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OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks

December 14, 2011

U.S. employers Federal government contractors and subcontractors will be required to set a hiring goal of having 7 percent of their workforces be people with disabilities, among other requirements if tightened regulations proposed by the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) is finalized as proposed on December 9. The proposed regulation would raise the target for hiring of disabled workers by government contractors to an unprecedented high. Coupled with other enforcement and regulatory activism by the Administration, the proposal highlights the need for government contractors as well as other U.S. businesses to guard against rising discrimination law exposures.

Employers that are government contractors should review the proposed regulations to determine its anticipated effect. Employers concerned about the proposed tightening of hiring standards or other provisions of the proposed regulation also should consider commenting on the proposed regulation. Meanwhile, all employers should heed the proposed regulation as yet another sign of the heightening of their exposures and responsibilities to disabled and other workers protected by federal discrimination laws under the Obama Administration.

Tighter Disability Discrimination Rules Proposed For Government Contractors

OFCCP’s proposed rule would raise the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.

The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.

Among other things, the proposed rule would:

Set a 7 percent hiring goal for the employment of individuals with disabilities, the highest level ever;
Required enhanced documentation and recordkeeping of requests and processing of requests for reasonable accommodation and other matters;
Ensure annual self-reviews of employers’ recruitment and outreach efforts; and
Add a new requirement for contractors to list job openings to increase their pools of qualified applicants.

These new rules would expand already significant nondiscrimination, affirmative action and recordkeeping requirements applicable to government contractors. The expansion of these rules comes as the reach of federal employment discrimination laws has been expanded to a significant number of employers not historically covered by these requirements due to participation in Stimulus Bill or other government funded programs which with broader than historically applicable affirmative action requirements.

Meanwhile, enforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations.

The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.

Government contactors and subcontractors as well as other employers should review these rules to assess their potential impact, as well as evaluate the adequacy of already existing practices and documentation with discrimination and other laws.

All organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges. Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments concerning whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.

Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes. In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

If you need help 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 private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other 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, procurement, conflict of interest, discrimination management, 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.

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:

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 ww.solutionslawpress.com.

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OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety

December 5, 2011

The November, 2011, OSHA nailed New York animal feed processor Harbor Point Mineral Products for 21 workplace safety standard violations uncovered following OSHA’s investigation of the death of a worker in a grain silo accident. The worker was fatally engulfed by cotton seed stored in a silo on May 11, 2011. The action illustrates the need for grain silo and other similar operators to audit and maintain appropriate safety compliance to guard against OSHA liability.

An inspection by OSHA’s Syracuse Area Office found that employees had not been trained on the hazards associated with entering a silo and were not equipped with an approved lifeline. In addition, the atmosphere inside the silo had not been sampled for oxygen deficiency and the energy source of the silo’s augur had not been locked out prior to entry. Due to the employer’s knowledge of and failure to address these hazards, OSHA issued citations for four willful violations. A willful violation exists when an employer has demonstrated either an intentional disregard for the requirements of the law or plain indifference to employee safety and health.

OSHA also cited the company for 17 serious violations for a variety of additional safety and health hazards. These included allowing an employee to “walk down” the grain; the lack of rescue equipment and training; employees overexposed to grain dust and the lack of controls to reduce the exposure level; respiratory and hazard communication deficiencies; and fall hazards from unguarded ladder, floor and wall openings.

A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. See citations here and here.

In response to these citations, OSHA notified Harbor Point that it faced proposed penalties totaling $155,200 and placed Harbor Point in its Severe Violator Enforcement Program (SVEP), which mandates targeted follow-up inspections to ensure compliance with the law. Initiated in June 2010, the program focuses on “recalcitrant employers” that OSHA views as endangering workers by committing willful, repeat or failure-to-abate violations. For more information on SVEP, see here.

OSHA also has fined grain operators in Wisconsin, Illinois, Colorado, South Dakota, Ohio and Nebraska following preventable fatalities and injuries. In addition to enforcement actions and training, OSHA Assistant Secretary Dr. David Michaels sent a notification letter in August 2010 and another in February 2011 to grain elevator operators warning them of proper safety precautions. For a copy of the letter, visit here.

Grain operators and related workers are not the only industry receiving enforcement attention. OSHA generally investigations any accident resulting in a worker death or serious injury, as well as conducts audits of a broad range of employers with some industries targeted for special attention based on what OSHA perceives as heightened hazards or noncompliance within the industry.

According to OSHA, the overall most commonly sited OSHA violations include several common to these industries. OSHA’s “Top 10” list of safety protection standard violations include scaffolding, fall protection, hazard communications, respiratory protection, lockout/tagout, electrical, wiring methods, powered industrial trucks, ladders, electrical general requirements, machine guarding and machine guarding.

Grain silo and other employers should review safety practices and compliance for compliance with these and all other standards and to address other potential safety risks to minimize OSHA and other occupational injury related liabilities. and ensure their documentation of these efforts meets OSHA requirements and also positions the employer to defend against potential sanctions in the event of an employee injury or OSHA audit.

Because of the heavy use of subcontractors in these industries, employers also should be cognizant of potential exposures that can result from other businesses and workers on site.

In addition, employers should take care to ensure that all required documentation of safety practices and notifications dictated by OSHA are maintained and properly preserved.

In the event of an accident or other safety hazard event, employers also should engage counsel and other needed experts to timely investigate, provide notification and redress and manage resulting exposures under OSHA, worker’s compensation and other laws.

For Help With These Or Other Matters

If you would like help reviewing or defending your organization’s occupational health and safety or other employment or risk management concerns or wish to discuss arranging for Ms. Stamer to conduct training or speak for your organization, please contact Ms Stamer here.

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

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with employment, health and safety, employee benefits, compensation and other internal controls and workforce matters. She has 24 plus years experience helping employer and other clients develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits and other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

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

About Solutions Law Press

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HHS Credits Health Reform For Getting Health Coverage For Added 1 Million Young Adults

September 22, 2011

The Department of Health & Human Services is touting the Affordable Care Act as helping 1 million young adults get health coverage. On September 21, 2011, HHS announced that data from the National Center for Health Statistics at the Centers for Disease Control and Prevention (CDC) showed that the Affordable Care Act has helped increase the number of young adults who have health insurance. According to HHS, data from the National Health Interview Survey (NHIS) shows that in the first quarter of 2011, the percentage of adults between the ages of 19 and 25 with health insurance increased by 3.5 percentage points, representing approximately 1 million additional young adults with insurance coverage compared to a year ago.

Under the Affordable Care Act, most group health plans and insurance contracts offering dependent coverage must continue to offer dependent child coverage for children up to age 26. The obligation to offer dependent child coverage to age 26 generally applies regardless of whether the child is married or otherwise dependent upon the parent for support. Implementing regulations required group health plans and insurers to notify covered persons of these rights and where applicable, offer opportunities to enroll or re-enroll qualifying adult children not enrolled when the law took affect. As the implementation of these rules and the governing guidance continues to evolve, employer and other health plan sponsors, plans, insurers, fiduciaries and administrators need to review and update plan documents, contracts, communications and practices to meet new responsibilities and mitigate risks.

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

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

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

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

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

May 20, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About Solutions Law Press

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 including:

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Posted by Cynthia Marcotte Stamer

OCR’s McAndrew Speaks At 5/16 JCEB HIPAA Teleconference; OCR/NIST To Share Other HIPAA Training On Line

May 10, 2011

The National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (HHS), Office for Civil Rights (OCR) are making presentations from the 4th annual conference on “Safeguarding Health Information: Building Assurance through HIPAA Security” co-hosted in Washington, D.C. on May 10 & 11, 2011 available on line for review. The training is part of a series of continuing efforts by the agencies to outreach to various parties on the Privacy and Security Rules of the Health Insurance Portability & Accountability Act of 1996, as amended (HIPAA). Meanwhile, OCR’s Susan McAndrew is scheduled to share insights on OCR’s HIPAA regulatory and enforcement agenda at a teleconference to be hosted by the American Bar Association Joint Committee on Employee Benefits at Noon Central on May 16, 2011.

The Security Rule sets federal standards to protect the confidentiality, integrity and availability of electronic protected health information by requiring HIPAA covered entities and their business associates to implement and maintain administrative, physical and technical safeguards. Presentations cover a variety of current topics including updates on HHS health information privacy and security initiatives, OCR’s enforcement of health information privacy and security activities, integrating security safeguards into health IT and security automation, insider threat trends and safeguards, and more.

The conference is designed to explore the current health information technology security landscape and the Health Insurance Portability and Accountability Act (HIPAA) Security Rule, the agencies share their practical strategies, tips and techniques for implementing the HIPAA Security Rule.

For details about reviewing the May 10-11 presentations, see the 2011 HIPAA Conference website here. For details about the May 16 teleconference, see here.

For Help With Monitoring Developments, Compliance, Investigations Or Other Needs

If you need assistance monitoring federal health reform, 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, can help. 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 23 years experience advising 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.

Ms. Stamer also regularly works with OCR and other agencies, 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, On May 3, 2011, Ms. Stamer served as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR and will moderate a teleconference featuring comments by OCR’s Susan McAndrew for the Joint Committee on Employee Benefits scheduled for May 16. Her insights on the required “culture of compliance” with HIPAA also recently were quoted in medical privacy related publications of the Atlantic Information Service. 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, 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.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

May 18 NTHCPA Meeting On HIPAA Legal Issues

May 10, 2011

NORTH TEXAS HEALTHCARE COMPLIANCE PROFESSIONAL ASSOCIATION

Invites Members and Guests to Join In The May BYO Brown Bag Luncheon

“Selected Legal Issues in HIPAA Compliance”

May 18, 2011
Noon-2:00 p.m.
Dallas Ft Worth Hospital Council

250 Decker Drive, Irving, TX 75062-2706

North Texas Healthcare Compliance Professional Association (NTHCPA) invites members and other interested health care compliance professionals to join other NTHCPA members and guests on Wednesday, May 18, 2011 from Noon to 2:00 p.m. as DFW attorney Scott Chase leads a program on “Selected Legal Issues in HIPAA Compliance.” During the program, Mr. Chase will review selected current legal problems in complying with the security and privacy audit requirements, notification of breaches of security and responses to subpoenas under the HIPAA Privacy and Security Rules. Participants also will enjoy ample opportunity to network with each other and dialogue on these and other HIPAA related challenges.

Scott Chase is a solo practitioner who has represented small business owners (primarily physician groups) for almost 30 years. Prior to his solo practice, he served as General Counsel for 2 public companies, including a large hospital management company. He has chaired the Corporate Counsel Section of the Dallas Bar Association and its Health Law Section and, in 2002, he was among the first 28 Texas lawyers to be Board Certified in Health Law by the Texas Board of Legal Specialization.

The meeting will be held at the offices of the Dallas Ft Worth Hospital Council, 250 Decker Drive, Irving, TX 75062-2706. Under the new brown bag luncheon format, members and guests are encouraged to bring along a lunch of their choosing and participate in this skill building and networking event.

NTHCPA meetings are open to all NTHCPA members and other interested health care compliance professionals. Participation in the meeting is complimentary. Participants are responsible for any parking charges incurred.

Save The Date For June 15 Meeting

Save the date and plan to attend the June meeting featuring a program and dialogue on “Current Government Enforcement Initiatives” to be lead by Jones Day attorney Frank Sheeder at the Dallas Ft Worth Hospital Council offices on June 15, 2011 from Noon to 2 p.m.

RSVP & Register For Invites & Updates

To help us to notify you about upcoming meetings and to arrange for adequate space for this and other meetings, interested persons are encouraged to forward their current contact information including e-mail to Vice-President Cynthia Marcotte Stamer at (469) 767-8872 or by e-mail here. Stay on top of information about upcoming meetings and share and dialogue with other NTHCPA members about health care compliance challenges and developments by joining our Linked In Group here. Please feel free to share this invitation with others who may be interested.

About the NTHCPA

NTHCPA exists to champion ethical practice and compliance standards and to provide the necessary resources for ethics and compliance Professionals and others in North Texas who share these principles. The vision of NTHCPA is to be a pre-eminent compliance and ethics group promoting lasting success and integrity of organizations within North Texas. To register or update your registration or to receive notice of future meetings, e-mail here.

Would you like to get more involved? We encourage persons interested in serving on the steering committee, sponsoring refreshments for an upcoming meeting, wish to suggesting topics or speakers, or seeking more information about membership or involvement with the NTHCPA to contact:

NTHCPA President Erma Lee at (817) 927-1232 or by e-mail here or

Vice-President Cynthia Marcotte Stamer at (469) 767-8872 or by e-mail here

This communication may be considered a marketing communication for certain purposes. If you wish to update your e-mail for purposes of or would prefer not to receive future e-mail concerning meetings or other activities of the North Texas Healthcare Compliance Professionals Association or other marketing and promotional mailings from it, please send an email with the word “unsubscribe” in its subject heading here.

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4/19 Deadline For Comments On Proposed Rules For Selecting State Employment Service Delivery Systems Providers For Veterans

February 23, 2011

April 19, 2011 is the deadline for sharing comments with the U.S. Department of Labor Veterans’ Employment and Training Service (VETS) on proposed regulations that would establish a uniform national threshold performance level to be applied to state grantees that provide employment services to veterans under both the Wagner-Peyser State Grants administered by the Labor Department’s Employment and Training Administration and the Jobs for Veterans State Grants administered by VETS.

Under the proposed rule published February 18, 2011 here, the national threshold will apply to “state employment service delivery systems” funded by these two-state grant programs but not the employment services provided through state and local agency grants under the Workforce Investment Act. To determine whether any of the state employment service delivery systems are deficient in their services to veterans, the proposed rule will apply the national threshold as part of a two-step process:

Step 1, identify those state agencies whose performance on behalf of veterans is to undergo further review.
Step 2, conduct a comprehensive review of the operations and outcomes of those state agencies whose performance falls below the national threshold, taking into account economic conditions and other key factors that vary by state. If the review determines that the performance of a state grantee is deficient, the draft rule requires that the state grantee prepare a corrective action plan, with technical assistance provided by VETS. The corrective action plan then will be submitted to the department for approval.

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

If you need assistance in reviewing or commenting on the proposed rule or with other labor and employment, employee benefit, compensation, or other internal controls and practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, 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 has counseled, represented and trained employers and other employee benefit plan sponsors, plan administrators and fiduciaries, insurers and financial services providers, third party administrators, human resources and employee benefit information technology vendors and others privacy and data security, fiduciary responsibility, plan design and administration and other compliance, risk management and operations matters for more than 23 years. 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 health care, human resources, employee benefits, data security and privacy, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

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Posted by Cynthia Marcotte Stamer

Avoiding Post-Holiday Celebration Sexual Harassment & Discrimination Liability

December 29, 2010

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

Celebrations Raise Foreseeable Risks

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

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

Timely Investigation & Notification

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

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

For Help With Investigations, Policy Updates Or Other Needs

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

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

Other Helpful Resources & Information

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

About Solutions Law Press

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. If you do not wish to receive these updates in the future, unsubscribe by updating your profile here.

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Posted by Cynthia Marcotte Stamer

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

June 29, 2010

Learn Latest At July 9 Briefing

The Departments of Health & Human Services (HHS), Labor and Treasury on Monday published key interim regulations (Rule) that interpret and implement the health plan preexisting condition exclusions, lifetime and annual limits, rescissions, and other patient rights provisions generally scheduled to apply to post-September 22, 2010 plan years under the Patient Protection and Affordable Care Act (Affordable Care Act). Today, HHS followed up this guidance release by beginning to accept applications for employers and other program sponsors that want to apply for participation in the Early Retiree Reinsurance Program (ERRP) established under the. Affordable Care Act. These two key developments are the latest in a series of other key developments impacting the Affordable Care Act’s group health plan rules.

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

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

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

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

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

Certain plans qualifying as “grandfathered” for purposes of the Affordable Care Act may qualify as exempt from these requirements. Guidance on when plans qualify as “grandfathered” was issued last week.

Early Retiree Reinsurance Program Application Opening

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

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

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

Other Affordable Care Act Guidance

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

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

IRS Guidance On Special Tax Incentives for Small Businesses to Provide Health Care, Hire New Workers, see here, here, here and here.

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

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

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employer and other plan sponsors, insurers, administrators, fiduciaries, governments and others design, administer and defend innovative health and other employee benefit programs and other human resources, compensation and management policies and practices.

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

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

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

Other Resources

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

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

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Posted by Cynthia Marcotte Stamer

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

May 25, 2010

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

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

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

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

About the Speaker

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

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

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

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

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

About The Sponsor

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

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Posted by Cynthia Marcotte Stamer

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

May 20, 2010

Federal government contractors and subcontractors generally must post a new federally-mandated ‘‘Employee Rights Under The National Labor” poster informing employees of federal unionization rights and protections under the National Labor Relations Act under a new rule U.S. Department of Labor Office of Labor-Management Standards (DOL) today (May 20, 2010).

The new regulation available here implements the Executive Order 13496 (‘‘Executive Order 13496’’) signed by January 30, 2009, which requires nonexempt Federal departments and agencies to include within their Government contracts specific provisions requiring contractors and subcontractors with whom they do business to post notices informing their employees of their rights as employees under Federal labor laws protecting union organizing rights.

This final rule establishes the content of the notice required by the Executive Order’s contract clause, and implements other provisions of the Executive Order, including provisions regarding sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations under the Order and the implementing regulations. Among other things the regulation:

Defines terms;
Prescribes the size, form and content of the employee notice;
Establishes exceptions to the requirements for exceptions for certain types of contracts and contracting departments and agencies; and
Standards and procedures related to complaint procedures, compliance evaluations, and enforcement of the rule; and
Other standards and procedures related to certain ancillary matters.

To fulfill the new requirements, covered government contractors must post a new Labor Department poster containing the required notice in accordance with the Rule. Covered employers may obtain the required poster from either:

The applicable Federal contracting agency;
The Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N–5609, Washington, DC 20210;
Any Labor Department Office of Labor-Management Standards or Office of Federal Contract Compliance
Programs;
By download from the Office of Labor-Management; or
Standards Web site Office of Labor-Management Standards Website.

If the contractor or subcontractor customarily posts notices to employees electronically, it also must electronically prominently on any Web site maintained by the contractor or subcontractor customarily used for notices to employees about terms and conditions of employment, a link to the Department of Labor’s Web site that contains the full text of the poster in the manner required by the regulation.

Backed by the Obama Administration and the Democrat Majority in Congress, union organizing, public policy and other activities are creating significant new challenges for employers. The new Rule reflects this support. In the face of this expanding activities and proposed legislation and regulations that designed to further strengthen unions, employers need to clearly understand their obligations and rights and obligations under the NLRA and other federal labor laws and consider and carefully administer strategies to manage employment and operational risks that heightened union activities can create. If you need additional information about the new Rule, help understanding or responding to union matters, or assistance with other employment, employee benefit or compensation matters a contact the author of this update, attorney and consultant Cynthia Marcotte Stamer, for assistance at (469) 767-8872 or here.

About Ms. Stamer

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping businesses manage labor and employment, employee benefits, performance management and discipline, compliance and internal controls, risk management, and public policy matters including specific labor-management relations experience. The Editor and Publisher of Solutions Law Press, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. She regularly speaks and conducts training for the American Bar Association, American Health Lawyers Association (AHLA), Health Care Compliance Association, Institute of Internal Auditors, Society of Human Resources Management, and many other organizations. Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here. Her insights on these and other matters appear in Managed Care Executive, Modern Health Care, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, MDNews, Kentucky Physician, and many other national and local publications.

Other Resources

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

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

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Posted by Cynthia Marcotte Stamer

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

May 19, 2010

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

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

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

About Ms. Stamer

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

Other Resources

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer 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 or e-mailing this information here or registering to receive our Solutions Law Press distributions here. For important information about this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

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

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

May 19, 2010

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

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

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

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

About Ms. Stamer

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

Other Recent Updates and Resources

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

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

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Posted by Cynthia Marcotte Stamer

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

May 15, 2010

By Cynthia Marcotte Stamer

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

Projected Cost of Health Care Reform Increased

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

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

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

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

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

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

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

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

Responsible & Prompt Action Needed

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

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

About Ms. Stamer

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

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

Other Resources

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

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

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

GINA Discussion Topic At February HHS Advisory Committee on Genetics, Health & Society Meeting G

December 16, 2009

By Cynthia Marcotte Stamer

Employers are facing new headaches and liabilities under new federal genetic information nondiscrimination and privacy rules for employers and health plans enacted under the Genetic Information Nondiscrimination Act. GINA’s genetic information nondiscrimination and confidentiality rules for employers became effective on November 21, 2009. Its separate genetic information nondiscrimination and privacy mandates for group health plans generally apply to post May 20, 2009 plan years. Employer and health plan efforts to comply with these mandates has been complicated both by the challenges they create for certain wellness, disease management, environmental safety and other obligations, and the absence of final regulations.

With the compliance deadline now passed, many employers and health plans now are struggling to maintain viable wellness, safety and disease management programs within the allowable parameters of GINA and the newly tightened disability discrimination requirements of the Americans With Disabilities Act. In the face of these challenges, many employers are arguing that these regulations should be revised in order to allow and encourage employers and their health plans to provide beneficial disease management, wellness and safety programs made too risky by the current regulatory structure.

The Department of Health & Human Services (HHS) plans to hold a public meeting of the Secretary’s Advisory Committee on Genetics, Health, and Society (SACGHS) of the U.S. Public Health Service on February 4-5, 2009. As part of the planned agenda, SACGHS will get an update from Federal agencies on activities related to the implementation of the Genetic Information Nondiscrimination Act, the coverage and reimbursement of genetic tests, the oversight of genetic testing, and the retention and use of residual dried blood spot specimens after newborn screening. The meeting will offer the opportunity for members of the public to attend the meeting on a space available basis or to view a Webcast.

The SACGHS meeting will be held from 8:30 a.m. to approximately 5:30 p.m. on Thursday, February 4, 2010, and from 8 a.m. to approximately 3 p.m. on Friday, February 5, 2010, at the Omni Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC 20008.

Other announced agenda items include:

The review of a revised report on gene patents and licensing practices;
The review of a public consultation draft report on genetics education and training;
An information-gathering session on the mechanisms and policies related to genomic data sharing;
A preliminary discussion to help plan a future session on implications of an affordable genome;
A report on activities of the Clinical Utility and Comparative Effectiveness Task Force; and
Updates from Federal agencies on activities related to the implementation of the Genetic Information Nondiscrimination Act, the coverage and reimbursement of genetic tests, the oversight of genetic testing, and the retention and use of residual dried blood spot specimens after newborn screening.

For more information about registration for the meeting, submission of comments and other details, here.

If you have questions about or need assistance evaluating, commenting on or responding to the GINA, or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

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

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Posted by Cynthia Marcotte Stamer

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

December 8, 2009

By Cynthia Marcotte Stamer

The U.S. Department of Labor (Labor Department) plans to implement a host of new employee benefit and employment regulations seeking to strengthen employee benefit, wage and hour, safety and other protections with greater transparency and disclosure, the Labor Department announced yesterday.

Employee Benefits, Wage & Hour, OSHA & Other Rules Seek To Protect Workers With Transparency

Employee Benefits Security Administration (EBSA) plans to implement a host of new rules designed to strengthen retirement security by expanding the private employee benefit plan disclosure requirements and enhancing the availability of information to pension plan participants and beneficiaries and employers, according to the Department of Labor (DOL) 2009 Regulatory Agenda (the “Regulatory Agenda”) announced yesterday.

According to the Regulatory Agenda, EBSA plans to promote these goals through the implementation of a host of new rules including:

Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans, which would increase transparency between individual account pension plans and their participants and beneficiaries by ensuring that participants and beneficiaries are provided the information they need, including information about fees and expenses, to make informed investment decisions.
Amendment of Standards Applicable to General Statutory Exemption for Services, which would require service providers to disclose to plan fiduciaries services, fees, compensation and conflicts of interest information.
Annual Funding Notice for Defined Benefit Plans, which would require defined benefit plan administrators to provide all participants, beneficiaries and other parties with detailed information regarding their plan’s funding status.
Periodic Pension Benefits Statements, which would require pension plans to provide participants and certain beneficiaries with periodic benefit statements.
Multiemployer Plan Information Made Available on Request, which would require pension plan administrators to provide copies of financial and actuarial reports to participants and beneficiaries, unions and contributing employers on request.

The 2009 Regulatory Agenda highlights the most noteworthy and significant regulatory projects that the Labor Department has established for the EBSA, the Employment Standards Administration (ESA), Mine Safety and Health Administration (MSHA), Occupational Safety and Health Administration (OSHA), and Employment and Training Administration (ETA) for the upcoming year. In addition to the transparency rules planned for EBSA, the 2009 Regulatory Agenda also indicates that employers can expect new Labor Department regulations targeting transparency in other areas. These include:

The MSHA to propose a rule on Notification of Legal Identity, which would require mine operators to provide increased identification information, would allow the agency to better target the most egregious and persistent violators and deter future violations.
The Office of Labor-Management Standards’ to propose regulations on Notification of Employee Rights Under Federal Labor Laws, which would implement Executive Order 13496 and require all Government contracting agencies to include a contract clause requiring contractors to inform workers of their rights under Federal labor laws.
The Wage and Hour Division to update its regulations about Records to be Kept by Employers Under the Fair Labor Standards Act to enhance the transparency and disclosure to workers as to how their wages are computed and to allow for new workplace practices such as telework and flexiplace arrangements.
OSHA to modify its Hazard Communication Standard to require standardized labeling requirements and order of information for safety data sheets and to update its Occupational Injury and Illness Recording and Reporting Requirements rule, which would propose the collection of additional data to help employers and workers track injuries at individual workplaces, improve the Nation’s occupational injury and illness information data, and assist the agency in its enforcement of the safety and health workplace requirements.

Other Employee Benefit Regulations Planned

Beyond its planned EBSA transparency initiative, the 2009 Regulatory Agenda reflects that other EBSA regulatory priorities for the year ahead include:

Issue guidance implementing the group health plan Genetic Information Nondiscrimination Act of 2008 (GINA) amendments to ERISA which generally prohibit group health plans from discriminating in health coverage based on genetic information and from collecting genetic information. This will be a joint rulemaking action with the Departments of Health and Human Services and the Treasury.
Provide guidance regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) amendments to ERISA. MHPAEA creates parity for mental health and substance use disorder benefits under group health plans by mandating that any financial requirements and treatment limitations applicable to mental health and substance abuse disorder benefits to be no more restrictive than predominant requirements or limitations applied to substantially all medical and surgical benefits covered by a plan.
Issue guidance clarifying the circumstances under which health care arrangements established or maintained by state or local governments for the benefit of non-governmental employees do not constitute an employee welfare benefit plan for purposes of ERISA.
Propose amendments to its regulations to clarify the circumstances under which a person will be considered a fiduciary when providing investment advice to employee benefit plans and their participants and beneficiaries of such plans.
Explore steps it can take by regulation, or otherwise, to encourage the offering of lifetime annuities or similar lifetime benefits distribution options for participants and beneficiaries of defined contribution plans.

Employers and employee benefit plan sponsors, fiduciaries, and service providers should take into account these planned regulatory changes for budgeting and program design purposes and keep alert for announcements of proposed or final regulations or other guidance in these and other areas.

If your organization needs assistance with monitoring, assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Examples of other recent updates you may have missed include:

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

Comments Off on Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations | Absenteeism, ADA, Affirmative Action, Corporate Compliance, Defined Benefit Plans, EEOC, Employee Benefits, Employers, ERISA, family leave, GINA, Government Contractors, Human Resources, Military Leave, OFCCP, OSHA, Retirement Plans, Risk Management, Safety, Uncategorized, Wellness | Tagged: COBRA, Corporate Compliance, defined benefit plan, Disability Discrimination, Disease Management, Employee Benefits, Employers, Employment, ERISA, GINA, Human Resources, Insurance, Internal Controls, Medical Coverage, Military Leave, Minimum Wage, Occupational Injury, Overtime, Privacy, Retirement Plans, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

HIT Standards Committee Meets October 14

September 29, 2009

The next meeting of the HIT Standards Committee of the Office of the National Coordinator for Health Information Technology (ONC) will be held on October 14, 2009, from 9 a.m. to 3 p.m./Eastern Time at the Omni Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC. The hotel telephone number is 202-234-0700. Interested members of the public are invited to attend.

Created under the American Recovery and Reinvestment Act of 2009 (ARRA), the HIT Standards Committee is charged with making recommendations to the Office of National Coordinator for Health Information Technology (ONC) on standards, implementation specifications, and certification criteria for the electronic exchange and use of health information consistent with the implementation of the Federal Health IT Strategic Plan, and in accordance with policies developed by the HIT Policy Committee. Even as Congress debates further reforms, the activities of the HIT Committee and other components of the ONC are key actors in the continuing efforts of the Obama Administration to promote health care efficiency by reengineering health care technology.

During a previous meeting on August 20, 2009, the HIT Committee finalized certain recommendations concerning meaningful use of electronic medical records, clinical quality, and privacy and security of protected health information, which are available for review here.

According to the ONC announcement regarding the upcoming meeting in today’s (September 29, 2009) Federal Register available here, the Committee plans during the meeting to:

Discuss reports from its Clinical Operations, Clinical Quality, and Privacy and Security Workgroups
Take testimony from invited experts in the field of security as it relates to health information technology

Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions may be made to the contact person on or before October 6, 2009. Oral comments from the public will be scheduled between approximately 2:30 p.m. to 3 p.m. Time allotted for each presentation may be limited. If the number of speakers requesting to comment is greater than can be reasonably accommodated during the scheduled open public hearing session, ONC will take written comments after the meeting until close of business.

ONC hopes to make background material available to the public at least two (2) business days prior to the meeting. However, if ONC is unable to post the background material on its Web site before the meeting, it will make that material publicly available at the location of the advisory committee meeting, and post the background material on ONC’s web site after the meeting here.

The designated person to contact for additional information is Jonathan Ishee, Office of the National Coordinator, HHS, 200 Independence Ave, SW., Room 729-G, Washington, DC 20201, 202-205-8493, Fax: 202-690-6079, e-mail: jonathan.ishee@hhs.gov.

If you need assistance preparing or presenting comments to the HIT Standards Committee or with monitoring or responding to other health care IT, privacy and data security, regulatory, operational, public policy or other health or other employee benefit or human resources concerns, please contact the author of this update, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail at CStamer@CTTLegal.com.

Other Recent Developments

If you found this information of interest, you also may be interested in reviewing some of the following recent Solution Law Press Updates available online by clicking on the applicable article title below:

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending these or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Labor, Employment & Employee Benefit Practice Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health and other employee benefit, human resources and related matters.

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Posted by Cynthia Marcotte Stamer

Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

August 1, 2009

As the health care reform policy debate continues, Americans increasingly are asking where to read the text of the health care reform legislation that members of Congress are debating and how to share their input.

While numerous alternatives presently are pending before Congress, much of recent discussion and debate has focused around one of the following bills:

H.R. 3200: America’s Affordable Health Choices Act of 2009, introduced in the House by Rep Dingell, John D. on July 14, 2009 the text of which as originally introduced may be reviewed here. It has been the focus of significant mark up negotiation through out July before the following House Energy and Commerce, House Ways & Means, and House Education & Labor Committees; and
S. __, the Affordable Health Choices Act approved by the Senate Committee on Health, Education, Labor and Pensions, the text of which as approved may be reviewed here.

When reviewing these bills, Americans should keep in mind that members of Congress are engaged in ongoing negotiations about the specific provisions and language of these bills, as well as other legislation. Official developments generally may be monitored here.

Many American businesses and individuals also are asking about how and where to share their views, how to organize others to do the same and other questions about getting the word out. Here a some quick ideas. We encourage others to share.

The Coalition For Patient Empowerment and the Coalition for Responsible Health Care Reform linkedin group are two one of many resources where individuals are sharing information about these matters.
Concerned individuals should share their views both by faxing, e-mailing or telephoning key decisionmakers in Congress, as well as joining and participating in activities of other individuals and groups that share their concerns. Contact and get involved with this and other groups that share your concerns.
Contact the offices of your Congressional representatives in the House and Senate as well as other members of Congress that support your views and ask them about other groups and ways that you can share your views. They will welcome your input and involvement.
If you are aware of or involved in a group that shares your views, we encourage you to share it on the Coalition for Responsible Health Care Reform linkedin group. If you or others are planning a town hall or other health care reform meeting, use this or other linked in groups to spread the word.
If you are interested in volunteering to plan events in your region, let us know.

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, and registering to receive these updates here.

When communicating, consider targeting your messages to members of Congress whose votes are likely to be impacted by your communications.

For instance, with both the House and Senate in the majority in Congress, Democrats generally have greater control over what legislation moves forward. The Democratic Leadership of the House and Sentate generally can get legislation passed by their members as long as they can maintain consensus among the members of their parties. In connection with the health care reform proposals, however, cost and other considerations have made maintaining a consensus more difficult than on other legislation. Certain fiscally moderate members of the Democratic Party have expressed concern about the expense and other aspects of their Leadership proposed health care reform proposals. These Democrats in Congress generally the members of Congress whose votes are most likely to be impacted by public input and feedback generally and from voters in their districts and contributors specifically.

In the House of Representatives, these members likely are the “Blue Dog Democrats.” Read about Blue Dog Democrats here.

The fiscal conservatism of Blue Dog Democrats makes them more likely to listen to concerns about the cost and other concerns relating to the health care reform bills touted by the Democrat Leadership in the House and Senate. In fact, many Blue Dog Democrats already are speaking out about their concerns about the cost and other aspects of the Bill.

Contact from voters and contributors in their districts and others could make a major difference in the ability that the House Democrat Leadership needs to pass their Bill. Immediately contacting these members and getting others – particularly voters and contributors in the districts that elect these members – is one of the most important steps that concerned Americans can do to position their concerns to be heard.

For most concerned voters, telephone or fax contact is the best means to convey these messages. To minimize spam, most members only accept e-mail submitted through their website links. Security concerns can delay receipt of written correspondence for weeks.

For persons interested in making their voices heard and sharing information with others who wish to do the same, the following contact information may be of interest:

The number of the Capital Switchboard is 202-224-3121.

The Blue Dog Leadership Team and there telephone and fax numbers are:

Rep. Stephanie Herseth Sandlin (SD), Blue Dog Co-Chair for Administration, Telephone: 202.225.2801 , Fax: 202.225.5823

Rep. Baron Hill (IN-09), Blue Dog Co-Chair for Policy,Telephone: 202-225-4031, Fax: (202) 226-6866

Rep. Charlie Melancon (LA-03), Blue Dog Co-Chair for Communications, Telephone: 202-225-4031, Fax: (202) 226-3944

Rep. Heath Shuler (NC-11), Blue Dog Whip, Telephone: 202-225-6401, Fax: (202) 226-6422

The Blue Dog Members and their telephone numbers are :

Altmire, Jason (PA-04),(202)225-2565
Arcuri, Mike (NY-24), (202)225-3665
Baca, Joe (CA-43),(202)225-6161
Barrow, John (GA-12), (202) 225-2823
Berry, Marion (AR-01), (202) 225-4076
Bishop, Sanford (GA-02), (202) 225-3631
Boren, Dan (OK-02), (202) 225-2701
Boswell, Leonard (IA-03), (202) 225-3806
Boyd, Allen (FL-02), (202) 225-5235
Bright, Bobby (AL-02), (202) 225-2901
Cardoza, Dennis (CA-18), (202) 225-6131
Carney, Christopher (PA-10), (202) 225-3731
Chandler, Ben (KY-06), (202) 225-4706
Childers, Travis (MS-01), (202) 225-4306
Cooper, Jim (TN 5^th), (202) 225-4311
Costa, Jim (CA 20^th), (202) 225-3341
Cuellar, Henry (TX 28^th), (202) 225-1640
Dahlkemper, Kathleen A. (PA 3^rd), (202) 225-5406
Davis, Lincoln (TN 4^th),(202) 225-6831
Donnelly, Joe (IN 2^nd), (202) 225-3915
Ellsworth, Brad (IN 8^th), (202) 225-4636
Giffords, Gabrielle (AZ 8^th), (202) 225-2542
Gordon, Bart (TN 6^th), (202) 225-4231
Griffith, Parker (AL 5^th), (202) 225-4801
Harman, Jane (CA 36^th), (202) 225-8220
Herseth Sandlin, Stephanie (SD At Large), (202) 225-2801
Hill, Baron P. (IN 9^th), (202) 225-5315
Holden, Tim (PA 17^th), (202) 225-5546
Kratovil, Frank Jr. (MD 1^st), (202) 225-5311
McIntyre, Mike (NC 7^th), (202) 225-2731
Marshall, Jim (GA 8^th), (202) 225-6531
Matheson, Jim (UT 2^nd), (202) 225-3011
Melancon, Charlie (LA 3^rd), (202) 225-4031
Michaud, Michael H. (ME 2^nd), (202) 225-6306
Minnick, Walt (ID 1^st), (202) 225-6611
Mitchell, Harry E. (AZ 5^th), (202) 225-2190
Moore, Dennis (KS 3^rd), (202) 225-2865
Murphy, Patrick J. (PA 8^th), (202) 225-4276
Nye, Glenn C. (VA 2^nd), (202) 225-4215
Peterson, Collin C. (MN 7^th), (202) 225-2165
Pomeroy, Earl (ND At Large), (202) 225-2611
Ross, Mike (AR 4^th), (202) 225-3772
Salazar, John T. (CO 3^rd), (202) 225-4761
Sanchez, Loretta (CA 47^th), (202) 225-2965
Schiff, Adam B. (CA 29^th), (202) 225-4176
Scott, David (GA 13^th), (202) 225-2939
Shuler, Heath (NC 11^th), (202) 225-6401
Space, Zachary T. (OH 18^th), (202) 225-6265
Tanner, John S. (TN 8^th), (202) 225-4714
Taylor, Gene (MS 4^th), (202) 225-5772
Thompson, Mike (CA 1^st), (202) 225-3311
Wilson, Charles (OH-06), (202) 225-5705

You and others also are invited to join the discussion about these and other health care reform proposals and concerns by:

Joining the Coalition for Responsible Health Care Reform Group on Linkedin and registering to receive these updates here; and
E-mailing Cstamer@cttlegal.com to participate in the Coalition for Patient Empowerment.

Curran Tomko Tarski LLP Can Help

If your business needs assistance monitoring or providing input on health care reform or other human resources, employee benefit or compensation legislation or regulations, or auditing, updating or defending its health or other employee benefit, human resources, or compensation arrangements, or responding to employee benefits, employment or compensation related charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employer and employee benefit plan sponsors, administrators and others about labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising and defending these and other clients in labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the ABA RPTE Employee Benefit Plans and Other Compensation Group, a member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has extensive experience with health and retirement, work force and other employee benefit and employment matters. She is nationally and internationally known for her innovative work with employers, associations, churches, insurers and others to develop health benefit, onsight medical, wellness and other employee benefit and employment arrangements, as well as her involvement in health care, pension and other public policy advocacy.

More Information & Resources

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

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Posted by Cynthia Marcotte Stamer

Nomination of Phyllis Borzi as Assistant Secretary of Labor for the Employment Benefits Security Administration Unanimously Confirmed

July 16, 2009

On Friday (July 10, 2009), the U.S. Senate unanimously confirmed the nomination of attorney Phyllis Borzi as Assistant Secretary of Labor for the Employee Benefits Security Administration.

Highly respected by both union and non-union employee benefit plan practitioners and leaders, Ms. Borzi brings to her position an extensive resume of employee benefit experience including extensive governmental and private practice experience. Her private practice employee benefit experience has encompassed extensive representation of union and other employee benefit plans, their sponsors, fiduciaries and others.

In addition to her extensive private sector experience, Ms. Borzi also has extensive Congressional and other governmental experience. Until January 1995, Ms. Borzi served as pension and employee benefit counsel for the U.S. House of Representatives, Subcommittee on Labor-Management Relations of the Committee on Education and Labor. She was on the Committee staff for 16 years.

In 1993, in connection with the Presidential Task Force on Health Care Reform, chaired by former First Lady Hillary Rodham Clinton, Ms. Borzi served on working groups dealing with insurance reform, workers’ compensation and employer coverage. She holds a Master of Arts degree in English from Syracuse University and received her law degree from Catholic University Law School, where she was editor-in-chief of the law review.

Ms. Borzi is a charter member and a former President of the American College of Employee Benefit Counsel. She served as a member of its Board of Governors from 2000-2008. Ms. Borzi has served as a member of the Advisory Board of the BNA Pension & Benefits Reporter (and a former co-chair of the Board) and a former member of the Advisory Committee of the Pension Benefit Guaranty Corporation.

Ms. Borzi has also served on the Advisory Board of the Pension Research Council, The Wharton School, The University of Pennsylvania and a member of the Board of the Women’s Institute for a Secure Retirement (WISER).

In 2008, Ms. Borzi was appointed by the U.S. District Court for the Northern District of Ohio to serve as a public member of the Administrative Committee for the Goodyear VEBA, an entity that was judicially established pursuant to a negotiated settlement agreement between the company, the Steelworkers and class representatives for the Steelworkers retirees.

Ms. Borzi has published numerous articles on ERISA, health care law and policy and retirement security issues and is a frequent speaker on programs sponsored by legal, professional, business, consumer and state and local governmental organizations.

An active member of the American Bar Association throughout her career, Ms. Borzi surrenders her post as chair of the ABA’s Joint Committee on Employee Benefits (representing the Health Law Section).

Curran Tomko Tarski LLP Attorneys Can Help

Curran Tomko Tarski LLP Labor & Employment Practice Group Chair, Cynthia Marcotte Stamer, and other members of Curran Tomko Tarski LLP has extensive experience advising employer and other plan sponsors, benefit plans and their fiduciaries about a diverse range of domestic and international health and managed care, pension, deferred compensation and other ERISA and employee benefit and employment compliance, administration, operational and public policy matters. A member of the Joint Committee on Employee Benefits (representing the Real Property, Trusts and Estates Section), Ms. Stamer is the current Vice-Chair and 2009-2010 Chair Elect of the RPTE Employee Benefits and Compensation Committee.

If your organization needs assistance with employee benefits and ERISA, compensation, managed care or other labor and employment, compensation or benefit concerns or regulations, please contact Ms. Stamer here or at (214) 270-2402; or your favorite Curran Tomko Tarski LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Helpful Resources & Information

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 Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to cstamer@cttlegal.com or registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here. Also stay abreast of emerging internal controls and compliance challenges by registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.com.

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Posted by Cynthia Marcotte Stamer

CMS Hospital Compare Website Seeks To Help Consumers Evaluate Hospital Quality & Make More Informed Healthcare Choices

July 14, 2009

CMS Hospital Compare Website Seeks To Help Consumers Evaluate Hospital Quality & Make More Informed Healthcare Choices

Employers, health plans and other patient empowerment advocates should review and communicate to employees and others within the patient community newly expanded health care quality outcome data recently included on the Hospital Compare Website, a Centers for Medicare & Medicaid Services (CMS) internet resource providing various hospital quality data on more than 4000 U.S. hospitals.

By sharing data through Hospital Compare, CMS joints the efforts of many employers, health plans and others in seeking to empower conumers with hospital and other quality data. The initiative is one of many government and private efforts to promote quality and reduce costs by tapping the power of health care consumers.

According to CMS, Hospital Compare now provides “better” data on the previously posted mortality rates for individual hospitals, as well as new data on 30-day readmissions for heart attack, heart failure, and pneumonia. Previously, Hospital Compare had provided only mortality rates for these three conditions.

The Hospital Compare Web site will show a hospital’s mortality or readmissions rate is “Better than,” “No different from,” or “Worse than” the U.S. national rate. This data information includes each hospital’s risk-standardized mortality rate (RSMR), an estimate of the rate’s certainty (also known as the interval estimate), and the number of eligible cases for each hospital. By posting hospital RSMRs, interval estimates, and the number of eligible cases, CMS is giving consumers and communities additional insight into the performance of their local hospitals in hopes that this will prompt all hospitals to work toward achieving the level of the top-performing hospitals in the country.

Reducing the rate of hospital readmissions to improve quality and achieve savings are key components of President Obama’s health care reform agenda. Administration officials indicate that hospital readmissions are reducing the quality of health care while increasing hospital costs. CMS officials hope posting of this expanded health care outcome data will help consumers make more informed health care choices.

According to CMS data, on average 1 in 5 Medicare beneficiaries who are discharged from a hospital today will re-enter the hospital within a month. Hospital Compare data show that for patients admitted to a hospital for heart attack treatment, 19.9 percent of them will return to the hospital within 30 days, 24.5 percent of patients admitted for heart failure will return to the hospital within 30 days, and 18.2 percent of patients admitted for pneumonia will return to the hospital within 30 days. Both the mortality and the readmissions measures have been endorsed by the National Quality Forum (NQF) and are supported by the Hospital Quality Alliance (HQA). CMS says both sets of measures are risk-adjusted and take into account previous health problems to “level the playing field” among hospitals and to help ensure accuracy in performance reporting.

“Providing readmission rates by hospital will give consumers even better information with which to compare local providers,” said Charlene Frizzera, CMS Acting Administrator. “Readmission rates will help consumers identify those providers in the community who are furnishing high-value healthcare with the best results.”

CMS has been tracking selected hospital outcomes data since 2007, when Hospital Compare debuted 30-day mortality rates for heart attack and heart failure. Thirty-day mortality rates for pneumonia were added to the Website in 2008. Hospital Compare also includes 10 measures that capture patient satisfaction with hospital care, 25 process of care measures, and two children’s asthma care measures. The site also features information about the number of selected elective hospital procedures provided to patients and what Medicare pays for those services.

According to CMS, public reporting of these and other measures is intended to empower patients and their families with information they need to engage their local hospitals and physicians in active discussions about quality of care. CMS officials assert that all hospitals, regardless of their readmission and mortality rates, should use the data available in these free, detailed reports to find ways to continually improve the care they deliver.”

This year, CMS has changed the way it calculates the mortality data to provide even better information to consumers. In 2007 and 2008, Medicare used only one year of claims data to compute mortality, while the rates added to the Web site today encompass three full years of claims data (from July 1, 2005 – June 30, 2008). Although this means that consumers cannot compare data from last year’s rate with this year’s rate, CMS officials believe the expanded data set should provide a clearer picture of how well hospitals are performing.

Using the three-year data method, CMS estimates that the national 30-day mortality rate for patients originally admitted for heart attack care is 16.6 percent. For heart failure patients, the national 30-day mortality rate is 11.1 percent, and for pneumonia patients the national rate is 11.5 percent.

According to CMS, Hospital Compare readmissions and mortality measures are risk-adjusted measures and were developed by a team of clinical and statistical experts from Yale and Harvard Universities under the direction of CMS and are endorsed by the NQF. The model CMS uses to assess hospital readmissions and mortality rates is based on claims data and has been validated by models based on clinical data. It takes into account medical care received during the year prior to each patient’s hospital admission, as well as the number of admissions at each hospital. The model uses this information to adjust for differences in each hospital’s patient mix, so that hospitals that care for older, sicker patients are on a “level playing field” with those whose patients would be expected to be at less risk of dying within 30 days of admission.

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health care providers and payers establish, administer health care quality assurance and other programs. Former Chair of the American Bar Association Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer advises and represents health care payers and providers with a diverse array of quality assurance and other legal and operational risk management initiatives and writes and speaks extensively on these issues. Her many publications and presentations on managed care and other health plan and health care quality matters include “Practical Solutions for Achieving Clinical Quality & Financial Efficiency in an Evolving Health Care Arena,” “Building Your Patient Empowerment Toolkit,” “Selected Thoughts About Medical Judgment-Based Coverage Decisions Under ERISA-Covered Health Plans After Davila” and numerous other quality improvement and patient empowerment workshops for employee and patient groups, health plans, health care providers, medical societies, government officials, community organizations others. You can get more information about her experience here.

If you need assistance with patient empowerment and consumer directed health care, health care quality and utilization and other health benefit and health education concerns, wish to inquire about arranging for patient empowerment, HIPAA or other compliance audit or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney.

Other Helpful Resources & Other Information

We hope that this information is useful to you. If you found these updates of interest, you also be interested in reviewing one or more of the following other recent articles published on our electronic Solutions Law Press HR & Benefits Update publication available here, registering to receive those updates , or both. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law HR & Benefits Update here and be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Ms. Stamer, her experience, briefings, speeches and other credentials here.

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

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Posted by Cynthia Marcotte Stamer

President Obama Extends Federal Long-Term Care & Sick Leave Benefits To Same-Sex Domestic Partners

June 19, 2009

Domestic partners of federal government workers now qualify for enrollment in dependent benefits under certain federal employee benefit plans but not federal health and pension benefits under a presidential memorandum signed by President Obama June 17, 2009. The memorandum also signals that President Obama anticipates extending other federal benefits to same-sex domestic partners later this year.

The presidential memorandum calls for allowing the domestic partners of federal employees to be added to the long-term care insurance program and permitting employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children. However, the presidential memorandum did not extend federal health and pension benefits to same-sex domestic partners. Instead, the presidential memorandum:

Orders all federal agencies and departments within the next 90 days to assess their other existing benefits to determine their authority to extend other existing benefits to same-sex domestic partners of their Federal employees and
Directs the Office of Personnel Management to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

You can read the presidential memorandum here.

Over the past decade, public and private employers increasingly have extended the availability of domestic partner benefits. This trend is picking up more speed as various states have begun recognizing same-sex marriages or other official domestic partnership relationships and/or prohibiting discrimination in employment and other business transactions on the basis of sexual relationship. The provision of these benefits continues to raise many tax and other operational issues, however. Accordingly, businesses should seek the advice of competent legal counsel concerning these obligations.

Additional Resources & Information

We hope that this information is useful to you. If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

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Posted by Cynthia Marcotte Stamer

Democrats Introduce Health Care Reform Legislation, Work To Fast Track Enactment

June 11, 2009

Coalition For Responsible Health Care Reform Founded To Help Concerned Americans Respond

Americans concerned about plans of President Obama and Congressional Democrats to enact comprehensive health care reform this year must speak up now.

Senator Edward M. Kennedy yesterday (June 9, 2009) circulated a 625 page proposal to radically reform the U.S. health care system. The latest draft of the “Affordable Health Choices Act” (the “Act”) details the comprehensive health care reforms that President Obama and Democrats in Congress propose to enact before year end.

President Obama and key Congressional Democrats are moving quickly to enact their vision for “comprehensive health reform” this year. The Act circulated yesterday by Senator Kennedy would radically change the U.S. health care system in enacted as currently proposed.

Consistent with announced plans by President Obama and key Congressional Democrats to enact “comprehensive health care reform” this year, Democratic leaders in Congress are rushing to enact this legislation well before year end. In furtherance of plans to fast track enactment of the Act, the Senate Committee on Health, Education, Labor and Pensions (HELP) chaired by Senator Kennedy will hold a hearing on the Act this week in anticipation of meetings to mark up of the Act on Tuesday, June 16 at 2:30 p.m. in Russell 325.

The Act, as proposed, would make sweeping changes to the U.S. health care system and radically expand the involvement of government in the delivery and financing of health care. Among other things, the Act as proposed would:

Establish government provided “Gateway” health care coverage programs to provide coverage for Americans not insured under qualifying employer or other privately run “qualified health plan” to be financed in part through surcharges on private health plans and health insurers and other taxes and assessments and in part through premiums on enrolled individuals
Require that Americans participating in the Gateway health care coverage programs be offered the opportunity to enroll in at least one “public health insurance option”
Require Americans to chose either to enroll in a government run Gateway health program or enroll in qualifying coverage under a privately run qualified health plan
Impose sweeping new mandates on employer and union-sponsored group health plans and insurers
Impose newly created taxes on individuals that fail to maintain enrollment in health coverage under either a Gateway health program or a private qualified health plan
Tax and/or eliminate the deductibility of health coverage premiums and certain other amounts paid by certain employers and employees
Impose new federal mandates for health care providers, health plans and health insurers relating to the quality standards, the use of health care technology and other matters
Grant federal regulators sweeping authority to define what qualifies as appropriate health care and health care coverage, the health care services that qualify for health care coverage and the payment and delivery of health care services.

You can review a copy of currently proposed provisions of the 615 page Act here.

Individuals concerned about these and other proposed health care reforms must act immediately to become familiar and share their input on the proposals.

Assistance Monitoring & Responding To Health Care Reform Proposals

If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

Register for this resource at the link above;
Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input;
Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

You can register to receive future updates on legislative and regulatory health care reform proposals and other related information by registering for this resource or access other publications by Ms. Stamer and access other helpful resources here.

Long-time health policy advocate and advisor Cynthia Marcotte Stamer has more than 22 years of experience advising and assisting clients to evaluate and respond to health care reform proposals and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws. Former Chair of the American Bar Association’s Managed Care & Insurance Section, Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally. Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally. In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally. As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues. Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association. Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

Ms. Stamer also serves in a number of professional leadership roles including the leadership council of the ABA Joint Committee on Employee Benefits, Vice Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

Additional Resources & Information

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

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Posted by Cynthia Marcotte Stamer

Congressional Committee To Hold June 4 Hearing On Expanding Veterans’ Employment Rights

June 4, 2009

Employers will face more changes to their responsibilities to employees serving or returning from military service and their families if Congress adopts certain proposed legislation scheduled for hearings by members of the House Committee on Veterans Affairs this week. Concerned businesses should communicate any concerns to members of these committees and other Congressional contacts as soon as possible.

As Congress continues to consider additional expansions to existing federal veteran re-employment rights and retraining programs, the House Committee on Veterans Affairs is holding hearings on several pending proposals. On Thursday, June 4, 2009, for instance:

The Subcommittee on Health of the House Committee on Veterans Affairs plans to mark up H.R. 1211, Women Veterans Health Care Improvement Act and then hold a hearing on “Meeting the Needs of Family Caregivers of Veterans” beginning at 10:30 a.m. Eastern in Room 334 Cannon House Office Building; and
The Subcommittee on Economic Opportunity of the House Committee on Veterans Affairs plans to hear testimony about a proposal to extend existing military employment leave and reemployment rights to individuals called to full-time National Guard duty set forth in H.R. 1879, the National Guard Employment Protection Act of 2009, at a hearing to consider several pieces of legislation scheduled to begin at 1 p.m. on Thursday, June 4, 2009 See Hearing Schedule.

The June 4 hearings are the latest in a series of Congressional activities hearings focusing on promoting employment and health care rights for individuals serving or returning from service in the military and their families. In addition to H.R. 1879, other legislation scheduled for mark up during the Thursday afternoon hearing includes:

H.R. 1037, Pilot College Work Study Programs for Veterans Act of 2009 would direct the Secretary of Veterans Affairs to conduct a five-year pilot project to test the feasibility and advisability of expanding the scope of certain qualifying work-study activities under title 38, United States Code;
H.R. 1098, Veterans’ Worker Retraining Act of 2009 would increase the amount of educational assistance payments made by the Secretary of Veterans Affairs to individuals pursuing an apprenticeship or on-job training under: (1) the Montgomery GI Bill educational assistance program; (2) the Post-Vietnam Era Veterans educational assistance program; (3) the Survivors and Dependents educational assistance program; and (4) the Selected Reserve Montgomery GI Bill educational assistance program.
H.R. 1172, Pat Tillman Veterans’ Scholarship Initiative would direct the Secretary of Veterans Affairs to include on the Internet website of the Department of Veterans Affairs a list of organizations that provide scholarships to veterans and their survivors;
H.R. 1821, Equity for Injured Veterans Act of 2009 would increase vocational rehabilitation and employment benefits for certain veterans and provide child care reimbursement for certain rehabilitating single veterans; and
H.R. 2180, would amend title 38, United States Code, to waive housing loan fees for certain veterans with service-connected disabilities called to active service.

If you need help responding to these proposals or with other questions relating to compliance or risk management under other federal and state military leave and veterans rights laws or regulations, please contact Curran Tomko Tarski LLP Labor & Employment Practice Group Chair, Cynthia Marcotte Stamer at (214) 270.2402 or cstamer@cttlegal.com. Board Certified In Labor and Employment Law by the Texas Board of Legal Specialization, “Cindy” works with businesses, speaks and publishes extensively on these and other labor and employment, employee benefit, internal controls and compensation matters.

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Posted by Cynthia Marcotte Stamer

New IRS’ 2009 “Dirty Dozen” Tax Scams List Invites Whistleblower Claims Against Employers, Others Engaged In Listed Transactions

April 14, 2009

The release yesterday (April 13, 2009) by the Internal Revenue Service of its 2009 “Dirty Dozen” Tax Scams List reminds businesses of the need to act to minimize exposures to tax related whistleblower or other retaliation claims by employees and other service providers that allege the potential involvement of the business in tax scams or other improper tax transactions.

Businesses face whistleblower, tax fraud prosecution, additional tax and penalty liability and other sanctions for involvement in tax shelters or other tax schemes. Employees and other service provider reports to the Internal Revenue Service (IRS) are the leading means through which the IRS identifies and proves fraudulent tax activities.

Yesterday’s IRS announcement of its 2009 “dirty dozen” list of tax scams heightens whistleblower risks for businesses by encouraging employees and others who may have knowledge of a business or other taxpayer’s involvement in these or other prohibited tax practices to report their suspicions to the IRS and sharing instructions on how to report suspected tax fraud to the IRS as a whistleblower. As part of these instructions, the announcement notes that “[w]histleblowers also may provide allegations of fraud to the IRS and may be eligible for a reward.”

The 2009 “dirty dozen” list of tax scams warns businesses about getting involved in 12 tax transactions that the IRS views as likely to create tax fraud and whistleblower risks. The tax schemes that made the 2009 Dirty Dozen List include:

Hiding Income Offshore
Filing False or Misleading Forms
Abuse of Charitable Organizations and Deductions
Return Preparer Fraud
Making Frivolous Arguments
Making False Claims for Refund and Requests for Abatement
Abusive Retirement Plans
Disguised Corporate Ownership
Zero Wages
Misuse of Trusts
Fuel Tax Credit Scams

Taxpayers participating in the 2009 Dirty Dozen Tax Scams and other tax transactions listed as tax scams by the IRS risk exposure to additional taxes and penalties, prosecution for tax fraud, and potential whistleblower claims. The Dirty Dozen list singles out for special attention some of the many tax transactions that the IRS views as tax shelters or tax fraud. Depending on the nature of a business and its tax and compensation activities, businesses also may need to be concerned about scrutiny by the IRS for involvement in various other types of transactions that the IRS has identified as suspect. The IRS is urging U.S. businesses and other taxpayers to avoid participation in these common schemes.

Businesses engaged or accused of engaging in these or other transactions listed as tax scams or tax shelters by the IRS should exercise caution to confirm the appropriateness of the proposed transaction, to document their investigation of allegations of improper tax activities. For profit and non-profit businesses should include appropriate tax compliance oversight in their internal controls and federal sentencing guideline compliance programs. Businesses should review their activities in light of lists of IRS abusive transactions, should evaluate whether any of their transactions may be subject to scrutiny by the IRS, and take other appropriate steps to mitigate their exposure to prosecution for tax fraud, to tax related whistleblower liability and other risks. Businesses also should exercise care when dealing with employees or service providers who make allegations that the business may be involved in improper tax activities. Businesses also need to be prepared to demonstrate that they have not retaliated against individuals who report suspected tax fraud. The best defense to retaliation claims is a consistent, well documented legitimate performance and discipline record. Businesses should strengthen and consistently apply their employee performance and discipline processes to improve performance and deter whistleblower or other retaliation judgments. As part of this process, businesses also should adopt and enforce policies requiring employees and other service providers to report suspected tax or other compliance concerns, administer documented processes for receiving and investigating allegations of potential fraud or other noncompliance, and should document their conclusions and any corrective actions in response to these investigations.

Cynthia Marcotte Stamer, and other members of Curren Tomko and Tarski LLP are experienced with assisting establish and administer employment, corporate compliance, internal and external fraud and other controls; to investigate potential fraud or other misconduct; to defend employment, whistleblower, Federal or state criminal or civil investigations, audits and prosecutions and to address other employment, employee benefits and corporate compliance matters. If your organization needs assistance with assessing or managing its risk management and compliance responsibilities or liabilities under health care, employment, environmental, antitrust, securities or other federal or state laws, wishes to inquire about compliance audit or training or other services; or would like to review or engage and experience of Ms. Stamer, or other Curren Tomko Tarski LLP attorneys, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or see CTTLegal.com or CynthiaStamer.com.

More Information

We hope that this information is useful to you. You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources at CynthiaStamer.com For additional information about Ms. Stamer and her experience, see http://cynthiastamer.com/human_resources.asp or contact Ms. Stamer directly. If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog at https://slphrbenefitsupdate.wordpress.com.

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Posted by Cynthia Marcotte Stamer

Businesses Face Stepped Up ADA Public Accommodation Enforcement Risks

April 7, 2009

A federal Fair Housing Act lawsuit recently filed by the U.S. Justice Department against a large Dallas-based construction and development company and a series of its other releases signal that Department of Justice is gearing up for stepped up enforcement of the Public Accommodations and other provisions of the Americans With Disabilities Act. To defend against this risk, all U.S. businesses should evaluate the adequacy of their existing business practices.

On Tuesday, March 10, 2009, JPI Construction L.P. (JPI) and six JPI-affiliated companies in U.S. District Court in Dallas for failing to provide accessible features allegedly required by the Fair Housing Act and the Americans with Disabilities Act at multi-family housing developments in Texas and other states. Today, the Justice Department followed up by

The Justice Department’s proclamation in its announcement of its filing of the suit against JPI that “Fighting illegal housing discrimination is a top priority” affirms this commitment under the Fair Housing Act. See “Justice Department Sues Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination, U.S. Justice Department (March 10, 2009) at http://www.usdoj.gov/opa/pr/2009/March/09-crt-187.html. According to the complaint, the JPI defendants failed to design and construct accessible dwelling units and public and common use areas at Jefferson Center Apartments in Austin, Texas; Jefferson at Mission Gate Apartments in Plano, Texas; and additional multi-family housing complexes in other states. The complaint alleges certain complexes designed and constructed by the JPI defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbeque grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The Justice Department complaint asks the court to order monetary damages to victims of the alleged discrimination, to issue a court order requiring the defendants to modify the complexes to bring them into compliance with federal law, to prohibit future discrimination by the JPI defendants, and to assess civil penalties.

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Posted by Cynthia Marcotte Stamer

Retaliation For Filing HIPAA Complaint Recognized As Basis For State Wrongful Discharge Claim

April 3, 2009

In a March 19, 2009 ruling, the U.S. District Court for the Northern District of Texas recently recognized that the Texas Whistleblower Act prohibits health care organizations run by the State of Texas from retaliating against employees for making good faith complaints of violations of the Privacy Rules of the Health Insurance Portability Act (“HIPAA”). Nevertheless, the court dismissed the wrongful discharge lawsuit brought by a former Terrell State Hospital security guard who alleged he was wrongfully fired for complaining to the U.S. Department of Health and Human Services Office of Civil Rights (“OCR”) that the Hospital violated the HIPAA Privacy Rules because the plaintiff had failed to present sufficient proof that he was terminated in retaliation for filing a HIPAA complaint.

Illustrative of a growing number of state law retaliatory discharge claims brought be employees claiming to have been retaliated against for complaining about alleged violations of HIPAA’s Privacy Rules, Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009), involved claims made by plaintiff Anthony Faulkner (“Faulkner”) that the Texas Department of State Health Services (“DSHS”); Terrell State Hospital; Texas DSHS Commissioner David L. Lakey, M.D.; Terrell State Hospital Superintendent Fred Hale; and Terrell State Hospital Risk Management Coordinator Clent Holmes, R.N. violated the Whistleblower Act and the First and Fourteenth Amendments by firing him seven days after he complained to OCR that Terrell State Hospital violated the HIPAA Privacy Rule by leaving admissions logs containing patient names and admission dates in a public area.

The Texas Whistleblower Act generally prohibits a state or local governmental entity from terminating or taking any other adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. See Tex. Gov’t Code § 554.002(a). While the Court affirmed that the Texas Whistleblower Act permits a public employee of the State of Texas discharged or otherwise retaliated against for complaining in good faith to OCR that his public employer or its employee violated the HIPAA Privacy Rules, the Court nevertheless granted summary judgment to the defendants.

According to the court, Faulkner’s failure to introduce evidence rebutting defendant’s affidavit that he was terminated for repeatedly violating rules requiring him to report suspected abuse of patients precluded him from proving his termination was in retaliation for his filing of the HIPAA complaint. Meanwhile, the court also ruled that Faulkner’s claims against the individual defendants should be dismissed as the Whistleblower Act only creates a cause of action against governmental entities and not their employees. Having found Faulkner’s constitutional claims also without merit, the District Court granted the defendant’s motion for summary judgment.

While the defendants were able to overcome Faulkner’s retaliatory discharge claim, the decision highlights the need for health care providers and other HIPAA covered entities to take appropriate precautions to defend against potential wrongful discharge, retaliation or other claims by employees or other service providers for complaining of possible HIPAA violations or for attempting to exercise other HIPAA-protected rights. HIPAA covered entities now should avoid engaging in actions that might unnecessarily fuel claims of retaliation. They also should carefully document and preserve evidence necessary to demonstrate the legitimacy of their disciplinary actions on an ongoing basis.

We hope you found this information helpful. If your organization needs assistance with understanding or managing its responsibilities or liabilities under HIPAA or other health care or employment laws or wishes to inquire about HIPAA training or other services and experience of Cynthia Marcotte Stamer, please contact Ms. Stamer via e-mail at Cstamer@Solutionslawyer.net or by telephoning Ms. Stamer at 469.767.8872. You also can review other helpful resources and register to receive other updates at CynthiaStamer.com.

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Posted by Cynthia Marcotte Stamer

Employers Must Begin using New I-9 Form April 3, 2009; Government Contractor E-Verify Rules Take Effect May 21, 2009

April 2, 2009

U.S. employers must begin using the revised U.S. Citizenship and Immigration Services (USCIS) Employment Eligibility Verification Form known as the I-9 (Form I-9) on April 3, 2009. Meanwhile, certain federal contractors and subcontractors also must prepare to comply with impending requirements to use USCIS E-Verify when hiring employees scheduled to take effect May 21, 2009.

New Form I-9

The use of the new Form I-9 is required under an interim rule published by USCIS in December 2008. The interim rule also changes the types of acceptable identity and employment authorization documents employers can accept from new hires and prohibits employees from using expired identification documents to verify their work eligibility beginning April 3, 2009. Employers will be required to use the new Form I-9 and to secure documentation of proof of eligibility to work in accordance with the revised rules contained in the interim rule for all new hires and to reverify any employee with expiring employment authorization in accordance with the interim regulations beginning on April 3, 2009.

Employers can download a copy of the new Form I-9 at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf. The interim regulations are available for review at http://edocket.access.gpo.gov/2008/E8-29874.htm. USCIS presently is updating the Handbook for Employers, Instructions for Completing the Form I-9 (M-274).

The new Form I-9 replaces the June 5, 2007 edition of the Form I-9 (the Old Form I-9), which will not be valid for use after April 2, 2009. A big change in the new Form I-9 requirements is that expired documents cannot be accepted as proof of eligibility to work. All documents presented during the Form I-9 completion process now must be unexpired. The new Form I-9 and interim regulations also add and remove certain documents to the list of documents that employers can accept of proof of identity and/or eligibility to work in the U.S.

The interim rule originally was scheduled to take effect on Feb. 2, 2009. The Obama Administration extended the effective date to April 3, 2009 under a directive issued in January.

Federal Contractor E-Verify Rule Scheduled To Take Effect May 21, 2009

Certain federal contractors and subcontractors also need to prepare to comply with a new federal rule that will require them to use E-Verify to verify the employment eligibility of new hires scheduled to take effect May 21, 2009. The rule will only affect federal contractors who are awarded a new contract after May 21st that includes the Federal Acquisition Regulation (FAR) E-Verify clause. Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Interested persons can review the final regulation and read frequently asked questions about this new rule on the internet at the following cites:

ü Final Regulation at http://edocket.access.gpo.gov/2008/E8-26904.htm

ü Frequently Asked Questions at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

If you have questions or concerns about the matters discussed in this publication or other human resources, employee benefits or compensation matters, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or publication, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to Cstamer@Solutionslawyer.net. .

More Information

We hope that this information is useful to you. You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and other helpful resources or additional information about Ms. Stamer at CynthiaStamer.com or by contacting Ms. Stamer directly. If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog at https://slphrbenefitsupdate.wordpress.com.

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Posted by Cynthia Marcotte Stamer

Supreme Court’s Broad Definition Of Retailiation Requires Employers To Exercise Care

March 20, 2009

Businesses that fire or discipline employees increasingly face retaliation claims by disgruntled workers. A host of federal and state employment and other laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain rights legally protected rights. The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant viligence to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities.

In its February 2, 2009 unanimous Crawford decision, the Supreme Court ruled that the anti-retaliation provisions of Title VII protect employees against retaliation for giving a “disapproving account” of unlawful behavior when responding to questions asked during the employer’s investigation of a sexual harassment discrimination, even if the employee took no further overt action to complain about, seek to remedy or stop the misconduct..

Vicky Crawford sued the employer under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice” under Title VII. The Crawford case arose from statements Ms. Crawford made in response questions addressed to her as part of her employer’s investigation of sexual harassment rumors. Asked if she’d witnessed any inappropriate behavior by a supervisor, Ms. Crawford answered told the employer about a series of harassing acts by the supervisor toward herself. Besides reporting her experience in reply to employer questions during the investigation, however, Ms. Crawford did not file a sexual harassment complaint or otherwise report her alleged sexual harassment experience to the employer. Following the interview, the employer did not discipline the supervisor. However, the employer subsequently fired Ms. Crawford and two other employees who also reported being harassed by the supervisor. As part of its defense, the employer argued that Ms. Crawford’s report during the course of the investigation did not qualify as “opposition” prohibited under Title VII.

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive.

Applying the ordinary meaning of “oppose,” the Supreme Court unanimously found that “When an employee communicates to her employer a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Accordingly, the Supreme Court ruled that protected opposition under Title VII includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct.

In explaining its conclusions the Supreme Court stated that a contrary rule that would require a worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage. For example, the Court explained, one can “oppose capital punishment” without doing anything active to end it. The Supreme Court rejected as “freakish” an interpretation of “opposition” that would protect an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

While concurring in the unanimous opinion, Justices Alito and Thomas cautioned against reading that opinion too broadly. Their opinion clarifies that in their view, covered opposition must be “active and purposive” to qualify as protected. Consequently, they warned that the Court’s opinion should not be read to suggest that Title VII protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.

Although the report by Ms. Crawford involved her notification to the employer that she too may have been sexually harassed, the implications of the Crawford decision reach more broadly. The decision illustrates the need for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint. Businesses should listen carefully when conducting investigations, employee counseling and discipline meetings, and exit interviews with an eye out for the need to investigate potential legal violations, defend against retaliation charges, or both. Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure, the Crawford decision reminds businesses not to overestimate the protection afforded by the establishment of formal reporting procedures. It also illustrates the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exist interview. At the same time, businesses also must evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights such as taking a protected leave or the like.

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Posted by Cynthia Marcotte Stamer

DOL Releases Stimulus Bill Model COBRA Notices, Other Guidance

March 19, 2009

The U.S. Department of Labor (“DOL”) this morning (March 19, 2009) posted Model Notices and other additional guidance about temporary requirements added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“Stimulus Bill”). Employers, health plan administrators, and health insurers involved in the sponsorship or administration of COBRA-covered group health plans should consult with counsel about the suitability of using the Model Notices to provide required notifications of the new Stimulus Bill COBRA rules and other steps necessary to comply with the new requirements. Compliance with the Stimulus Bill COBRA rules is mandatory for all COBRA-covered group health plans and certain other arrangements including group health plans sponsored by businesses in bankruptcy where the entity or a commonly controlled or affiliated entity continues to maintain a group health plan.

The new guidance posed today includes:

Various Model Notices
New FAQs for Employers on the COBRA Premium Reduction
Expanded FAQs for Employees on the COBRA Premium Reduction
Updated FAQs for Employees on General COBRA Provisions

While the Model Notices and other guidance provides helpful insights about the new requirements, many group health plan sponsors, administrators and fiduciaries are likely to find it necessary or desirable to specifically tailor the notifications and other procedures they provide to more clearly communicate the workings of the new requirements as they relate to their specific plans so as to minimize administrative burdens of compliance and fiduciary risks.

The Stimulus Bill provisions that took effect on February 17, 2009 require special COBRA treatment for “assistance eligible individuals.” See “Stimulus Bill COBRA Amendments Require Immediate Group Health Plan Action” for more information. The Stimulus Bill COBRA amendments are intended to help certain involuntarily terminated former employees and their dependents maintain COBRA coverage. Employers must amend their plans to comply with these mandates and, if they wish to seek reimbursement for COBRA Subsidies, must comply with IRS requirements. Meanwhile, group health plan administrators and insurers must take immediate action to provide required notifications and implement other administrative changes necessary to comply with the new rules.

The Stimulus Bill definition of “assistance eligible individual” generally includes any COBRA “qualified beneficiary” who meets all of the following requirements:

Is eligible for COBRA continuation coverage at any time during the period beginning September 1, 2008 and ending December 31, 2009;
Elects COBRA coverage (when first offered or during the additional election period): and
Has a qualifying event for COBRA coverage that is the employee’s involuntary termination during the period beginning September 1, 2008 and ending December 31, 2009.

This definition includes both involuntarily terminated employees and their dependents who lost coverage under a group health plan due to the involuntary termination.

As part of their COBRA amendments, the Stimulus Bill limits the COBRA premium that a COBRA-covered group health plan can charge an “assistance eligible individual” to 35% of the otherwise applicable COBRA premium for a period of up to 9 months (the “Subsidy Period”) beginning March 1, 2009. Employers sponsoring these group health plans must pay the remaining 65% of the COBRA premium (the “COBRA Subsidy”) for the assistance eligible individual during the Subsidy Period. However, the Stimulus Bill allows an employer to seek reimbursement by claiming a payroll tax credit for these COBRA Subsidy payments by complying with applicable IRS procedures.

The Stimulus Bill also requires certain assistance eligible individuals whose employment terminated between September 1, 2008 and February 16, 2009 and did not elect COBRA coverage when previously offered or who allowed COBRA coverage to lapse after electing that coverage be offered a second COBRA enrollment period in which to elect prospectively to enroll in COBRA coverage. It also requires that group health plans that offer employees different plan options allow assistance eligible individuals the option to change their coverage choice. Also Group health plan administrators must provide certain notifications to assistance eligible individuals concerning these changes.

The guidance posted today supplements preliminary guidance previously posted by the Internal Revenue Service and the Department of Labor over the past month. You can review the current Deparment of Labor Guidance at http://www.dol.gov/ebsa/COBRA.html and the current IRS Guidance at http://www.irs.gov/newsroom/article/0,,id=204505,00.html/COBRA.html .

The Stimulus Bill COBRA rules were among the updates discussed by Cynthia Marcotte Stamer during a March 11, 2009 Health Plan Update Teleconference. If you are an employer or other group health plan sponsor, administrator, insurer or fiduciary and need assistance in preparing required notifications or with other matters relating to the Stimulus Bill COBRA Rules or any other health or other employee benefits matter, contact Cynthia Marcotte Stamer at CStamer@SolutionsLawyer.net or via telephone at 972.419.7188.

For information about how to purchase a recording of this teleconference or to review other breaking news updates about these Stimulus Bill COBRA Rules, register at Cynthia Stamer.com.

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Posted by Cynthia Marcotte Stamer

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Retaliation For Filing HIPAA Complaint Recognized As Basis For State Wrongful Discharge Claim

Employers Must Begin using New I-9 Form April 3, 2009; Government Contractor E-Verify Rules Take Effect May 21, 2009

Supreme Court’s Broad Definition Of Retailiation Requires Employers To Exercise Care

DOL Releases Stimulus Bill Model COBRA Notices, Other Guidance

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