rather than being delayed to the end of 2015 or the end of the 2015 plan year. As a result, a Non-Hospital/Non-Physician Services Plan (other than a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan) should not be adopted for the 2015 plan year.
Solely in the case of an employer that has entered into a binding written commitment to adopt, or has begun enrolling employees in, a Non-Hospital/Non-Physician Services Plan prior to November 4, 2014 based on the employer’s reliance on the results of use of the MV Calculator (a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan), however, Notice 2014-69 states the Departments anticipate that final regulations, when issued, will not be applicable for purposes of Code section 4980H with respect to the plan before the end of the plan year (as in effect under the terms of the plan on November 3, 2014) if that plan year begins no later than March 1, 2015.
Employers offering Non-Hospital/Non-Physician Services Plans should “exercise caution in relying on the Minimum Value Calculator to demonstrate that these plans provide minimum value for any portion of a taxable year after publication of the planned final regulations.
The IRS will not require an employee to treat a Non-Hospital/Non-Physician Services Plan as providing minimum value for purposes of an employee’s eligibility for a premium tax credit under Code section 36B, regardless of whether the plan is a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan before final regulations take effect.

Employers & Plans Most Likely To Be Affected

The interpretation of minimum value and planned future regulatory changes announced in Notice 2014-69 primarily will impact large employers subject to the “pay or play” shared responsibility rules of Code § 4980H that offer a health plan providing coverage that meets the “minimum essential coverage” standards of Code § 4980H.

Under Code § 4980H(a), large employers that fail to offer employee and dependent coverage under a health plan providing “minimum essential coverage” to each full-time employee generally become liable to pay an employer shared responsibility payment of $165 per month ($2000 per year) (commonly referred to as the “A Penalty”) for each full-time employee.

In contrast, the penalties (commonly referred to as the “B Penalty”) created under Code § 4980H(b) generally comes into play when a covered large employer offers health plan coverage under a health plan providing minimum essential coverage but the plan either:

Does not provide minimum value; or
The cost to the employee for coverage exceeds 9.5% of the employee’s family adjusted gross income or an otherwise applicable safe harbor amount allowed under IRS regulations.Register For Briefing To Learn More
To learn more about Notice 2014-69 and its implications on employer health plan obligations and Code § 4980H shared responsibility exposures, register to participate in a special Solutions Law WebEx Briefing on the new guidance conducted by Attorney Cynthia Marcotte Stamer on Thursday, November 13, 2014 from Noon to 1:00 p.m. Central Time here.
Assuming at least one full-time employee of a covered large employer receives a subsidy for enrolling in health coverage through a health care exchange or “Marketplace” established under ACA, the B Penalty generally is equal to $250 per month ($3000 per year) multiplied by the number of such subsidized employees of the employer.

Learn More By Joining November 13, 2014 Solutions Law Press, Inc. Virtual Briefing Register Now!

To learn more about Notice 2014-69 and its implications on employer health plan obligations and Code § 4980H shared responsibility exposures, register to participate in a special Solutions Law WebEx Briefing on the new guidance conducted by Attorney Cynthia Marcotte Stamer on Thursday, November 13, 2014 from Noon to 1:00 p.m. Central Time here.

During the briefing, Ms. Stamer will:

Explain what health benefits, if any, employers must offer employees under current ACA guidance
Brief participants on this new guidance and other related guidance
Discuss potential implications for employers and their health plans
Discuss potential options for employers dealing with these plans and
Take questions from virtual audience participants as time permits.

Registration Fee is $35.00 per person Registration required for each virtual participant. Payment required via website registration in advance of the program.. Payment only accepted via website PayPal. No checks or cash accepted. Participation is limited and available on a first come, first serve basis. Persons not registered at least 24 hours in advance not guaranteed to receive access information or materials prior to commencement of the briefing.

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Interested persons can register here now!

About The Speaker

A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and health benefit consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker Board Certified in Labor & Employment Law, Ms. Stamer presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com), Insurance Thought Leadership,com and Employee Benefit News, and various other publications. With extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on health and other employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, as well as state legislatures, attorneys general, insurance and labor departments, and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training and serves on the faculty and planning committees of a multitude of symposium and other educational programs. See http://www.CynthiaStamer.com for more details.

A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and health benefit consultant Cynthia Marcotte Stamer has 25 plus years’ experience advising and representing private and public employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker Board Certified in Labor & Employment Law, Ms. Stamer presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com), Insurance Thought Leadership,com and Employee Benefit News, and various other publications. With extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on health and other employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, as well as state legislatures, attorneys general, insurance and labor departments, and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training and serves on the faculty and planning committees of a multitude of symposium and other educational programs. See http://www.CynthiaStamer.com. for more details.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides business and management information, tools and solutions, training and education, services and support to help organizations and their leaders promote effective management of legal and operational performance, regulatory compliance and risk management, data and information protection and risk management and other key management objectives. Solutions Law Press, Inc.™ also conducts and assist businesses and associations to design, present and conduct customized programs and training targeted to their specific audiences and needs.

For Added Information and Other Resources

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

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Comments Off on IRS Guidance Raises Concerns For Many Employers Offering “Skinny” & Other Limited Coverage Health Plans | ADA, Affordable Care Act, Claims Administration, Corporate Compliance, Disability, EEOC, EEOC, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, HIPAA, Human Resources, MEWA, Tax, Wellness Programs | Tagged: 4980H, ACA, ADA, Affordable Care Act, employer shared responsibility, GINA, HIPAA, HIPAA Portability, HIPAA Privacy, minimum value, MV, Pay or Play, Skinny Plans, Wellness, Wellness Programs | Permalink
Posted by Cynthia Marcotte Stamer

Supreme Court Delays Deciding Availabilities of ACA Subsidies For Coverage Purchased On Federal Exchange

November 3, 2014

The Supreme Court apparently still has not decided whether it will hear the appeal filed by plaintiffs in King v. Burwell that challenges the legality of the Obama Administration’s plan to pay Patient Protection and Affordable Care Act (ACA) premium subsidies to consumers living in those states that have declined to establish their own state exchanges under ACA who buy health care coverage from the Federal health care exchange. Despite discussing whether to hear the appeal last week, the Justices did not include King v. Burwell on the list of appeals scheduled for hearing published by the Supreme Court today. Instead, the Justices put off deciding whether to hear the appeal for now by relisting it.

Plaintiffs in King v. Burwell are asking the Supreme Court to set aside the July, 2014 ruling by the 4^th Circuit ruling that ACA allows the Administration to pay ACA subsidies to individuals enrolling in health care coverage through either a state exchange or the Federal exchange. While the Obama Administration argues ACA allows payment of premium subsidies regardless of whether the coverage comes through a state exchange or a federal exchange, the King v. Burwell plaintiffs argue that language in the ACA law that provides for subsidies for Americans who enroll “through an Exchange established by the State” prohibits payment of the subsidies for coverage purchased via the federal exchange. Since ACA relies heavily on the payment of subsidies to help make health care coverage affordable for millions of Americans earning less than 400 percent of poverty level and many states have not established their own exchanges, a Supreme Court decision in favor of the plaintiff/appellants would deal a devastating blow to ACA’s goal of making its mandated coverage affordable to Americans living in States without their own State exchanges.

The Supreme Court’s decision to hold off its agreement to decide the King v. Burwell appeal does not mean that the Justices won’t agree to decide the appeal at a later time. Many commentators believe the Supreme Court delayed accepting the appeal now because there is not currently any appellate court decision that conflicts with its holding since the full D.C. Circuit Court of Appeals vacated the Halbig v. Burwell ruling that ACA does not authorize subsidy payments for consumers from states without their own exchanges that buy coverage through the federal exchange previously issued by a panel of the D.C. Circuit Court of Appeals. The full D.C. Circuit Court of Appeals will not rehear and decide Halbig en banc. Oral arguments before the D.C. Circuit Court in Halbig now are scheduled December 17, 2014. If the Court of Appeals in Halbig or another Appeals Court reaches a conflicting decision to the 4^th Circuit decision in King v. Burwell, the Supreme Court likely will accept and schedule for hearing the King v. Burwell appeal. Pending these decisions, that delay leaves a cloud of uncertainty for Americans, their employers and others about whether subsidies will be available to help individuals earning less than 400% of the poverty level living in States that don’t have a State exchange to pay premiums for health care coverage bought through the Federal exchange.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on Supreme Court Delays Deciding Availabilities of ACA Subsidies For Coverage Purchased On Federal Exchange | 105(h), ACA, Cafeteria Plans, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Premium Subsidies, Reporting & Disclosure | Tagged: Administrative Simplification, CMS, Health Benefits, Health Insurance, Health insurers, Health Plans, HHS, HPID, HPOES, TPAs | Permalink
Posted by Cynthia Marcotte Stamer

HHS Delays Enforcement Of HIPAA HPID Requirements

November 2, 2014

Health plans and other covered entities under the Health Insurance Portability & Accountability Act won’t have to begin using Health Plan Identifiers (HPIDs) and conducting transactions on the Department of Health & Human Services (HHS) Health Plan and Other Entity Enumeration System (HPOES) by November 5, 2014 after all.

On Halloween, HHS announced it is delaying until further notice enforcement of the HPID and related HPOES use requirements that had been scheduled to take effect on November 5, 2014 under the HPID final rule adopted by HHS as part of its Administrative Simplification electronic transactions rules under 45 CFR 162, Subpart E.

In its October 31, 2014 announcement of its enforcement delay of the HPID/HPOES requirements, the HHS Centers for Medicaid Services (CMS) Office of E-Health Standards and Services (OESS) stated this enforcement delay applies to all HIPAA covered entities, including healthcare providers, health plans, and healthcare clearinghouses. OESS is the HHS division responsible for enforcement of compliance with HIPAA’s standard transactions, code sets, unique identifiers and operating rules.

CMS’ announcement of the HPID and related requirements likely comes as welcome relief for health insurers, health plans, third party administrators and others who before the announcement were required to begin conducting transactions in accordance with the new requirements.

HHS has struggled to rollout the HPID and HPOES system over the past several months. It has made numerous refinements to the guidance and HPOES system. In recent months, it has issued an ongoing series of exemptions, corrections and other guidance in response to widespread glitches,users and others have expressed concern about problems in CMS’ regulations as well as the readiness of the HPOES system itself. As the November 5, deadline for implementation approached, as well as undertaken significant user and other outreach to the anticipated user community and others about the guidance and use of the system. See e.g. 11/5 Deadline For Many Health Plans To Get Health Plan ID From CMS, HHS Warns Insurers, TPAS Complete ACA Reinsurance & Risk Adjustment Edge Server Pre-Registration Steps By 9/27. Despite these and other efforts, covered entities and others have expressed confusion and other concern about the requirements and the readiness of the HPOES.

These and other concerns apparently lead HHS to delay enforcement of the requirements. On September 23, 2014, these and other concerns prompted the National Committee on Vital and Health Statistics (NCVHS), an advisory body to HHS, recommended that HHS rectify in rule making that all covered entities (health plans, healthcare providers and clearinghouses, and their business associates) not use the HPID in the HIPAA transactions. HHS says that its delay in enforcement of the HPID rule will allow HHS to review the NCVHS’s recommendation and consider any appropriate next steps before enforcement begins.

While health plans, health insurers and other covered entities have more time to come into compliance, they and their business associates need to continue to monitor HHS guidance for new developments and refinements to the system and its associated requirements and preparations to adapt their processes and systems so as to be positioned to comply with the HPID requirements when CMS lifts its enforcement delay.

About Author Cynthia Marcotte Stamer

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

IRS Announces Employee Plan Cost-Of-Living Adjustments

October 27, 2014

The Internal Revenue Service (IRS) has announced the cost-of-living adjustments (COLA) to the compensation and contribution limits affecting individual retirement account, qualified defined benefit plan, qualified 401(k) and other defined contribution and defined benefit plan contributions under the Internal Revenue Code (Code) for 2015. Meanwhile, the Pension Benefit Guarantee Corporation (PBGC) also released updated guaranteed benefit amounts that will apply under the pension benefit guarantee programs it administers for 2015.

Code COLAs for 2015

The 2015 COLA limits under the Code among other things determine what individuals are considered highly compensated and key employees for purposes of the Code’s rules for qualified retirement plans, health plans, cafeteria plans, and certain other employee benefit plans, the amounts that employers and employee can contribute on a tax preferred basis a qualified retirement plan, and various other issues relating to the tax treatment of employee benefit plans. The 2015 COLA amounts under the Code compared to those for 2014 and 2013 are as follows:

IRAs
	2015	2014	2013
IRA Contribution Limit	$5,500	$5,500	$5,500
IRA Catch-Up Contributions	1,000	1,000	1,000
IRA AGI Deduction Phase-out Starting at
Joint Return	98,000	96,000	95,000
Single or Head of Household	61,000	60,000	59,000
SEP
SEP Minimum Compensation	600	550	550
SEP Maximum Contribution	53,000	52,000	51,000
SEP Maximum Compensation	265,000	260,000	255,000
SIMPLE Plans
SIMPLE Maximum Contributions	12,500	12,000	12,000
Catch-up Contributions	3,000	2,500	2,500
401(k), 403(b), Profit-Sharing Plans, etc.
Annual Compensation	265,000	260,000	255,000
Elective Deferrals	18,000	17,500	17,500
Catch-up Contributions	6,000	5,500	5,500
Defined Contribution Limits	53,000	52,000	51,000
ESOP Limits	1,070,000 210,000	1,050,000210,000	1,035,000205,000
Other
HCE Threshold	120,000	115,000	115,000
Defined Benefit Limits	210,000	210,000	205,000
Key Employee	170,000	170,000	165,000
457 Elective Deferrals	18,000	17,500	17,500
Control Employee (board member or officer)	105,000	105,000	100,000
Control Employee (compensation-based)	215,000	210,000	205,000
Taxable Wage Base	118,500	117,000	113,700

Employer and other employee benefit plan sponsors, fiduciaries and administrators should update their plan documentation, enrollment and other communications, protocols for identifying and managing contributions for highly compensated and key employees, contribution and discrimination testing and other related programs and practices as well as notify employees and encourage them to take into account these adjusted limitations when making their upcoming benefit enrollment choices for the upcoming year.

2015 PBGC Maximum Insurance Benefit Level

The PBGC also updated its limits for 2015 today. It employer plan has increased to $60,136 for 2015, up from $59,318 for 2014. The increase is not retroactive. Payments to retirees whose plans terminated before 2015 will not change. The guarantee for multiemployer plans has not changed.

Single-Employer Plan Guarantee The PBGC maximum guarantee for participants in single-employer plans is determined using a formula prescribed by federal law that calls for annual increases. The formula provides lower amounts for people who begin getting benefits from PBGC before age 65, reflecting the fact that they will receive more monthly pension checks over their expected lifetime. Conversely, amounts are higher for benefits starting at ages above 65. The formula also calls for reducing the amount for retirees who choose a payment form that continues benefits to a beneficiary after the retiree’s death. The following table shows the maximum annual guarantee limits for 2015 for sample ages and payment forms. Amounts for other ages are posted on the Maximum Monthly Guarantees table on PBGC’s website.

Age	Annual Maximum Single Life Annuity	Annual Maximum Joint & 50% Survivor Annuity*
65	$60,136	$54,123
60	$39,098	$35,180
55	$27,061	$24,355
*Assumes both spouses are the same age. Different amounts apply if that is not the case

The limits shown above generally apply for participants whose plan terminates in 2015. However, if a plan terminates in 2015 as a result of a bankruptcy that began in an earlier year, the limits in effect for that earlier year apply. In most cases, the single-employer PBGC guarantee is larger than the pension earned by people in such plans. In fact, according to a 2006 study, almost 85% of retirees receiving PBGC benefits at that time received the full amount of their earned benefit.(For more information, see the entry “Making Sense of the Maximum Insurance Benefit” in PBGC blog, Retirement Matters.) The limits shown above represent the cap on what PBGC guarantees, not on what PBGC pays. In some cases, PBGC pays benefits above the guaranteed amount. Whether that happens depends on the retiree’s age and how much money was in the plan when it terminated. For more information about how the single-employer guarantee works, see Pension Guarantees on PBGC.gov.

Multiemployer Plan Guarantee Limit The PBGC maximum guarantee for participants in multiemployer plans is also based on a formula prescribed by federal law. Unlike the single-employer formula, the multiemployer guarantee is not indexed (i.e., it remains the same from year to year) and does not vary based on the retiree’s age or payment form. Unlike the single-employer formula, it varies based on the retiree’s length of service. In addition, the multiemployer guarantee structure has two tiers, providing 100% coverage up to a certain level and 75% coverage above that level. For a retiree with 30 years of service, the current annual limit is 100% of the first $3,960 and 75% of the next $11,760 for a total guarantee of $12,870. This limit has been in place since 2001.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on IRS Announces Employee Plan Cost-Of-Living Adjustments | 105(h), Cafeteria Plans, Corporate Compliance, Defined Benefit Plans, Defined Contribution Plans, Employee Benefits, Employers, Employment Tax, ERISA, Executive Compensation, Fiduciary Responsibility, Health Plans, Human Resources, Reporting & Disclosure, Retirement Plans, Tax | Tagged: 401(k), Administrative Simplification, COLA, COLI, cost-of-living, Health Benefits, Health Plans, Retirement Plans | Permalink
Posted by Cynthia Marcotte Stamer

11/5 Deadline For Many Health Plans To Get Health Plan ID From CMS

October 21, 2014

With the November 5, 2014 deadline for “controlling health plans” CHPs (except small health plans) to obtain the Health Plan Identifier (HPID) required by the Department of Health and Human Services (HHS) Administrative Simplification: Adoption of a Standard for a Unique Health Plan Identifier Final Rule (Final Rule) the Centers for Medicare & Medicaid Services (CMS) is working to streamline the process CHPs use to get the HPID.

Part of CMS’ continuing implementation of electronic transaction requirements enacted as part of the Administrative Simplification reforms of the Health Insurance Portability & Accountability Act (HIPAA) to reduce the cost of processing health payment transactions, the HPID requirement may apply to self-insured group health plans sponsored by employers. A self-insured health plan must answer two questions to determine whether it must obtain a HPID.

Does it meet the definition of health plan under 45 CFR 160.103? A health plan is an individual or group plan that provides or pays the cost of medical care (as defined in 45 CFR 160.103).
If it meets the definition of a health plan, is it a controlling health plan (CHP)? A CHP is a health plan that controls its own business activities, actions, or policies, or is controlled by an entity that is not a health plan.
A health plan is also a CHP if it has one or more sub health plans that it controls by directing the SHP’s business activities, actions, or policies.

The deadline for compliance with the HPID requirement generally depends upon the annual receipts of the CHP. The November 5, 2014 deadline generally applies to CHPs other than small health plans, which get an extra year to obtain their HPID. Small health plans generally are those with annual receipts of $5 million or less). Small health must obtain a HPID by November 5, 2015.

For insured group and individual health plans, the insurance carrier is the entity responsible for obtaining the HPID. In these fully insured arrangements, the Final Rule provides that insured individual employer plans are sub health plans (SHPs) to the fully insured CHPs which are permitted but not required to get their own HPID.

In contrast, when a self-insured health plan is a CHP, responsibility for obtaining the required HPID rests with the health plan. However, CMS guidance allows the self-insured CHP to have its third party administrator or another party help it negotiate the process of getting the required HPID.

To obtain a HPID, a CHP must:

Create an account in the CMS Enterprise Portal to obtain a user ID and password.
Select the link to register in the Health Insurance Oversight System (HIOS).
After registering in HIOS, select the link for the Health Plan and Other Entity Enumeration System (HPOES), and follow the prompts.

CMS has posted a User Manual and a Systems Quick Guide to help CMPs obtain their HPID and otherwise use the Health Plan and Other Entity Enumeration System (HPOES).

Growing pains in the evolution of the HPID guidance and HPOES system have prompted CMS to make several refinements to the guidance and the system. Recently, CMS updated the HPOES to allow multiple controlling health plans to register for a HPID using a single employer identification number (EIN). Also, on October 14, 2014, CMS announced the release of a software enhancement to HPOES which streamline the HPID application process so that the system automatically approves the application and generates an HPID upon submission CMS has updated two resources to help health plans register for an HPID:

A revised Quick Guide to obtaining an HPID for controlling health plans
An updated User Manual, which provides details about the registration process.

Employers and others sponsoring or administering these arrangements should confirm that the HPID is timely required for its health plan if and when required. If planning to rely upon a third party administrator or other service provider, the employer or other sponsor should consider including the agreement between the parties concerning the allocation of these responsibilities in its administrative or other services agreement with that vendor.

The HPID requirement is just one of many evolving requirements for health plans. As the U.S. Department of Labor and other agencies are stepping up health plan audits and enforcement, employer and other health plan sponsors and fiduciaries generally will want not only to review their health plan documentation, processes and procedures for compliance, but also to retain documentation of these efforts. To the extent that the sponsor or a fiduciary relies upon a third party administrator, broker, consultant or other third party to design or administer the program, it should confirm that any the parties have in place required business associate or other confidentiality agreements as well as document other compliance and performance expectations in a carefully crafted written agreement.

About Author Cynthia Marcotte Stamer

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

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

New EEOC Lawsuit Challenges Orion Energy Systems Employee Benefit Program Under ADA

September 19, 2014

Employers using or considering using health risk assessments or other wellness programs should carefully monitor a new Equal Employment Opportunity Commission (EEOC) lawsuit, EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019 (E.D.Wis.), which is the first time the EEOC has sued an employer under the Americans With Disabilities Act (ADA) based on the employer’s wellness program.

Although the alleged facts in Orion reflect its practices might be much more aggressive than in common use by most employers, the principles argued by the EEOC in Orion raise potential concerns for the growing number of employers relying on health risk assessment and other wellness programs to help manage health benefit costs, employee disabilities, and other concerns.

According the Kaiser Family Foundation, health risk assessments and other wellness program use is increasingly common. The majority of employers reportedly now offer some sort of wellness program — 94 percent of employers with over 200 workers, and 63 percent of smaller ones.

Employers that use these arrangements generally believe their health risk assessment or other wellness benefit passes legal muster as long as it complies with standards established in final regulations amending the nondiscrimination requirements of the Health Insurance Portability Act (HIPAA). The sponsors of these arrangements often are unaware of or discount the likelihood that the EEOC might view these and other wellness benefit arrangements as violating the ADA prohibitions against medical inquiries that are not both job related and necessary to the job or other ADA disability discrimination prohibitions.

In Orion, the EEOC contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries. When employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert.

The EEOC charges Orion violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called “wellness program,” which the EEOC charges was not voluntary, and then by firing the employee when she objected to the program.

The EEOC maintains that Orion’s wellness program violated the ADA as applied to Schobert. Additionally, EEOC also charges Orion wrongfully retaliated against Schobert because of her good-faith objections to the wellness program. The EEOC further asserts that Orion interfered with Schobert’s exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries — which are not job-related — in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all.”

The Orion litigation reminds businesses of the advisability or properly designing and managing wellness programs to comply with applicable legal requirements.

Financial or other incentive and reward programs of course must be designed to comply with HIPAA’s nondiscrimination rules, the ADA and privacy rules. Privacy requirements also can be a challenge under these laws unless information collected from screening and other wellness and disease management activities is carefully collected, routed and handled to comply with HIPAA, GINA and other privacy rules. See, e.g, EBSA Issues Guidance on Health PLan Wellness & Disease Management Programs Subject to HIPAA Nondiscrimination Rules; ADAAA Amendment Broader “Disability Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks; Businesses Face Rising Disability Discrimination Enforcement Risks; EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act.

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

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

About Author Cynthia Marcotte Stamer

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

EBSA Invites Input By November 19 On Need for More Regulation Of Investment Windows

August 20, 2014

November 19, 2014 is the deadline for commenting on a request for information on the use of brokerage windows, self-directed brokerage accounts and similar features in 401(k)-type plans schedule for publication by the Department of Labor in tomorrow’s (August 21, 2014) Federal Register. An advanced copy of the RFI can be viewed here.

Some 401(k)-type plans offer participants access to brokerage windows in addition to, or in place of, specific investment options chosen by the employer or another plan fiduciary. These “window” arrangements can enable or require individual participants to choose for themselves from a broad range of investments. The department received a number of questions about brokerage windows after the publication of a final regulation on participant-level fee disclosure.

According to Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi, the Labor Department’s goal in issuing this RFI is to determine whether, and to what extent, regulatory standards or other guidance about the use of brokerage windows may be necessary to adequately protect participants’ retirement savings. To this end, the RFI asks questions on brokerage windows, including: the scope of investment options typically available through a window; demographic and other information about participants who commonly use brokerage windows; the process of selecting a brokerage window and provider for a plan; the costs of brokerage windows; and what kind of information about brokerage windows and underlying investment options typically is available and disclosed to participants.

Plan fiduciaries, sponsors, and service providers with plans offering these brokerage windows should act promptly to submit their input by the November 19, 2014 deadline.

For Advice, Training & Other Resources

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Posted by Cynthia Marcotte Stamer

Some Group Health Plans Face 8/18 Deadline To Correct Form 8963 Under Notice 2014-47 Risk Adjustment Fee Guidance

August 12, 2014

Group health plan sponsors and third party administrators of certain group health plans who already filed their Form 8963, “Report of Health Insurance Provider Information,” who expect that their group health plan will be exempt in the 2014 fee year from the temporary risk adjustment fee assessment imposed by the Patient Protection & Affordable Care Act (ACA) based on impending guidance scheduled for publication on September 2, 2014 in Notice 2014-47 may need to act quickly to meet the August 18, 2014 deadline for filing a corrected Form 8963, “Report of Health Insurance Provider Information.”

The temporary reinsurance fee and risk adjustment provisions of ACA are intended to generate $25 billion in revenues from assessments on insured and self-insured group health plans that the federal government plans to use to partially reimburse commercial insurers writing policies in public exchanges for individuals with high health care costs.

ACA generally provides that the reinsurance fee applies to covered entities that are not excluded under ACA in 2014, 2015, and 2016. Under Final Rules published March 5, 2014, the insurer pays the fee for insured plans but where a group health plan is self-insured, the plan itself pays the fee. Final Rules published March 5, 2014 provide that self-insured and self-administered plans are exempt from the fees in 2015 and 2016, however.

The reinsurance fee equals the yearly rate times the number of plan participants. The yearly rate is $63 for 2014, $44 for 2015, and to be announced for 2016.

ACA § 9010 generally requires payment of the temporary risk adjustment fee ($64 per covered person for 2014) by every “covered entity. ACA § 9010 defines the term “covered entity” to include every entity that provides health insurance for any United States health risk during the calendar year in which the fee is due (the fee year) other than those excluded under ACA § 9010(c)(2). However, ACA § 9010(c)(2) generally excludes from the definition of covered entity:

Self-insured employers;
Governmental entities;
Certain nonprofit corporations; and
Non-employer established voluntary employees beneficiary associations under Internal Revenue Code § 501(c)(9) entities.

Notice 2014-47 scheduled for publication on September 2 by the Department of Treasury (Treasury) will clarify the group health plans exempted from the obligation to pay the temporary risk adjustment fee imposed by Section 9010 of ACA on “covered entities” in IRB 2014-36 will clarify:

When a group health plan qualifies as excluded from the general definition of “covered entity” under the exclusions set forth in ACA § 9010(c)(2); and
That a controlled group does not have to report for a controlled group member who would not qualify as a covered entity in the 2014 fee year if it were a single-person covered entities.

According to Notice 2014-47:

For the 2014 fee year, the IRS and Treasury will not treat any entity as a covered entity if it is excluded from the definition of a covered entity because it qualifies for one of the exclusions under § 9010(c)(2) for the entire 2013 data year or qualifies for one of the exclusions under § 9010(c)(2) for the entire 2014 fee year, which began on January 1, 2014. Since the IRS and Treasury will not treat such an entity as a covered entity, it should not report its net premiums written for the 2013 data year.
For the 2014 fee year, a controlled group must report net premiums written only for those persons who are controlled group members at the end of the day on December 31 of the 2013 data year and who would qualify as a covered entity in the fee year if it were a single-person covered entity. A controlled group should not report net premiums written for any controlled group member who would not qualify as a covered entity in the 2014 fee year if it were a single-person covered entity. Such entity will be treated as a member of the controlled group for other purposes, however, such as joint and several liability for the fee amount allocated to the controlled group.
The IRS and Treasury will publish additional guidance in the future about the scope of the exclusions in ACA § 9010(c)(2) from the general definition of the term covered entity for fee years after the 2014 fee year.
Any entity that needs to correct a previously submitted Form 8963, “Report of Health Insurance Provider Information,” due to the clarification provided in this notice must do so by faxing the corrected Form 8963 to 877-797-0235 (a toll-free number) no later than Monday, August 18, 2014. The IRS cannot process a Form 8963 received after this date. The IRS and Treasury recognize that entities will not know whether they qualify for one of the exclusions under § 9010(c)(2) for the entire 2014 fee year until the end of 2014. Entities that reasonably project that they will qualify for an exclusion under § 9010(c)(2) for the entire 2014 fee year may submit a corrected Form 8963 on or before August 18, 2014, even though the 2014 fee year is not yet over.

The clarifying guidance of Notice 2014-47 comes as the Department of Health & Human Services (HHS) is warning group health insurers third party administrators (TPAs) of self-insured group health plans that are covered entities to get moving on their preparations to register and conduct required interactions with the EDGE Server that HHS plans to use to collect and administer the data necessary to administer the temporary reinsurance fee and risk adjustment provisions of ACA by mid-September, 2014.

Group health plans and their administrators are urged to evaluate and confirm their status and if necessary, file a corrected Form 8963 no later than August 18, 2014. Additionally, any health insurance issuer or non-excepted group health plan should ensure that appropriate arrangements are in place to fulfill responsibilities for registration and use of the EDGE system as required to meet the reporting requirements.

For Advice, Training & Other Resources

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Posted by Cynthia Marcotte Stamer

HHS Warns Insurers, TPAS Complete ACA Reinsurance & Risk Adjustment Edge Server Pre-Registration Steps By 9/27

August 8, 2014

The Department of Health & Human Services (HHS) is warning group health insurers third party administrators (TPAs) of self-insured group health plans and to get moving on their preparations to register and conduct required interactions with the EDGE Server that HHS plans to use to collect and administer the data necessary to administer the temporary reinsurance fee and risk adjustment provisions of the Patient Protection & Affordable Care Act (ACA). HHS says insurers and TPAs have work to complete by 9/27 to prepare to comply with the EDGE system data reporting that HHS will require them to conduct as part of ACA’s reinsurance premium and risk adjustment risk sharing provisions.

ACA provides that the reinsurance fee applies in 2014, 2015, and 2016. Under Final Rules published March 5, 2014, the insurer pays the fee for insured plans but where a group health plan is self-insured, the plan itself pays the fee. Final Rules published March 5, 2014 provide that self-insured and self-administered plans are exempt from the fees in 2015 and 2016, however.

The reinsurance fee equals the yearly rate times the number of plan participants. The yearly rate is $63 for 2014, $44 for 2015, and to be announced for 2016.

In an August 7, 2014 webinar, HHS gave issuers and TPAs an overview of the EDGE server implementation schedule and guidance on the key pre-registration tasks that must be completed prior to the start of the EDGE server registration process scheduled to begin on September 27, 2014.

HHS warned issuers and TPAs must be ready to start the EDGE registration process on September 27, 2014 in order to have sufficient time to set-up their servers and test their data submissions prior to the mid-December estimate calculations.

In the webinar, HHS outlined a series of key pre-registration activities that issuers and TPAs of self-insured health plans impacted by the new requirements need to complete between now and September 26, 2014, in order to prepare for EDGE implementation.

Review the pre-registration checklist, timeline and other information shared by CMS in the 90-minute presentation here.

For Advice, Training & Other Resources

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Posted by Cynthia Marcotte Stamer

Review & Update HR & Benefit Practices For DOL Proposed Change In FMLA Regs, Other Rules Treating Some Same-Sex Couples As Spouses

July 8, 2014

August 11, 2014 is the deadline for employers and other interested individuals to comment on the U.S. Department of Labor’s Wage and Hour Division (DOL) June 27, 2014 Notice of Proposed Rulemaking (NPRM), which would amend the definition of spouse under the current Family and Medical Leave Act of 1993 (FMLA) regulations in light of the United States Supreme Court’s decision in United States v. Windsor, which ruled unconstitutional section 3 of the Defense of Marriage Act (DOMA). The proposed change is one of a series of regulatory changes that the Obama Administration has proposed or adopted since the Windsor decision.

DOL intends that the NPRM will replace the current definition of “spouse” its current FMLA regulations so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

To accomplish this, the NPRM proposes to revise the current definition of spouse in the current FMLA regulations to define spouse as follows: Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Among other things, this change will:

Replace the current “state of residence” rule with a rule that determines spousal status based on where the marriage was entered into (sometimes referred to as “place of celebration”) rule for determining marital status;
Revise the definition of spouse expressly to reference same-sex marriages in addition to common law marriages, and to encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The expanded definition of spouse will broaden the range of couples that employers and plans may be required to treat as spouses for purposes of the FMLA. This expansion also may result in the extension of rights with respect to parents or children of a same-sex partner for certain employment or employee benefit purposes. While the historical determination of parental relationships under the FMLA regulations based on a functional, rather than legalistic, test means that the proposed change will likely have less significance in this regard, employers and plans still should evaluate the potential implications of the expanded definition of spouse on its responsibilities with respect to the employees, their same-sex partners and the parents and children of the same-sex partners.

Also, many employers and employee benefit plans may be concerned about proposed language in the NPRM and other regulations requiring employers to decide if a marriage not valid in the United States could have been valid if performed within the United States. Likewise, as the number of states where same-sex partners can qualify as spouses continues to evolve as courts and legislatures act to require recognition of these relationships, many employers and plans may feel legitimate concerns about the operational demands of administering their human resources and employee benefit plans and policies with respect to individuals involved in same-sex relationships where the legal status of the relationship may evolve due to changes of law, creating responsibilities for the employer or plan with respect to relationships that it may not know exist or the status of which may change subsequent to a determination of marital status or other relevant decision. Employers and employee benefit plans should consider adopting practices to address these challenges to minimize the risk of incurring liability as a result of an oversight resulting from evolving status.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising employers, health plan and other employee benefit, insurance, financial services, health and other business clients about these and other matters. As a part of this involvement, Ms. Stamer has extensive experience advising employers, employee benefit plans, insurers, health care providers and others about the implications of DOMA and other rules impacting the identification of spouses and other family status protections under the FMLA and other Federal and state employment, tax, health care and other laws. She publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

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. ©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

Comments Off on Review & Update HR & Benefit Practices For DOL Proposed Change In FMLA Regs, Other Rules Treating Some Same-Sex Couples As Spouses | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: employment law, HIPAA, Retaliation, Whistleblower | Permalink
Posted by Cynthia Marcotte Stamer

Employee & Other Whistleblower Complaints Common Source of HIPAA Privacy & Other Complaints

July 7, 2014

Employer and other health plan sponsors, administrators, insurers and their business associates should heed both the lesson about properly protecting health plan documents with protected health information and the more subtle lesson about the role of employees and other whistleblowers in bringing these violations to the attention of regulators contained in the latest Health Insurance Portability & Accountability Act (HIPAA) resolution agreement as well as act to manage their potential employment related liability to workforce members reporting these violations

HIPAA’s Privacy, Security and Breach Notification Rules generally prohibit health plans, health care providers, health plans (Covered Entities) and their business associates from creating, using, accessing or disclosing protected health information except as allowed by HIPAA. In addition, HIPAA requires covered entities both to meet detailed criteria for protecting electronic protected health information and also to take reasonable steps to protect all protected health information, as well as meet other business associate, breach notification, and individual rights requirements.

Parkview Resolution Agreement

Late last month, the Department of Health & Human Services Office of Civil Rights (HHS) announced that complaints of a retiring physician over the mishandling of her patient records by Parkview Health System, Inc. (Parkview) prompted the investigation that lead Parkview to agree to pay $800,000 to settle charges that it violated HIPAA’s Privacy Rule.

The resolution agreement settles charges lodged by HHS based on an OCR investigation into the retiring physician’s allegations that Parkview violated the HIPAA Privacy Rule by failing to properly safeguard the records when it returned them to the physician following her retirement.

As a covered entity under the HIPAA Privacy Rule, HIPAA requires that Parkview appropriately and reasonably safeguard all protected health information in its possession, from acquisition to disposition.

In an investigation prompted by the physician’s complaint, OCR found that Parkview breached this responsibility in its handling of certain physician patient records in helping the physician to transition to retirement.

According to OCR, in September 2008, Parkview took custody of medical records of approximately 5,000 to 8,000 patients while assisting the retiring physician to transition her patients to new providers, and while considering the possibility of purchasing some of the physician’s practice.

Subsequently on June 4, 2009, Parkview employees, with notice that the physician was not at home, left 71 cardboard boxes of these medical records unattended and accessible to unauthorized persons on the driveway of the physician’s home, within 20 feet of the public road and a short distance away from a heavily trafficked public shopping venue. OCR concluded this conduct violated the Privacy Rule.

To settle OCR’s charges that these actions violated HIPAA, OCR has agreed to pay the $800,000 resolution amount and to adopt and implement a corrective action plan requiring Parkview to revise their policies and procedures, train staff, and provide an implementation report to OCR.

HIPAA Violations Carry Significant Liability

As demonstrated by the Parkview resolution agreement, violation of HIPAA can carry significant civil and potentially even criminal liability. The criminal provisions of HIPAA as well as the express terms of the Privacy Rules require that covered entities and their business associates adopt and administer specific compliance programs and practices to provide to compliance with HIPAA and HIPAA’s breach notification rules and the Privacy Regulations may require self-reporting of violations when and if violations occur. Since HIPAA includes potential criminal liability, violations of its provisions can trigger organizational liability for covered entities and their business associates. Consequently, HIPAA compliance also generally should be part of the Federal Sentencing Guideline Compliance Program of every covered entity and business associate.

The HITECH Act tightened certain rules applicable to the use, access or disclosure of protected health information by covered entities and their business associates. In addition, the HITECH Act added breach notification rules, extended direct responsibility for compliance with HIPAA to business associates, increased penalties for noncompliance with HIPAA and made other refinements to HIPAA’s medical privacy rules and made certain other changes. Furthermore, enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.

With OCR stepping up both audits and enforcement and penalties for violations higher than ever since the HITECH Act amended HIPAA, Covered Entities and business associates should act quickly to review and update their policies, practices and training to implement any adjustments needed to maintain compliance and manage other risks under these ever-evolving HIPAA standards.

When conducting these efforts, Covered Entities and business associates not only carefully watch for and react promptly to new OCR guidance and enforcement actions, but also document their commitment and ongoing compliance and risk management activities to help support their ability to show their organization maintains the necessary “culture of compliance” commitment needed to mitigate risks in the event of a breach or other HIPAA violation and take well-documented, reasonable steps to encourage their business associates to do the same. When carrying out these activities, most covered entities and business associates also will want to take steps to monitor potential responsibilities and exposures under other federal and state laws like the privacy and data security requirements that often apply to personal financial information, trade secrets or other sensitive data under applicable federal and state laws and judicial precedent.

A series of supplemental guidance issued by the Department of Health & Human Services Office of Civil Rights (OCR) in recent weeks is giving health care providers, health plans, health care clearinghouses (Covered Entities) and their business associates even more to do in reviewing and updating their policies, practices and training for handing protected health information (PHI) beyond bringing their policies and practices into line with OCR’s restatement and update to the Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules Under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule (Omnibus Final Rule) OCR published January 25, 2013.

Covered Entities generally have been required to comply with most requirements the Omnibus Final Rule’s restated regulations restating OCR’s regulations implementing the Health Insurance Portability & Accountability Act (HIPAA) Privacy, Security and Breach Notification Rules to reflect HIPAA amendments enacted by the Health Information Technology for Economic and Clinical Health (HITECH) Act since the Omnibus Final Rule took effect on March 26, 2013 and to have updated business associate agreements in place since September 23, 2013. Meanwhile, the Omnibus Final Rule generally has required business associates have updated business associate agreements in place and otherwise to have come into compliance with all of the applicable requirements of the Omnibus Final Rule since September 23, 2013. Although these deadlines are long past, many Covered Entities and business associates have yet to complete the policy, process and training updates required to comply with the rule changes implemented in the Omnibus Final Rule.

Even if a Covered Entity or business associate completed the updates required to comply with the Omnibus Final Rule, however, recent supplemental guidance published by OCR means that most organizations now have even more work to do on HIPAA compliance. This includes the following supplemental guidance on its interpretation and enforcement of HIPAA against Covered Entities and business associates published by OCR since January 1, 2014 alone:

HIPAA Privacy Rule and Sharing Information Related to Mental Health published on
Spanish Language Model Notices of Privacy Practices published on 2/13/14
CLIA Program and HIPAA Privacy Rule; Patients’ Access to Test Reports published on 2/3/14; and
Proposed Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS) published on 1/7/14.

Beyond this 2014 guidance, Covered Entities and their business associates also should look at enforcement actions and data as well as other guidance OCR issued during 2013 after publishing the Omnibus Final Rule such as:

Watch & Manage Whistleblower Liability From HIPAA Violations & Compliance

Beyond illustrating the potential HIPAA-associated penalties that can result from failing to comply with HIPAA, the Parkview resolution agreement also illustrates the risks that current or former workforce members and others acting as whistleblowers play in helping OCR to identify HIPAA violations. HIPAA and most other laws prohibited covered entities from forbidding or retaliating against a person for objecting to or reporting the concern and offer whistleblowers potential participation in the reporting and prosecution of violations. Beyond these specific federal HIPAA protections, state courts often recognize firing or otherwise retaliating against workforce members or others for exercising rights protected by HIPAA or other federal anti-retaliation statutes as a basis for a state whistleblower or other retaliatory discharge claim. See, e.g. Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009). See also Court Recognizes Retaliation For Filing HIPAA Privacy Complaint As Basis For Texas Whistleblower Claim. With retaliation and other whistleblower complaints becoming increasingly common and judgments from these claims rising, covered entities and their business associates need to include appropriate employment liability risk management processes and procedures in their HIPAA compliance processes and coordinate carefully with their human resources team and qualified employment counsel to manage the employment liability related risks associated with investigations and discipline activities under HIPAA. Concurrently, Privacy Officers also should ensure that their organization’s human resources team understands the HIPAA rules and spot and properly refers to the privacy officer for investigation statements or other activities that may indicate that a HIPAA compliance or retaliation concern needs investigation or redress to avoid missing potential exposures hidden in the human resources processes that could reflect a practice of tolerance or retaliation unacceptable to OCR.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance often appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on Employee & Other Whistleblower Complaints Common Source of HIPAA Privacy & Other Complaints | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: employment law, HIPAA, Retaliation, Whistleblower | Permalink
Posted by Cynthia Marcotte Stamer

Consider Fiduciary & Other Risk Management When Planning For ACA Transitional Reinsurance Costs, Other Plan Design Changes

July 7, 2014

Employer and other plan sponsors should start working now with their insurers, administrators and advisors to understand the implications of and their options for addressing the “Transitional Reinsurance Program” and other new Patient Protection & Affordable Care Act (ACA)-associated cost and plan design changes so that they are prepared to finalize and implement their health plan design, contracts and arrangements in time to meet the accelerated deadlines for notifying participants of plan changes and otherwise implement their plan changes for the upcoming plan year.

The impending imposition of Transitional Reinsurance Program assessments are only one of a myriad of new and pre-existing federal health plan rules and associated market changes impacting the design of employer and union-sponsored health plans. Since ACA now also requires 60 days advance written notice of material health plan changes, . When making these decisions, employer and other health plan sponsors and their advisors, administrators and insurers should not only focus on the technically new mandates but also the allocation of fiduciary and other responsibilities, liabilities and other plan and services agreements terms. Plan sponsors and their fiduciaries historically have underappreciated the significance of these allocations or presumed that their vendor contracts allocate responsibility to the service providers and vendors to match the sales pitch. Always rarely the case, the changes in the marketplace and the law make it even more likely that sponsoring employers and their leaders of even plans that carefully reviewed and negotiated these responsibilities in their past contracts need to carefully look at these plan and contractual terms carefully.

The Transitional Reinsurance Program is one of a series of new ACA-imposed assessments that can impact the plan design and costs. Proper understanding of these rules is critical for plan sponsors and their fiduciaries to ensure that they don’t unintentionally assume significantly greater liability for their self-insured health plans in an attempt to design around a relatively small by comparison ACA assessment.

Section 1341 of the Patient Protection & Affordable Care Act (ACA) requires the establishment of the reinsurance program to provide for stabilization of funding for exchanges. Funding for the costs of the program is accomplished through amounts assessed upon insurers and self-insured plan third party administrators. ACA § 1341 accomplishes this by providing for:

The establishment for each State of a transitional reinsurance program stabilize premiums for coverage in the individual market from 2014 through 2016;
Requiring all health insurance issuers and third party administrators on behalf of self-insured group health plans, to pay contributions to support reinsurance payments that cover high-cost individuals in non-grandfathered plans in the individual market.

Registration is now open for a series of webinars that the Department of Health & Human Services will host on “The Transitional Reinsurance Program: Contributing Entities and Counting Methods” on July 14, July 18 and July 23, 2014 from 2:00 p.m. – 3:30 p.m. EST. The upcoming HHS webinars will cover the same information. They will focus on reinsurance contributions including who is a contributing entity and how a contributing entity can calculate its annual enrollment count to determine reinsurance contribution amounts. The intended audience for this webinar is health insurance issuers, self-insured group health plans, third party administrators (TPAs) and administrative services-only (ASO) contractors. To register for the HHS webinar and to obtain additional information see here.

Understanding how the Transitional Reinsurance Program assessments will be calculated is one of many critical steps in making plan design changes. When considering whether to take advantage of options for minimizing these assessments, however, employer, union and other plan sponsors need to consider whether the liability and other consequences of meeting requirements for avoidance of the assessments is warranted by the anticipated savings. With superficially it might seem desirable to avoid the payment of a few dollars per covered lives associated with the assessment, employers and other sponsoring organizations and the officers or other leadership employees involved in plan design or administration should critically review the effect of meeting these requirements specifically, as well as their proposed vendor contracts and associated plan documents and communications on their personal and organizations’ fiduciary and other liabilities. To the extent that existing or expanded fiduciary liability cannot be avoided, it will be critical that the sponsor and its leadership ensure that proper steps are taken to select, credential, bond, and appoint the persons who will be or help carry out fiduciary or other plan-related responsibilities. Additionally, most plan sponsors will want to consider exploring the availability of fiduciary liability insurance coverage to help mitigate the potential liability risks associated with plan sponsorship.

For Advice, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The author of the “Managed Care Contracting Guide” and a multitude of other highly-regarded publications on health plan and other fiduciary liability risk management, Ms. Stamer has advised plan sponsors, administrators, insurers and others about these and other health plan liabilities and their risk management throughout her more than 25 year career. You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to ask about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

Comments Off on Consider Fiduciary & Other Risk Management When Planning For ACA Transitional Reinsurance Costs, Other Plan Design Changes | Corporate Compliance, Data Security, Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: ACA, Insurers, Reinsurance Program, self-insured health plans, Transitional Reinsurance Program | Permalink
Posted by Cynthia Marcotte Stamer

HHS Claims Average $69/Month Cost for Subsidized Coverage Shows ACA Success Challenged

June 18, 2014

The Department of Health & Human Services (HHS) is touting a new report available here released today that it says people who qualified for tax credits to buy health insurance coverage through the health insurance exchange who selected silver plans, the most popular plan type in the federal Marketplace, paid an average premium of $69 per month. In the federal Marketplace, 69 percent of enrollees who selected Marketplace plans with tax credits had premiums of $100 a month or less, and 46 percent of $50 a month or less after tax credits. The balance of the cost of the coverage is covered via subsidies. Other sources, however, say the data in the report raises concerns about the overall cost of the health care reform law and its impact on the total cost of coverage.

HHS says the report also looks at competition and choice nationwide among health insurance plans in 2013-2014. HHS claims that the report shows most individuals shopping in the Marketplace had a wide range of health plans from which to choose. On average, consumers could choose from five health insurers and 47 Marketplace plans. An increase of one issuer in a rating area is associated with 4 percent decline in the second-lowest cost silver plan premium, on average.

While the HHS report by focusing on what subsidized individuals pay out of pocket spins the data to give the impression that the health care reform law is bringing down health care costs as promised, other sources say the data in the Report raises serious concerns about the overall cost of the health care reform law and the total cost of coverage. While acknowledging that “the generous subsidies” helped consumers receiving subsidies, the Los Angeles Times reports these subsidies coupled with the massive enrollment by individuals qualifying for subsidies raise budgetary concerns. According to the Los Angeles Times article, the reports shows the federal government is on track to spend at least $11 billion on subsidies for consumers who bought health plans on marketplaces run by the federal government, even accounting for the fact that many consumers signed up for coverage in late March and will only receive subsidies for part of the year. However, this total does not count the additional cost of providing coverage to the 1/3 of the 8 million new people who signed up for coverage who bought coverage in states that ran their own marketplaces, including California, Connecticut, Maryland and New York. While Federal officials said subsidy data for these consumers were not available, the Los Angeles Times estimated that if these state consumers received roughly comparable government assistance for their insurance premiums, the total cost of subsidies could top $16.5 billion this year, resulting in budgetary costs “far higher” than the $10 million budgetary cost that the Congressional Budget Office projected subsidies would cost U.S. taxpayers in 2014. See Obamacare subsidies push cost of health law above projections.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on HHS Claims Average $69/Month Cost for Subsidized Coverage Shows ACA Success Challenged | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Breach Notification, Health Care, Health Care Provider, Health Plan, HIPAA, HITECH, Medical Privacy | Permalink
Posted by Cynthia Marcotte Stamer

HIPAA Compliance & Breach Data Shares Helpful Lessons For Health Plans, Providers and Business Associates

June 11, 2014

Health care providers, health plans and insurers, health care clearinghouses (collectively “Covered Entities”), their business associates, and others concerned about medical privacy regulations or protections should check out two new reports to Congress about breach notifications reported and other compliance data under the Health Insurance Portability & Accountability Act (HIPAA) by the U.S. Department of Health and Human Services, Office for Civil Rights (OCR). Reviewing this data can help Covered Entities and their business associates identify potential areas of exposures and enforcement that can be helpful to minimize their HIPAA liability as well as to expect OCR enforcement and audit inquiries. Smart covered entities and business associates will include review of these and other reports about compliance and enforcement by OCR and assessment of their processes against this information as a part of their HIPAA compliance and risk management practices.

Required by the Health Information Technology for Economic and Clinical Health (HITECH) Act, the two new reports discuss various details about HIPAA compliance for calendar years 2011 and 2012. They include the following:

Report to Congress on Breach Notifications, discussing the breach notification requirements and reports OCR received as a result of these breach notification requirements; and
Report to Congress on Compliance with the HIPAA Privacy and Security Rules, summarizing complaints received by OCR of alleged violations of the provisions of Subtitle D of the HITECH Act, as well as of the HIPAA Privacy and Security Rules at 45 CFR Parts 160 and 164 .
Covered entities and their business associates should review the finding reported as part of their compliance practices. Others concerned about medical or other privacy or data security regulations or events also may find the information in the reports of interest.

Under HIPAA, covered entities generally are prohibited from using, accessing or disclosing protected health information about individuals except as specifically allowed by HIPAA, In addition, HIPAA also requires Covered Entities to establish safeguards to protect protected health information against improper access, use or destruction, to afford certain rights to individuals who are the subjects of protected information, to obtain certain written assurances from service providers who are business associates before allowing those service providers to use, access or disclose protected health information when carrying out covered functions for the Covered Entity, and meet other requirements.

Enforcement of HIPAA and the resulting penalties have increased since the HITECH Act took effect.

HIPAA Privacy Rule and Sharing Information Related to Mental Health published on
Spanish Language Model Notices of Privacy Practices published on 2/13/14
CLIA Program and HIPAA Privacy Rule; Patients’ Access to Test Reports published on 2/3/14; and
Proposed Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS) published on 1/7/14.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on HIPAA Compliance & Breach Data Shares Helpful Lessons For Health Plans, Providers and Business Associates | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Breach Notification, Health Care, Health Care Provider, Health Plan, HIPAA, HITECH, Medical Privacy | Permalink
Posted by Cynthia Marcotte Stamer

Review & Update Health Plan Notices, Language & Process For New Guidance On COBRA, Other Key Health Plan Rules

June 2, 2014

Add reviewing and updating your plan language, notices and processes for administering the coverage continuation requirements to the ever-growing list of items that employers and other group health plan sponsors, insurers, administrators and fiduciaries need to handle this year.

The most recently emerging guidance published by federal regulators to implement the Patient Protection & Affordability Act (ACA) and other health care reforms is a package of new guidance on COBRA and its interface with COBRA published in early May. This guidance includes a new HHS Bulletin Allowing COBRA Qualified Beneficiaries to Enroll in the Health Insurance Marketplace, as well as a series of updated model COBRA and CHIP Notices and related documents.

The HHS Bulletin on COBRA allows individuals who previously elected COBRA rather than enrolling in coverage through one of the new health insurance exchanges created under ACA a special extended enrollment opportunity to enroll in coverage under these exchanges. Many employers and health plans may want to communicate this new option to help minimize their COBRA exposures.

Beyond the extended exchange enrollment period for COBRA enrolled or eligible persons, the new guidance also may merit updates and changes to group health plan’s existing COBRA plan language, notices and election forms and procedures. Labor Department guidance several years ago significantly expanded the number of notifications required under COBRA as well as the required content. In connection with that guidance, the Labor Department published various model notices and other materials. As part of new guidance published in May, 2014, the Labor Department has revised and published updated versions of many of these model documents. The updated materials include:

Updated COBRA Model Notice
Updated COBRA Model General Notice, available at http://www.dol.gov/ebsa/modelgeneralnotice.doc
Updated COBRA Model Election Notice, available at http://www.dol.gov/ebsa/modelelectionnotice.doc
Updated CHIP Notice, available at http://www.dol.gov/ebsa/chipmodelnotice.doc
Notice of Proposed Rulemaking, available at http://www.dol.gov/ebsa/pdf/cobranprm.pdf

In addition to the updated COBRA guidance, employers, health plans and their insurers, administrators and fiduciaries also will want to review and update their plan language, processes, budgets, notices and other materials in response to updated guidance in Affordable Care Act Implementation FAQs Part XIX on Department of Labor model notices, limitations on cost-sharing, coverage of preventive services, health flexible spending account (FSA) carryover and excepted benefits, and the Summary of Benefits and Coverage requirements of PHS Act §2715. Employers and others involved in the design or administration of group health plans also will want to review this new guidance as part of their continuing health plan compliance, cost forecasting and planning efforts.

Catch Up On Latest, Get Practical Health Plan Insights At June 17 Texas CEO Briefing

Texas CEO Magazine invites Solutions Law Press Readers to catch up on new developments and strategies to help employers prepare for and cope with the ever-evolving stream of health plan developments enacted under the Patient Protection & Affordable Care Act by participating in a practical briefing on:

Tuesday, June 17

7:30 – 9:00 a.m.

Park City Club

5956 Sherry Lane, Dallas

Two of Texas CEO’s “Top 10 Most Read” articles in 2013 were authored by Dallas attorney and benefit specialist Cynthia Stamer who will anchor a panel of benefit experts that will explore new developments and their practical implications on:

Benefit Plan Design
Workforce Classification
Data Collection
Cost Projections
Private Exchanges
New Reporting Requirements (IRC 6055 & 6056)
Noncompliance Penalties
Avoiding the Tax
The New Care Delivery Dynamic

Featured Speakers include Cynthia Stamer, Managing Partner, Solutions Lawyer Publisher and Author, Eric Bassett, Senior Partner & Central Market Leader, Mercer Health & Benefits Consulting, Scott Gibbs, Senior Vice President, McGriff, Seibels & Williams, Inc., and Becky Parker, Health Reform Director, MHBT Inc.

Cynthia is a Dallas-based attorney who has spent more than 25 years helping private and public employers and health and employee benefit planners develop, implement, administer and defend creative, legally compliant and operationally effective health plans and policies.

Cynthia’s Texas CEO Magazine article, “Benefit Plan Triage: 12 STEPS EVERY EMPLOYER WITH A HEALTH PLAN SHOULD DO NOW,” was one of the Top 10 most-read articles of 2012. And in 2013, “Getting Ready for ACA Reform: 13 Steps to Take Now,” and “Affordable Care Act Update,” were both Top 10 most read articles.

Cynthia, among other things, is:

Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group
Immediate Past Chair of the ABA’s RPTE Employee Benefit & Compensation Committee
Marketing Committee Chair of the ABA Joint Committee on Employee Benefits
Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee
Current Vice-Chair of the Gulf States TEGE Council – Exempt Organizations Group

Eric works with clients in all areas of health care and group benefits with particular emphasis on health care strategies, delivery system capabilities, defined contribution, and consumerism. Eric began his 28-year health care career working for health care vendors. He has led cross-functional teams involved in the development of rural managed care strategies, integration of legacy networks and systems, physician profiling and implementation of open access networks and systems. Eric’s consulting experience includes:

Developing and managing health improvement, disease and demand management programs.
Chronic PCMH program design and development.
Working with management and labor during collective bargaining.
Integrating and consolidating benefit plans for mergers and acquisitions.
Working closely with corporate committees to facilitate decision-making.
Active and retiree exchange strategy and design.

Scott Gibbs works with large employers on long term strategies to make corporate benefit plans consistent with the company’s goals and budgets, working with both fully-insured and self-funded plans.

Scott is a member of:

Society for Human Resource Management (SHRM)
Texas Public Risk Management Association
International Foundation of Employee Benefit Plans
State and Local Government Benefit Association
Scott has an undergraduate degree from Baylor University and a Master’s in Health Care Administration from Trinity University.

Becky directs all corporate strategy and communication on the Affordable Care Act for MHBT and its clients. She has worked as an employee benefits advisor since 1992 and was one of the first employee benefits professionals to have earned a Certification in Health Care Reform Studies from The American College.

Becky is an active member of the Austin Association of Health Underwriters where she was president in 2003 and also served on the Texas Association of Health Underwriters board as their liaison to the Texas Department of Insurance and was honored nationally for her work.

Becky is an advocate for employee benefits in the legislative arena regularly testifying at the Texas State Capitol and engaging our federal elected officials on insurance related matters. Becky has even advised Texas Congressmen on the employer aspects of the Affordable Care Act.

Becky holds a Bachelor of Arts degree from The University of Texas at Austin.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

For the past two years, Ms. Stamer has served as the scribe for the ABA Joint Committee on Employee Benefits agency meeting with OCR. Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the second year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on Review & Update Health Plan Notices, Language & Process For New Guidance On COBRA, Other Key Health Plan Rules | Corporate Compliance, Data Security, Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Affordable Care Act, business, COBRA, Employers, Health Care Reform, Health Plans, preventive care benefits | Permalink
Posted by Cynthia Marcotte Stamer

6/17 Workshop Helps Businesses Get Ready for Latest Affordable Care Act Rollout

May 31, 2014

Tuesday, June 17

7:30 – 9:00 a.m.

Park City Club

5956 Sherry Lane, Dallas

The Affordable Care Act continues to hit the business world with successive waves of reform. To make sure your company is ready, we’ve assembled a panel of experts to update you about the current and impending legal terrain and share their benefit plan design and compliance tips to help your business cope with these changes.

Two of Texas CEO’s “Top 10 Most Read” articles in 2013 were authored by Dallas attorney and benefit specialist Cynthia Stamer who will anchor our panel of benefit experts as we take you through:

Benefit Plan Design
Workforce Classification
Data Collection
Cost Projections
Private Exchanges
New Reporting Requirements (IRC 6055 & 6056)
Noncompliance Penalties
Avoiding the Tax
The New Care Delivery Dynamic

Featured Speakers Include:

Cynthia Stamer, Managing Partner, Solutions Lawyer

Ms. Stamer is:

Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group
Immediate Past Chair of the ABA’s RPTE Employee Benefit & Compensation Committee
Marketing Committee Chair of the ABA Joint Committee on Employee Benefits
Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee
Current Vice-Chair of the Gulf States TEGE Council – Exempt Organizations Group

Eric Bassett, Senior Partner & Central Market Leader, Mercer Health & Benefits Consulting

Developing and managing health improvement, disease and demand management programs.
Chronic PCMH program design and development.
Working with management and labor during collective bargaining.
Integrating and consolidating benefit plans for mergers and acquisitions.
Working closely with corporate committees to facilitate decision-making.
Active and retiree exchange strategy and design.

Scott Gibbs, Senior Vice President, McGriff, Seibels & Williams, Inc.

Scott is a member of:

Society for Human Resource Management (SHRM)
Texas Public Risk Management Association
International Foundation of Employee Benefit Plans
State and Local Government Benefit Association
Scott has an undergraduate degree from Baylor University and a Master’s in Health Care Administration from Trinity University.

Becky Parker, Health Reform Director, MHBT Inc.

Becky directs all corporate strategy and communication pertaining to the Affordable Care Act for MHBT and its clients. She has worked as an employee benefits advisor since 1992 and was one of the first employee benefits professionals to have earned a Certification in Health Care Reform Studies from The American College.

Becky holds a Bachelor of Arts degree from The University of Texas at Austin.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

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Posted by Cynthia Marcotte Stamer

Post-Windsor Same-Sex Participant Guidance May Require Mid-Year Plan Amendments

May 15, 2014

Employers and fiduciaries of 401(k) plans should take note of the potential need to adopt a mid-year amendment to their plans to comply with new guidance of the Internal Revenue Service (IRS) on the need to timely amend their plans to comply with IRS recent guidance on when their plans must afford same-sex partners treatment equivalent to opposite-sex married couples issued in response to the Supreme Court’s decision striking down the Defense of Marriage Act (DOMA) in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 2013). At the same time, they also should review other recent guidance to determine if changes are required or otherwise desirable to their cafeteria, health and other welfare, and other employee benefit plans, family leave, and other human resources and employee benefit policies.

The IRS previously announced that a mid-year amendment to 401(k) plans to recognize same-sex partners as married couples for certain plan purposes might be required in Notice 2014-19. This announcement has presented some confusion for some sponsors of safe harbor 401(k) plans as Treasury Regulation § 1.401(k)-3(e)(1) generally requires that a Section 401(k) safe harbor plan be adopted before the beginning of the plan year and maintained throughout a full 12-month plan year, however, except as otherwise provided in § 1.401(k)-3(g) (on the reduction or suspension of safe harbor contributions) or in guidance of general applicability published in the Internal Revenue Bulletin. To resolve these questions, the IRS announced today (May 15, 2014) released an advance copy of Notice 2014-37, which is scheduled for official publication in Internal Revenue Bulletin 2014-23 on June 2, 2014. Notice 2014-37 will provide that the adoption of a mid-year amendment to a 401(k) safe harbor plan that will take effect during the plan year (“mid-year amendment”) will not disqualify the plan.

In light of this guidance, 401(k) sponsors, including those sponsoring 401(k) safe harbor plans, should ensure that their plans are timely amended to comply with the post-Windsor rules.

In addition to amending their 401(k) plans, employers also should review other emerging post-Windsor guidance impacting other employment and employee benefit practices and update their policies and practices as needed to comply with emerging guidance. For instance, the IRS also recently has published guidance s rules about health savings accounts (HSAs) after the Windsor decision.

Before the Windsor decision declared DOMA unconstitutional, Internal Revenue Service (IRS) guidance prohibited cafeteria plans, including HSAs and FSAs from treating same-sex partners as married based on DOMA’s restriction of the definition for federal tax and other federal law purposes to only a legal union between one man and one woman and the definition of “spouse” only to a person of the opposite sex who is a husband or wife. As a result, IRS pre-Winsor guidance prohibited HSAs, FSAs and other cafeteria plans from allowing employees to choose coverage of same-sex spouses on a pre-tax basis under a cafeteria plan unless the spouse otherwise qualified as a tax dependent of the employee.

In Windsor, the Supreme Court struck down DOMA’s prohibition of the recognition of same-sex couples as married or spouses as an unconstitutional violation of the Fifth Amendment to the United States Constitution.

In response to the Windsor ruling of DOMA unconstitutional, the IRS initially updated its guidance to reflect the Windsor ruling in Rev. Rul. 2013-17, which held:

For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex;
For Federal tax purposes, the IRS adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages;
For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships;
Rev. Rul. 2013-17 also stated that taxpayers could rely on this holding retroactively for purposes of filing original returns, amended returns, adjusted returns, or claims for credit or refund employment tax and income tax with respectto employer-provided health coverage benefits or fringe benefits that the employer provided and are excludable from income under sections 106, 117(d), 119, 129, or 132 based on an individual’s marital status; and
For purposes of the preceding sentence, if an employee made a pre-tax salary-reduction election for health coverage under a section 125 cafeteria plan sponsored by an employer and also elected to provide health coverage for a same-sex spouse on an after-tax basis under a group health plan sponsored by that employer, an affected taxpayer may treat the amounts that were paid by the employee for the coverage of the same-sex spouse on an after-tax basis as pre-tax salary reduction amounts.

Subsequently, the IRS also published special administrative procedures for employers to use to make adjustments or claims for refund or credit of employment taxes paid with respect to the value of same-sex spousal benefits that are excludable from the income and wages of an employee under the Windsor decision, as interpreted by Rev. Rul. 2013-17.

Most recently regarding cafeteria plans, Notice 2014-01 discusses when plan sponsors may need to amend their cafeteria plan documents to allow mid-year election changes by same-sex spouses. It states that a cafeteria plan that does not contain written terms that allow changes of election upon change in legal marital status generally would need to be amended before a same-sex couple could be allowed to make an election change. However, where the cafeteria plan already contains written terms permitting a change in election upon a change in legal marital status, Notice 2014-01 states a plan amendment generally is not required to allow an employee who acquires a same-sex spouse to make a mid-year election change in response to the acquisition of a same-sex spouse.

Beyond this plan amendment guidance, Notice 2014-01 also further clarifies the IRS’ previous post-Windsor guidance by answering various questions about the treatment of same-sex couples following Windsor for purposes of administering FSA-reimbursements, HSA limits and mid-year election changes.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others.

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Posted by Cynthia Marcotte Stamer

Encrypt Mobile Devices & Clean Up Management Documentation Key HIPAA Compliance Messages In New HIPAA Settlements

April 27, 2014

“Encrypt your laptops and other mobile devices” is only one of the key lessons leaders of health plans, health care providers, health care clearinghouses (“Covered Entities”) and their business associates should take away from the Department of Health and Human Services Office for Civil Rights (OCR)’s April 22 announcement that Concentra Health Services (Concentra) and QCA Health Plan, Inc. of Arkansas (QCA) collectively are paying $1,975,220 under separate Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rule resolution agreements resulting from thefts of unencrypted laptops. Along with the importance of encryption, however, these Resolution Agreements also contain equally significant, more broadly applicable lessons to Covered Entities, business associates and their leaders about some of the specific processes, actions and documentation that OCR them to implement and be prepared to defend the adequacy of their HIPAA “culture of compliance” if they file a breach report or otherwise face a HIPAA audit or investigation from OCR.

Consequently, while confirming the adequacy of their organization’s existing encryption of laptops and mobile devices, Covered Entities and their leaders should also consider using these and other Resolution Agreements as a road map for reviewing and tightening their management oversight and other HIPAA compliance documentation and practices generally.

Concentra Resolution Agreement

Under the Concentra Resolution Agreement, Concentra agrees to pay OCR a monetary settlement of $1,725,220 and adopt a corrective action plan to settle potential violations of the HIPAA Privacy and Security Rules and evidence their remediation of OCR’s findings.

OCR opened a compliance review of Concentra after receiving a breach report that an unencrypted laptop was stolen from its the Springfield Missouri Physical Therapy Center on November 30, 2011. OCR’s investigation concluded that Concentra previously had recognized in multiple risk analyses that a lack of encryption on its laptops, desktop computers, medical equipment, tablets and other devices containing electronic protected health information (ePHI) was a critical risk. While steps were taken to begin encryption, Concentra’s efforts were incomplete and inconsistent over time leaving patient PHI vulnerable throughout the organization. OCR’s investigation further found Concentra had insufficient security management processes in place to safeguard patient information.

In particular, the Resolution Agreement states that HHS’ investigation found that the following conduct occurred (Covered Conduct):

Concentra failed to adequately remediate and manage its identified lack of encryption or, alternatively, document why encryption was not reasonable and appropriate and implement an equivalent alternative measure to encryption, if reasonable and appropriate, from October 27, 2008, until June 22, 2012 (date on which a complete inventory assessment was completed and Concentra immediately took action to begin encrypting all unencrypted devices) (see 45 C.F.R. § 164.312(a)(2)(iv))

Concentra did not sufficiently implement policies and procedures to prevent, detect, contain, and correct security violations under the security management process standard when it failed to adequately execute risk management measures to reduce its identified lack of encryption to a reasonable and appropriate level from October 27, 2008, (date of Concentra’s last project report indicating that 434 out of 597 laptops were encrypted) until June 22, 2012 (date on which a complete inventory assessment was completed and Concentra immediately took action to begin encrypting all unencrypted devices) (see 45 C.F.R. § 164.308(a)(1)(i)). 3.

In the Resolution Agreement, Concentra has agreed to pay OCR $1,725,220 to settle potential violations and will adopt a corrective action plan to evidence their remediation of these findings.

QCA Resolution Agreement

QCA’s much smaller $250,000 monetary penalty under the QCA Resolution Agreement also resulted from a breach notification of the theft of an unencrypted laptop and also requires corrective actions in addition to a monetary settlement. OCR opened its investigation after QCA reported in February 2012 that an unencrypted laptop computer containing the ePHI of 148 individuals was stolen from a workforce member’s car. OCR’s investigation revealed that while QCA encrypted their devices following discovery of the breach, QCA failed to comply with multiple requirements of the HIPAA Privacy and Security Rules, beginning from the compliance date of the Security Rule in April 2005 and ending in June 2012.

To resolve OCR’s charges it violated HIPAA, QCA agreed to a $250,000 monetary settlement and is required to provide HHS with an updated risk analysis and corresponding risk management plan that includes specific security measures substantially similar to those imposed on the Concentra Resolution Agreement to reduce the risks to and vulnerabilities of its ePHI. QCA is also required to retrain its workforce and document its ongoing compliance efforts.

Corrective Action Plan Lessons For Other Covered Entities & Business Associates

Unquestionably, laptop and other mobile device encryption is a key take away of the two separate resolution agreements against Concentra and QCA. OCR Deputy Director of Health Information Privacy Susan McAndrew made this point clear in the announcement of the Concentra and QCA Resolution Agreements, stating “Covered entities and business associates must understand that mobile device security is their obligation,” and “Our message to these organizations is simple: encryption is your best defense against these incidents.”

As important as this encryption warning is, however, leaders of Covered Entities and business associates must not overlook the more subtle but equally important messages in these Resolution Agreements share about the management oversight and other specific actions, documentation and other evidence that OCR may expect their organizations and its leadership to produce if OCR investigates or audits its HIPAA compliance.

OCR officials have stated that Covered Entities and their business associates should use the corrective action plans in resolution agreements to help guide their own compliance efforts. While the message to encrypt mobile device is important, it is not the only lesson that leaders should learn. The Concentra and QCA Resolution Agreements, as well as their predecessors also contain detailed information about various other processes and procedures that OCR views as necessary or helpful to the compliance efforts of Covered Entities and their business associates. Privacy officers and other leaders of Covered Entities and business associates should avoid the mistake of allowing the Resolution Agreement’s clear messaging about mobile device encryption to lure them or their organization into overlooking broader and more generalized messages the corrective action plans included in the Concentra, QCA and other Resolution Agreements share about the compliance processes and analysis, management review and oversight, training and other compliance practices and documentation that OCR may expect their organizations to create and produce.

The requirement of officer attestation that his organization completed the detailed corrective actions required by OCR and that the reports submitted to OCR are accuratein the Concentra and QCA Resolution Agreements Corrective Action Plans, for instance, reflects OCR’s expectation that senior management take ownership of ensuring the adequacy of their organization’s HIPAA compliance. In this respect, leaders of Covered Entities and business associates particularly should note that both the Concentra and QCA Resolution Agreements, as well as the Skagit County Resolution Agreement announced in March, 2014 require specific attestations from an “officer” of the entity that the officer reviewed the reports, made reasonable inquiry regarding its content and believes that, upon such inquiry, the information is accurate and truthful. These attestation requirements, like those required by OCR in the Skagit County Resolution Agreement OCR announced in March send a clear message that OCR views leaders as responsible for taking appropriate steps to require and confirm adequate HIPAA compliance in the same manner as typically applies to other Federal Sentencing Guideline compliance efforts. See HIPAA Covered Entities Should Review & Correct HIPAA Policies In Response To New County Hospital Resolution Agreement, Other Developments. These attestation requirements send a strong message that OCR expects the leadership of Covered Entities, business associates to take ownership of and keep tabs on their organization’s HIPAA compliance. In light of this, leadership of all Covered Entities and their business associates should evaluate the adequacy of their current HIPAA management oversight and documentation in proving the “culture of compliance” expected by HIPAA.

Viewed from this perspective, the corrective action steps and reporting requirements imposed by the Concentra, QCA and other Resolution Agreements are valuable road maps to both privacy officers and other management of Covered Entities and business associates about the processes, steps and documentation that management should consider requiring as part of its direction and oversight of their organizations’ Privacy, Security and Breach Notification compliance.

In this respect, management should note that both Resolution Agreements require that Concentra and QCA conduct, document, and report to OCR on a series of specific steps toward compliance. In both cases, for instance, OCR requires Concentra and QCA among other things, to conduct a ‘thorough risk assessment’ of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of all ePHI, then develop and implement a ‘detailed risk management plan’ that addresses the identified compliance concerns, the plan and timeline for their redress and steps for monitoring and verifying those actions are taken.

From the Resolution Agreements’ discussion, leaders should expect that the documentation and evidence that OCR may require their organizations to produce will include:

A detailed risk management plan that documents and explains its strategy for implementing security measures sufficient to reduce the risks and vulnerabilities identified in the risk analysis to a reasonable and appropriate level based on the organization’s circumstances;
With the risk management plan, include material evidence of all implemented and all planned remediation actions associated with the risk management plan along with specific timelines for their expected completion and identify the compensating controls that will be in place in the interim to safeguard Concentra ePHI;
Requires for any changes to its information technology (IT) infrastructure, software or other components, an updated risk analysis in association with any changes or updates to its organizational IT infrastructure (security environment) that affect the risks and vulnerabilities to ePHI received or maintained by Concentra containing all of these elements;
Require that their team track and document the encryption status of mobile and other devices and PHI that both shows that the organization both requires and tracks compliance with requirements to encrypt devices containing ePHI and that the organization requires specific review and documentation that ePHI will not be used on computer or other devices that are unencrypted.
Not only that required workforce training is completed but also whether existing and future documentation requires and retains the documentation that would enable the organization to demonstrate to OCR that the leadership of the organization requires monitoring and documentation that all workforce members have completed the required training, the training materials used for the training, the topics covered, the length of the session(s), when training session(s) were held, and the attestations or other documentation from individual workforce members that the organization requires to verify participation, understanding and affirmation of the individual of the need to comply with HIPAA.

Accordingly, management of Covered Entities and business associates should consider verifying that these organizations have, or take the steps necessary, to be able to provide this documentation and other evidence.

The reporting requirements that OCR imposes under the Resolution Agreements also may be helpful to leaders of Covered Entities or their business associates about the importance of requiring periodic detailed and documented reporting from the Privacy Officer on their organization’s compliance with HIPAA, and some of the types of information that they should expect to receive in these reports. In this regard, leaders may wish to take note that the Resolution Agreements in Concentra, QCA, and Skagit each required that their organizations prepare and provide reports, accompanied by the required officer attestations containing among other things:

A summary of the organization’s security management process and the security measures taken during the Reporting Period, including, if applicable, any documentation of training related to those measures;
A summary of the organization’s encryption efforts taken during the Reporting Period; and
A summary of the organization’s security awareness training efforts taken during the Reporting Period.

In light of these requirements, leaders of Covered Entities or business associates also should consider establishing policies that both require periodic reporting to management and management review of reports on their organization’s ePHI and other Privacy and Security compliance that will produce documentation of similar periodic management oversight as an ongoing process within their organizations.

Since the Concentra and QCA Resolutions are only two of several existing Resolution Agreements, and likely will be supplemented by others in the future, management also should ensure that past and future Resolution Agreements as well as other guidance and developments under HIPAA are systematically reviewed and responded to in a similar, well documented manner.

Learn More At Upcoming Workshops and Teleconferences

Leaders, privacy officers, internet security officers, technology professionals and others concerned about HIPAA and other privacy and security management for Covered Entities, business associates and others can learn more about HIPAA Privacy, Security and Data Breach compliance and risk management by participating in one of the following upcoming HIPAA educational events that the author of this update, Cynthia Marcotte Stamer, will be a featured presenter:

HIPAA Compliance: Are You Ready If A Breach Occurs? Privacy, Security, HITECH, Record Retention Teleconference presented by the American Bar Association Joint Committee on Employee Benefits on April 29, 2014;and
ISSA-LA and HIMSS Southern California 2nd Annual Healthcare Privacy and Security Summit scheduled for May 15-16 at the Universal City Hilton, Universal City, California.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

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 about this communication click here. ©2014 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

Comments Off on Encrypt Mobile Devices & Clean Up Management Documentation Key HIPAA Compliance Messages In New HIPAA Settlements | Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance | Tagged: "Encrypt your laptops and other mobile devices" is only one of the key lessons leaders of health plans, 220 under separate Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rule resolution agreements resulting from thefts of unencrypted laptops. Along with the importance o, 975, actions and documentation that OCR them to implement and be prepared to defend the adequacy of their HIPAA "culture of compliance" if they file a breach report or otherwise face a HIPAA audit or inves, business associates and their leaders about some of the specific processes, Covered Entities, Health Care, health care clearinghouses ("Covered Entities") and their business associates should take away from the Department of Health and Human Services Office for Civil Rights (OCR)'s April 22 announcement th, health care providers, Health Plans, HIPAA OCR, however, Inc. of Arkansas (QCA) collectively are paying $1, more broadly applicable lessons to Covered Entities, PHI, Privacy, these Resolution Agreements also contain equally significant | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting

April 8, 2014

Health plans, their sponsoring employers and administrators face new challenges and responsibilities under a slew of regulations on the treatment of same-sex domestic partners issued by the Internal Revenue Service, Department of Labor and other federal government agencies since the Supreme Court ruled unconstitutional the Defense Against Marriage Act’s prohibition against the recognition of same-sex partnerships as marriage for purposes of federal law.

Attorney and industry thought leader Cynthia Marcotte Stamer will join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

The SPBA Spring Meeting scheduled to take place May 16-18 will cover a broad range of timely topics on health care reform and other issues and concerns for self-insured health plan administrators and their clients.

In addition to her April 17 DOMA presentation, Ms. Stamer also is scheduled to share her insights and experiences financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims.”

For additional details about the SPBA or its Spring Meeting, see www.spbatpa.org.

For More Information Or Assistance

If you need help labor and employment, health and other employee benefit, compensation, privacy and data other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience with health 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 run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer has more than 25 years experience advising these and other clients about these matters and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on health and other employee benefit, labor, employment and other human resources, worker classification, tax, internal controls, risk management and other legal and operational management concerns.

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, 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 who is published and speaks extensively on worker classification and related matters. She 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

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

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.

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. ©2014 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.

Comments Off on Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting | 105(h), Affordable Care Act, Claims Administration, COBRA, Corporate Compliance, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, FMLA, Health Plans, HIPAA, Human Resources, I-9, Immigration, Insurance, Internal Controls, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Uncategorized | Tagged: ACA, Bankruptcy, defense of marriage act, distressed plans, DOMA, Employee Benefits, Employers, expatriate plans, Fiduciary Responsibility, Health Plans, International, same-sex, tpa, Windsor | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks On “Action Steps When A Client Stops Funding Claims” at 2014 SPBA Spring Meeting

April 8, 2014

Health plans and their administrators face significant practical legal and operational challenges when the employer sponsoring the plan goes bankruptcy, has financial trouble or otherwise stops funding the plan.

Attorney, industry thought leader and Solutions Law Press, Inc. Publisher and Editor, Cynthia Marcotte Stamer will join a panel of distinguished attorneys discussing financial, ethical and legal concerns that third party administrators of self-insured employee benefit plans should consider when their client stops funding the plan due to illiquidity, bankruptcy or otherwise as a panelist on the April 18, 2014 panel on “Action Steps When a Client Stops Funding Claims” on Friday, April 18, 2014 at the Society of Professional Benefits Administrators (SPBA) Spring 2014 Meeting at the Capital Hilton in Washington, DC.

In addition to her April 18 presentation, Ms. Stamer also is scheduled to join officials from the Internal Revenue Service National Office in discussing “Handling Health Plan Spouse, Dependent & Other ‘Family’ Matters in Post-DOMA World” on Thursday, April 17, 2014.

For More Information Or Assistance

About Solutions Law Press

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

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.

Comments Off on Stamer Speaks On “Action Steps When A Client Stops Funding Claims” at 2014 SPBA Spring Meeting | 105(h), Affordable Care Act, Claims Administration, COBRA, Corporate Compliance, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, FMLA, Health Plans, HIPAA, Human Resources, I-9, Immigration, Insurance, Internal Controls, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Uncategorized | Tagged: ACA, Bankruptcy, distressed plans, Employee Benefits, Employers, expatriate plans, Fiduciary Responsibility, Health Plans, International | Permalink
Posted by Cynthia Marcotte Stamer

IRS Gives Ex Pat Plans Limited Exemption From ACA Reporting Rule

April 3, 2014

The Internal Revenue Service (IRS) is giving U.S. businesses with workers working oversees (expatriates) additional limited temporary relief from certain mandates of the Patient Protection and Affordable Care Act (ACA). While this relief will be welcome for many multinational employers, these employers and their health plans and insurers need to use caution not to overestimate this relief. Employers and administrators of health plans covering expatriates generally generally remain obligated by U.S. law to design and administer their group health plans to properly comply with applicable U.S. mandates and tax rules..

The temporary relief for employers and health plans covering expatriate announced by the IRS today (April 3, 2014) scheduled to be published in Internal Revenue Bulletin 2014-16 on April 14, 2014, Notice 2014-24, provides a temporary safe harbor for an entity that reports expatriate health insurance plans on its Supplemental Health Care Exhibit (SHCE). For the 2014 and 2015 fee years, Notice 2014-24 will allow such an entity to exclude 50% of its direct premiums written for expatriate plans in reporting total direct premiums written to the IRS for purposes of determining its ACA § 9010 Health Insurance Providers Fee.

This new guidance supplements guidance previously published guidance in“FAQS About Affordable Care Act Implementation (Part XIII)”(the “Expat FAQ”). The Expat FAQ states these health plans generally are not required to comply with the ACA requirements for pre-January 1, 2016 plan years, as long as they comply with the applicable federal health plan mandates of pre-Affordable Care Act version of Title XXVII of the Public Health Service (PHS) Act and other applicable law under ERISA and the Internal Revenue Code (Code) under temporary transitional relief announced in the Expat FAQ jointly announced by the Agencies of Labor, Health and Human Services (HHS), and the IRS (collectively, the Agencies) on March 8, 2013. The Expat FAQ makes clear that the Agencies generally view expatriate health plans and other health benefit coverage provided by businesses subject to U.S. law for employees working outside their home country generally are subject to the mandates of ACA, as well as other federal health plan mandates. However, ERISA section 4(b)(4) may exempt from ERISA coverage “plans maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.” Similar exemptions also may be available for certain provisions of the Code or ERISA for these extra-territorial plans for nonresident aliens. For instance, for purposes of the eligibility non-discrimination rule of Code section 105(h), the Code specifies that an employer can disregard employees who are nonresident aliens and who receive no earned income (within the meaning of section 911(d)92) from the employer which constitutes income from sources within the United States within the meaning of section 861(a)(3).

While the Agencies gather further information and analyze the potential challenges expatriate plans may face in complying with the Affordable Care Act, the Expat FAQ states that for plan years beginning on or before December 31, 2015, the Agencies will treat expatriate health plans as treating the requirements of subtitles A and C of Title I of the Affordable Care Act if the plan and issuer comply with the pre-Affordable Care Act version of Title XXVII of the PHS Act, section 715 of ERISA, and section 9815 of the Code and other applicable law under ERISA and the Code including, for example, the mental health parity provisions, the HIPAA nondiscrimination provisions, the ERISA section 503 requirements for claims procedures, and any reporting and disclosure obligations under ERISA Part 1.

The Expat FAQ also confirms that the Agencies will treat coverage provided under an expatriate group health plan as a form of minimum essential coverage under section 5000A of the Code. If an individual has minimum essential coverage, the individual will not be subject to the “Individual Mandate” tax. Additionally, an employee who is offered “minimum essential coverage” by his/her employer will not be eligible for a subsidy in the Exchange if the employer coverage is “affordable” and provides “minimum value.” This means the employer will not be subject to a potential penalty under the ACA “Employer Shared Responsibility” provisions of new Code section 4980H.

Employers also should be careful to ensure that the guidance applies to their program. Sponsors and insurers providing or administering health benefits with respect to employees working or living outside the United States are cautioned of the need to confirm that their program falls under the Expat FAQ’s definition of “expatriate health plan.” For purposes of this temporary transitional relief, the Expat FAQ defines an “expatriate health plan” as “an insured group health plan with respect to which enrollment is limited to primary insureds who reside outside of their home country for at least six months of the plan year and any covered dependents, and its associated group health insurance coverage.” The Expat FAQ confirms its definition of “expatriate health coverage” also applies for purposes of the Health Insurer Issuer Standards Related to Transitional Reinsurance Program of 45 CFR 153.400(a)(1)(iii) for plans with plan years ending on or before December 31, 2015.

This definition of expatriate health plan will not extend to all health coverage provided for employees of U.S. companies working outside the United States. Employers and administrators of self-insured health plans providing coverage for expatriate employees take note, however. Because this definition presently is limited to “insured group health plans,” it self-insured health coverage provided for expatriate employees presently do not qualify as expatriate health plans covered by the relief contained in the Expat FAQ. Likewise, the definition also does not apply to health coverage provided for employees working abroad for periods of less than six months. Sponsors, insurers and administrators of health plans providing coverage for employees of U.S. employer working outside their home countries that fall outside the Expat FAQ definition of an “expatriate health plan” should ensure that their programs timely comply with all applicable federal health plan mandates including ACA.

Review and Update Plans To Manage Risks & Improve Effectiveness

Businesses providing health coverage to workers working outside of the United States should review their policies for compliance with the applicable requirements of the Affordable Care Act, to the extent applicable taking into account the Expat FAQ, as well as otherwise applicable requirements of ERISA, the Code, the PHS Act and other relevant federal laws. When conducting this review, sponsors, administrators and insurers also should consider opportunities to manage risks, improve plan value and cost effectiveness and mitigate other legal or operational concerns.

Health coverage provided to employees of U.S. businesses working outside the United States typically are provided under policies, plans and programs pursuant to products or other arrangements that may not be designed, documented or administered to adequately comply with relevant federal health plan mandates. Beyond minimizing legal exposures that may result from overlooked compliance obligations, employer or other sponsors, administrators and insurers of these programs generally should familiarize themselves about the health care delivery systems, private and public health benefit programs, regulations and other relevant requirements and circumstances that may impact their business’ obligations to provide or contribute toward the cost of health care coverage, access to quality care by their employees and their families while working outside the United States or their home country, and legal and operational issues that may arise when employees are working oversees, transitioning between countries, have family members residing in different countries or other special circumstances.

The Expat FAQ is only one of a deluge of new guidance recently finalized or proposed by the Agencies. With the effective date of the 2014 Affordable Care Act reforms rapidly approaching, more guidance is impending. Stay tuned for additional updates about Affordable Care Act and other federal health plan rules and guidance.

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Comments Off on IRS Gives Ex Pat Plans Limited Exemption From ACA Reporting Rule | 105(h), Affordable Care Act, Claims Administration, COBRA, Corporate Compliance, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, FMLA, Health Plans, HIPAA, Human Resources, I-9, Immigration, Insurance, Internal Controls, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Uncategorized | Tagged: ACA, Employee Benefits, Employers, expatriate plans, Health Plans, International | Permalink
Posted by Cynthia Marcotte Stamer

PBGC Proposes Rules Allowing Lifetime Benefit Rollover Option For Defined Contribution Participant Account Balances

April 1, 2014

The Pension Benefit Guaranty Corporation (PBGC) is touting a proposal that would add the option for 401(k) and other defined contribution plan participants to elect at time of distribution to have the balance of their 401(k) plan account converted to traditional pensions.

Under proposed rules slated for publication in the April 2, 2014 Federal Register, the PBGC plans to define rules under which the defined contribution plans could offer employees with rollover options the opportunity to move their benefits from defined contribution plans to defined benefit plans and outline safeguards for benefits that are rolled over from defined contribution plans.

Under the new proposal, benefits earned from a rollover generally would not be affected by PBGC’s maximum guarantee limits. Currently the agency’s maximum guaranteed benefit for a 65-year-old retiree is almost $59,320 a year.

Also, rollover amounts generally would remain untouched by PBGC’s so-called five-year phase-in limits. Normally, benefit increases from changes to a plan in the five years before it ends are partially guaranteed. For instance, 20 percent of the increase is paid after one year, 40 percent after two years and so on. Under the new proposal, these restrictions generally would not apply

The PBGC proposal to allow defined contribution participants to convert their account balances into lifetime annuities at distribution reflects the general enthusiasm within the PBGC, the Employee Benefit Security Administration (EBSA) and other agencies for arrangements that annuitize defined contribution accounts that provides a guaranteed fixed income for the participant for the balance of his or her lifetime. In its April 1, 2014 announcement of impending publication of the proposed rule, the PBGC touts its proposal as making it “easier for participants in 401(k) plans to get higher returns and get lifetime income” by moving their funds into traditional pensions while removing “the fear that the amounts rolled over would suffer under guarantee limits should PBGC step in and pay benefits.”

“What we’re doing will hopefully give people an incentive to choose a savings option that they can’t outlive or outspend,” said PBGC Director Josh Gotbaum. “Annuities always offer greater retirement security.”

In the wake of the massive decline in retirement savings that came with scandals like Enron and Madoff and the economic downturn have fueled new support among the PBGC and other supporters of “lifetime income” arrangements, critics warn that the annuitizing an account to provide lifetime benefits in a low performing market is costly and cuts the recipient out of the opportunity to benefit if and when the market strengthens. They also warn that market downturns also can adversely affect the security of annuitized products. The notorious failures of the insurers providing “guaranteed investment income” in the 1980s led to the demise of GICs just as the real estate bust necessitated a government bailout to keep AIG and other insurers afloat. The PBGC and other advocates hope that their proposed standards for lifetime income accounts can produce the benefits of a lifetime income with little risk to the recipients.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on PBGC Proposes Rules Allowing Lifetime Benefit Rollover Option For Defined Contribution Participant Account Balances | Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance | Tagged: 401(k), annuities, defined contribution plan, GIC, Lifetime income, PBGC, Pensions, plan distributions, retirement, retirement income, retirement security | Permalink
Posted by Cynthia Marcotte Stamer

ONC HIPAA Security Risk Assessment Tool Intended To Help Covered Entities Assess Compliance

March 31, 2014

Health care providers, health plans, health care clearinghouses and their business associates Health Insurance Portability and Accountability Act (HIPAA) should check out the new Security Risk Assessment (SRA) Tool (Tool) application from the Office of the National Coordinator for Health IT (ONC). ONC says the Tool will help users take a self-directed tour of and assess compliance with the HIPAA Security Rule more understandable and security risk assessments easier. The Tool includes:

Context sections to help understand potential threats, vulnerabilities, and impacts
Examples of safeguards that could be instituted
Ability to export the report as an Excel or pdf document to share or analyze the information in a convenient format.

Download the Windows version of the tool at http://www.HealthIT.gov/security-risk-assessment or the iOS iPad version from the Apple App Store (search under “HHS SRA Tool”).

Public comments on the SRA Tool will be accepted at http://www.HealthIT.gov/security-risk-assessment until June 2. ONC says it will use comments to improve the SRA Tool in future update cycles.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on ONC HIPAA Security Risk Assessment Tool Intended To Help Covered Entities Assess Compliance | Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Covered Entities, Health Care, Health Plans, HIPAA OCR, PHI, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

HHS Extends Health Plan Certification of Compliance Comment Period

March 18, 2014

The Department of Health and Human Services (HHS) has extended the comment period for the proposed rule, “Administrative Simplification: Health Plan Certification of Compliance” to April 3, 2014 in hopes of receiving additional input from third party administrators (TPAs) and self-insured plans.

HHS is now accepting public comments on the proposed rule through April 3, 2014.

The Certification of Compliance for Health Plans proposed rule is different from previous Health Insurance Portability and Accountability Act (HIPAA) Administrative Simplification regulations because it affects more and different types of entities.

For example, many third party administrators, self-funded health plans, and group health plans that have not been impacted by previous HIPAA Administrative Simplification requirements will be affected by this rule, even if they do not directly conduct HIPAA covered transactions.

The proposed rule would require controlling health plans to submit documentation on or before December 31, 2015. It would also establish penalty fees for a controlling health plan that fails to comply with the Certification of Compliance requirements.

HHS says the goal of the extension of the comment period is to provide self-insured health plans and their TPAs time to understand and offer feedback on the business impacts of the Certification of Compliance proposed rule. HHS encourages these entities to submit feedback so that their comments and suggestions can be considered during the policy-making process.

The proposed rules will require self-insured health plans and their TPAs to incur financial and operational expense to implement the necessary technology, data collection and other arrangements to come into compliance with the proposed rules. To help minimize these burdens to the extent possible, these and other concerned parties should review the rules and share their concerns and input as soon as possible. Accordingly, self-insured health plans, their sponsors, TPAs and advisors should review the proposed rules and provide relevant input as soon as possible and no later than the extended April 3, 2014 due date.

For Representation, Training & Other Resources

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, 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 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights (OCR) for the past several years who has worked on medical and other privacy concerns throughout her career, she regularly designs and presents HIPAA and other risk management, compliance and other training for health plans, employers, health care providers, professional associations and others, defends covered entities and business associates against OCR, FTC and other privacy and data security investigations, serves as special counsel in litigation arising from these concerns and is the author of several highly regarded publications on HIPAA and other privacy and security concerns.

Ms. Stamer also regularly works with OCR, FTC, USSS, FBI and state and local law enforcement on privacy, data security, health care, benefits and insurance and other matters, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. For instance, Ms. Stamer for the third year will serve as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here.

Comments Off on HHS Extends Health Plan Certification of Compliance Comment Period | Employers, ERISA, Health Plans, HIPAA, Human Resources, Insurance | Tagged: Covered Entities, Health Care, Health Plans, HIPAA OCR, PHI, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

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