Final Rules Make Direct Access To Data By All But Most Sophisticated Impossible

The Centers For Medicare & Medicaid Services (“CMS”) says disclosures of certain Medicare provider and supplier claims performance data scheduled to begin in January will empower employers, health plans and consumers to better evaluate the quality of these health care providers and suppliers.

CMS plans to begin sharing certain Medicare parts A, B and D provider claims data with “qualifying entities” that can demonstrate the necessary experience and qualifications for use in assisting employers, health plans and others to evaluate the performance of providers and suppliers.  CMS also will generate public reports about this performance data for purposes of aiding employers, consumers and others in evaluating the quality for provider or suppliers.

The disclosures will be made in response to Section 10332 of the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010 (collectively the “Affordable Care Act”).  Section 10332 generally requires CMS make available this Medicare data to “qualifying entities” for use in conjunction with other claims data to evaluate provider performance effective January 1, 2012.

The new Final Rule on Availability of Medicare Data for Performance Measurement (“Final Rule”) available for review here establishes detailed requirements about who, when and under what conditions that Medicare will allow qualifying entities to obtain and use certain standardized extracts of Medicare Parts A, B, and D provider and supplier performance data in conjunction with other claims data to evaluate provider and supplier performance pursuant to Section 10332. The Final Rule also discusses privacy requirements that qualifying entities must meet when handling this data. scheduled for official publication in the December 7, 2011 Federal Register

The disclosure of provider performance data is intended to provide greater transparency to employers, health plans, consumers and other parties in evaluating health care provider and supplier quality.  To access this information, however, entities will have to comply with detailed requirements.  Complicated restrictions included in the Final Rules make it likely that only sophisticated health plans and service providers will be able to directly access and use the provider and supplier data intended to be made available under the Final Rule, however.  

As implemented under the Final Rule, entities wishing to access the provider or supplier claims data will be required to meet detailed qualification and other requirements.  For instance, among other things, the Final Rule generally only allows an entity to access and use the provider data if it is an entity or business contractor to an entity that:

• CMS determines is an entity eligible to obtain the provider data under the eligibility criteria set forth in the Final Rule;
• Apply to obtain the provider data under the Final Rule for an allowed purpose in accordance with a demonstrated plan as required by the Final Rules;
• Meet a detailed list of requirements demonstrating that it has the experience, governance, policies, procedures and other required qualifications specified in the Final Rules to qualify to obtain and use the provider data;
• Pays the required fee;
• Comply with annual reporting and other reporting and monitoring requirements;
• Comply with the specific requirements of the Final Rules concerning the protection of the privacy of accessed data;
• Agree to meet the requirements described in the Final Rules; and
• Otherwise comply with all other applicable requirements of the Final Rule.

Entities accessing the information also will be monitored and subject to sanction for failing to comply with the Final Rule in using or handling the provider performance data once it is received.  Once an entity is allowed to access the provider claims data, the Final Rules specify that CMS will monitor and assess the performance of qualified entities and their contractors through audits, review of data source documentation and data as requested by CMS; site visits; review of data reported by the qualified entity as part of required annual reporting and other reporting requirements set forth in the Final Rule; analysis of complaints from beneficiaries and/or providers or suppliers.  If CMS determines that a qualified entity has breached any of these requirements, it may warn; require a corrective action plan (“CAP”); place the qualified entity on a special monitoring plan; or terminate the qualified entity from participation in the program in accordance with the Final Rules.

Health plans, employers, and other entities desiring to access or use this information will need to exercise care when applying to obtain and handling the data to ensure that all requirements are met.  To ensure that these requirements are met, parties interested in obtaining these rules should seek assistance from competent counsel and other qualified advisors concerning their proposed application and use of this data.

In light of these and other conditions for accessing and using this information, only a very limited of very sophisticated health plans, employers or other entities or their advisors are likely to apply to or qualify to access and use the provider and supplier claims data as contemplated by the rule. Individual consumers, and most employers generally will only benefit from the new access allowed to this data indirectly, by accessing the analysis of these entities.

For Help or More Information

If you need help responding to this new guidance or otherwise to deal with other health plan or insurance, employee benefit, human resources, compensation, health care matters or related matters, please contact the author of this update, Cynthia Marcotte Stamer.

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

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with health and managed care, insurance  and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend insured and self-insured medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  She also has worked extensively with Medicare and Medicaid Advantage, association, employer and other group insurance arrangements, MEWAs, fraternal benefit and mutual aid programs, government programs, and a broad range of other specialized health and other programs and insurers to design and administer arrangements in response to their unique regulatory and operational needs. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker 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, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

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:

• EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans
• New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices
• Incentives To Get Employee Into Wellness Education Requires Legal Risk Management
• HR Key Player In Managing Rising Risk of Disability, Other Discrimination Suits Under Obama Administration Justice Department
• HHS Chides Insurer For “Excessive” Premium Increases After Affordable Care Act Rate Audit
• IRS U-Tube Video Discusses 2012 Flexible Benefit Plan Rule Change
• Big Penalty for Lender Shows Risks of Violating Military Service or Vets Rights
• OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
• OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety
• OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
• OCR 1st HIPAA Privacy, Security & Breach Notification Compliance Audits Begin
• Employers Considering Using New IRS Voluntary Worker Classification Settlement Program To Resolve Payroll Tax Risks Must Also Manage Other Legal Exposures
• Participant Notification Added To Required Procedures For Church Plan Determination Letter Requests
• HHS Credits Affordable Care Act Adult Dependent Child Coverage Rule With Getting 1 Million Young Adults Health Coverage
• 2010 Webcast Series on Federal Employer Employment of Persons With Disabilities Planned
• EBSA Plans To Include Health Care Reform Compliance In Health Plan Audits Beginning In FY 2012; Disputes OIG Criticism Of ACA Enforcement Efforts
• New Labor Department Video Tries To Educate Young Workers About Benefits & Benefit Rights
• Employer Assistance and Resource Network Offers Free Webinars For Employers During October In Honor of Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities
• HHS Projects Medicare Advantage Enrollment Will Rise As Premiums Decline In 2012; Plans Face Increased Regulation & Enforcement
• HHS Credits Health Reform For Getting Health Coverage For Added 1 Million Young Adults
• 4th Circuit Rejects Two Challenges To Affordable Care Act Constitutionality
• Stamer Named Fellow In American College of Employee Benefits Counsel
• ABA TIPS Section Appoints Cynthia Marcotte Stamer Vice Chair of Employee Benefits General Committee
• Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures In 2012
• Company Executives, Plan Sponsors & Others May Face Personal Liability When Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities
• EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act: Employers Should Manage Risks  
• Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Back pay Settlement
• HHS Imposes 1st HIPAA Privacy Civil Penalty of $4.3 Million
• NLRB Settlement Shows Care Necessary When Employers Use Social Networking & Other Policies Restricting Employee Communications
• Wage & Hour Law Settlements Highlight Rising Wage & Hour Risks of U.S. Employers
• OCR Requires Rhode Island DHS To Provide Translation, Other Services For Limited English, Other Language Impaired Accommodations

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

About Solutions Law Press

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. 

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.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

Employers and health plans hoping to leverage the cost containment and other benefits of effective wellness programs may find helpful insights from a new Healthy Cal report about The Network for a Healthy California.  When designing and administering these programs, however, employers and health plans need to use care to manage nondiscrimination and privacy risks.

Healthy Cal reports that the experience of the The Network for a Healthy California, a partnering program by federal, state, and local agencies, shows that educational programs can help low-income families make better health choices. 

According to the Healthy Cal report, the 2009 Pediatric Nutrition Surveillance data from the California Department of Public Health found that roughly 21 percent of the population in Orange County’s between the ages of 5 and 20 years, and 17 percent of children between the ages of 2 and 5 years were obese. 

Healthy Cal says the Network created a number of initiatives that have helped many of Santa Ana’s low-income population access healthy foods and conducted a broad range of other educational programs for the population.  Noting that the outreach sought improve food choices, cultural and awareness barriers and other understandings and patient and family behaviors and circumstances.  Healthy Cal reports that these efforts are paying off.  Learn more at Healthy Cal.

Effective education programs are one element of successful wellness and disease management programs.  The Network’s efforts show that success from these efforts requires persistence.  Of course, making wellness education work starts with getting the employees and their families to the lesson.  That often is where the challenge lies.

Employers and health plans often face challenges getting employees and their family to participate in these and other wellness programs.  Many employers and health plans try to overcome participation barriers by offering financial or other rewards or penalities.   However,  legal concerns require that these arrangements be designed and used with great care to ensure that the savings sought from the wellness program are not overshadowed by defense and liability costs.

Financial or other incentive and reward programs of course must be designed to comply with the nondiscrimination rules of the Health Insurance Portability & Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA) and, perhaps most significantly of late, the Equal Employment Opportunity Commission’s interpretation of the Americans With Disabilities Act physical testing and other disability discrimination 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.  A recent Florida District Court decision upholding one employer’s wellness program on the facts and circumstances may provide helpful insights for employers and health plans planning to use these arrangements on steps and evidence to retain to position to claim certain potential defenses to ADA disability discrimination claims.  Until more favorable guidance evolves, however, all employers and health plans using these arrangements need to consider the potential exposures and take steps to position against a potential discrimination claim by private plaintiffs,   regulators or both.

Meanwhile, all 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.

Vendors enthusiastic about marketing their wellness and disease management programs frequently do not

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. 

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.

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:

• Businesses Face Rising Disability Discrimination Enforcement Risks
• 97 Months Prison Sentence For Virginia Businessman Shows Risks of Misleading Investors
• IRS Announces 2012 Cost of Living Increases For Employee Benefit Contributions & Benefits Limits
• Unions Gaining New Power From National Labor Relations Board’s New Activism
• HIPAA Alert! OCR 1st HIPAA Privacy, Security & Breach Notification Compliance Audits Begin
• Labor Secretary Comments Highlight Federal Protections & Resources To Support Veteran’s Employment Rights  
• IRS Exempts Enrolled Retirement Plan Agents From PTIN Requirement
• IRS Updates Meal, Travel Reimbursement & Deduction Rules  
• IRS Publishes More Guidance For Tax Preparers On Preparer Tax Identification Number  
• Plans & Investment Advisors Get Flexibility To Give Investment Advice To 401(k) & Other Individual Account Plan Participants & Beneficiaries 
• IRS To Waive User Fee On Certain Plan Qualification Determination Applications 
• EBSA Plans To Include Health Care Reform Compliance In Health Plan Audits Beginning In FY 2012; Disputes OIG Criticism Of ACA Enforcement Efforts 
• Affordable Care Act Pre-Existing Coverage Plan Only Covered About 39,000 of Millions Denied Private Coverage As of August 1, 2011
• New IRS Voluntary IRS Settlement Program Offers New Option For Resolving Payroll Tax Risks Of Misclassification But Employers Also Must Manage Other Legal Risks 
• HHS Projects Medicare Advantage Enrollment Will Rise As Premiums Decline In 2012; Plans Face Increased Regulation & Enforcement-SLP
• Stamer Named Fellow In American College of Employee Benefits Counsel
• Unions Get New Tool As NLRB Changes Bargaing Units Certification Rules For Non-Acute Health Care Facilities
• ABA TIPS Section Appoints Cynthia Marcotte Stamer Vice Chair of Employee Benefits General Committee
• Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures In 2012  
• Company Executives, Plan Sponsors & Others May Face Personal Liability When Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities
• EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act: Employers Should Manage Risks
• Extended Grace Period For Some, But Not All New Affordable Care Act Health Claims & Appeals Rules Gives Qualifying Plans, Insurers Limited & Imperfect Relief
• NLRB Settlement Shows Care Necessary When Employers Use Social Networking & Other Policies Restricting Employee Communications
• Wage & Hour Law Settlements Highlight Rising Wage & Hour Risks of U.S. Employers
• OCR Requires Rhode Island DHS To Provide Translation, Other Services For Limited English, Other Language Impaired Accommodations

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, 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 here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on 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.   

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

Look for the Department of Labor Employee Benefit Security Administration (EBSA) to begin looking at compliance with the group health plan reform mandates of the Patient Protection & Affordable Care Act (PPACA) and amended by the Health Care and Education Reconciliation Act (HCERA)(collectively “ACA”)  requirements as part of health plan audits in its Fiscal Year 2012. 

Assistant Secretary of Labor Phyllis Borzi  announced EBSA’s plan to begin examining ACA compliance as part of broader health plan compliance audits that the EBSA intends to conduct in Fiscal Year 2012 in her response to a critique of EBSA’s ACA inplementation and enforcement efforts contained in a September 30, 2011 audit report issued by the Departmentof Labor’s Office of Inspector General.   According to that response, EBSA has developed a comprehensive checklist for auditing ACA compliance by health plans that it plans to use as part of health plan audits and has conducted significant staff training as part of its ACA implementation activities.  In light of EBSA plans to add ACA compliance to its health plan audits in 2012, employer and union health plans, their sponsors, insurers and administrators should take appropriate steps to ensure that their programs terms and practices are up to date with these requirements.

Ms. Borzi shared the plans for audit as part of a broader rebuttle  on behalf of EBSA to criticisms contained in a September 30, 2011 report by the  U.S. Department of Labor Office of Inspector (OIG) critical of the effectiveness and speed of EBSA’s efforts to implement certain health care reform provisions of ACA. 

Enacted on March 23, 2010, ACA makes EBSA, along with the Internal Revenue Service and the Department of Health & Human Services, a key player in the implementation and enforcement of the health benefit targeted reforms enacted as part of its sweeping health care reforms.  The September 30, 2011 OIG report identified various areas of improvement that OIG indicated EBSA should make to its implementation efforts based on OIG’s review of efforts by the EBSA to carry out its responsibilities to interpret, implement and enforce these reforms.

OIG Concerns

While its September 30, 2011 report titled “Further Action By EBSA Could Help Ensure PPACA Implementation And Compliance,” (OIG Report) acknowledged the significant actions taken by EBSA toward implementing ACA, the OIG Report still found that EBSA should take additional action to help ensure the timely and effective implementation and enforcement of ACA’s reforms. 

The most significant criticism expressed in the OIG report related to the adequacy of work and data reported by EBSA to HHS for HHS to use to define the benefits to be considered “essential benefits” under ACA.  Under ACA, EBSA was required to provide HHS with the results of a survey of benefits typically covered by employers that is sufficiently broad to enable HHS to determine benefits provided under a typical employer plan.   The OIG Report expresses several concerns about the breadth and validity of the information that EBSA provided to HHS.  According to the OIG, EBSA was unable to state that the report it provided HHS was broad enough to encompass all benefits EBSA considered to be typically covered by employers. Moreover, EBSA did not address all benefits HHS requested.  As a result, OIG expressed concern that HHS may not be able to ensure that State Insurance Exchanges offer the appropriate essential health benefits required by ACA.

In addition to its critique of EBSA’s essential benefits survey, the OIG also concluded:

• EBSA could work with Treasury and HHS to establish a public timeline for addressing the public comments received on interim-final PPACA regulations and issuing final regulations;
•  EBSA should have included the ACA requirements in its health plan investigations to better leverage its enforcement resources to assist plans in complying with the new regulations; and
• EBSA should develop a regulation concerning MEWAs under PPACA Section 6604, regarding the applicability of State law as a means to combat fraud and abuse.

In light of these findings, the OIG recommended that EBSA take the following actions to strengthen its ACA implementation and enforcement actions:

• Work with the Departments of HHS, Treasury, and the Office of Management and Budget to establish specific timetables to respond to public comments and issue final regulations;
• Incorporate the ACA requirements immediately into the enforcement program to assist plans in complying with ACA;
• Provide HHS with the results of a survey of benefits typically covered by employers that is sufficiently broad to enable HHS to determine benefits provided under a typical employer plan; and
• Proceed with rulemaking relative to MEWAs under ACA section 6604.

EBSA Says Will Start Checking ACA Compliance in FY 2012 But Response Disputes Certain OIG Findings

While agreeing with the first and last recommendations, Ms. Borzi defended EBSA’s decision to delay auditing of health plan compliance with ACA and the adequacy of the survey data it reported to HHS for use in establishing essential benefits under ACA.

Concerning the auditing, Ms. Borzi said that EBSA has developed a comprehensive checklist to promote consistent investigations of ACA compliance, which EBSA plans to begin using when it conducts compliance assessments as part of its Fiscal Year 2012 Health Benefits Security Project as part of a broad range of implementation activities that EBSA has performed.  Ms. Borzi’s response to the OIG recommendations indicated that EBSA disagrees with OIG’s assessment that EBSA should be auditing compliance with ACA as part of its current year audits.  Rather, Ms. Borzi indicated that EBSA’s assessment and experience leads it to believe it more suitable for EBSA to use a phased implementation approach under which EBSA which delayed ACA compliance audits pending the development of regulations and after plans and insurers have had the opportunity to proccss the implementing regulations and related guidance and benefit from EBSA’s extensive outreach.

Ms. Borzi also took exception to the OIG’s criticism of EBSA’s survey.  In her response, she states that the report EBSA made to HHS “fully satisfies” the requirements of ACA.  She pointed out that ACA “clearly requires the Secretary of HHS, rather than the Secretary of Labor, to determine the scope of benefits offered by a typical employer plan. Thc stated purpose of the Secretary of Labor’s survey is to inform this determination.”  According to Ms. Borzi, the survey is based on the National Compensation Survey conducted regularly by the Department’s Bureau of Labor Statistics uses a large, nationally representative sample of employers to collect detailed information on whether particular benefits are included in employer health plans. Ms. Borzi concluded that this survey “will al1ow the Secretary of HHS to determine which are offered by a typical employer plan.

Likewise, Ms. Borzi disagreed with the OIG’s criticism that the report provided to HHS does not expressly tate which benefits are “typical” as unfounded.  According to Ms. Borzi, the statute docs not require the DOL to determine a specified threshold of incidence above which (and only above which) the benefit should be considered “typical.”  As a result, Ms. Borzi concluded that the EBSA report, by providing detailed data on the incidence of different benefits, fulfills the statutory purpose and requirements without taking on the function of the Secretary of HHS. 

Ms. Borzi’s response also reported the EBSA’s disagreement with the OIG’s assertion that EBSA’s approach to the report could impair the public comment process.   She stated that the report and associated supporting materials are easily available to the public and that commcntcrs are free to provide their views on the survey and on what benefits arc offered by a typical employer plan. Furthermore,Ms. Borzi pointed to planned opportunities for public input announced by the Secretary of HHS as offering additional opportunities for public input.

For More Information Or Assistance

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. 

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.

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

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

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

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

Learn more  here.

For Assistance or Additional Information

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

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

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

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

About Solutions Law Press

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. 

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.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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

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

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

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

Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, incoming ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author,  Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers and governments on health care, retirement, employment, insurance, :and tax program design, administration, defense and policy.  Her 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 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.

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

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

Register and get additional retails online at www.webnetwork.org/houston.

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

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

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

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

Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, incoming ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author,  Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers and governments on health care, retirement, employment, insurance, :and tax program design, administration, defense and policy.  Her 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 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.

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

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

Register and get additional retails online at www.webnetwork.org/houston.

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