Govt & payer mis-“management” increased costs & reduced care. TIme to reform the “health reform” to provide patient care, not bigger insurers and government. http://ow.ly/XAYp3059aph http://ow.ly/i/nWJpP

The U.S. Department of Labor Employee Benefits Security Administration (EBSA) announced employee benefit plan compliance relief for plans, plan sponsors and service providers and plan members adversely impacted by recent storms and flooding in Louisiana since Aug. 11, 2016.The relief acknowledges that plan fiduciaries, employers, labor organizations, service providers, and participants and beneficiaries may encounter compliance-related issues over the next few months in connection with employee benefit plans covered by the Employee Retirement Income Security Act as the implications of the Louisiana storms unfold.

The guidance announced today generally applies to employee benefit plans, plan sponsors, employers and employees, and service providers to such employers who were located – as of Aug. 11, 2016 – in a Lousiana parish identified as covered disaster area due to storms’ devastation in this Internal Revenue Service (IRS) news release.

Today’s announced relief also is in addition to the Form 5500 Annual Return/Report filing relief already provided by the IRS in accordance with LA-2016-20 Tax Relief for Victims of Severe Storms, Flooding in Louisiana. (See the regulations under § 7508A and Section 8 of Rev. Proc. 2007-56, 2007-34 I.R.B. 388.)

• Verification Procedures for Plan Loans and Distributions

IRS Announcement 2016-30 provides relief from certain verification procedures that may be required under retirement plans with respect to plan loans to participants and beneficiaries, hardship distributions and other pension benefit distributions. The department will not treat any person as having violated the provisions of title I of ERISA solely because they complied with the provisions of the IRS announcement. For more information on IRS Announcement 2016-30, see here.

• Participant Contributions and Loan Repayments

In keeping with 29 CFR § 2510.3-102, amounts that a participant or beneficiary pays to an employer or amounts that a participant has withheld from his or her wages by an employer for contribution or repayment of a participant loan to an employee pension benefit plan constitute plan assets. These assets must be forwarded to the plan on the earliest date on which such amounts can reasonably be segregated from the employer’s general assets – no later than the 15th business day of the month following the month in which the amounts were paid to or withheld by the employer.

Today’s announcement states EBSA recognizes that some employers and service providers acting on employers’ behalf, such as payroll processing services, located in identified covered disaster areas will not be able to forward participant payments and withholdings to employee pension benefit plans within the prescribed timeframe. In such instances, the department will not – solely on the basis of a failure attributable to the Louisiana storms – seek to enforce the provisions of Title I with respect to a temporary delay in the forwarding of such payments or contributions to an employee pension benefit plan to the extent that affected employers, and service providers, act reasonably, prudently and in the interest of employees to comply as soon as practical under the circumstances. EBSA states that the IRS has informed EBSA that – subject to the foregoing conditions – it will not seek to assess an excise tax with respect to a prohibited transaction under Section 4975 of the code resulting solely from such a temporary delay.

• Blackout Notices

In general, Section 101(i) of the ERISA and the regulations issued thereunder, at 29 CFR § 2520.101-3, provide that the administrator of an individual account plan is required to provide 30 days advance notice to participants and beneficiaries whose rights under the plan will be temporarily suspended, limited or restricted by a blackout period (i.e., a period of suspension, limitation or restriction of more than three consecutive business days on a participant’s ability to direct investments, obtain loans or obtain other distributions from the plan). The regulations provide an exception to the advance notice requirement when the inability to provide the notice is due to events beyond the reasonable control of the plan administrator and a fiduciary so determines in writing.

Recognizing natural disasters, by definition, are beyond the control of a plan administrator, EBSA’s announcement states ENSA will not allege a violation of the blackout notice requirements solely on the basis that a fiduciary did not make the required written determination with respect to blackout periods related to the Louisiana storms

• ERISA Group Health Plan Compliance Guidance

The  announcement also states EBSA recognizes that plan participants and beneficiaries may encounter an array of problems due to the storms and flooding, such as difficulties meeting certain deadlines for filing benefit claims and COBRA elections. The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes.

The announcement also states EBSA acknowledges that there may be instances when full and timely compliance by group health plans and issuers may not be possible. EBSA says its approach to enforcement will be marked by an emphasis on compliance assistance and include grace periods and other relief where appropriate, including when physical disruption to a plan or service provider’s principal place of business makes compliance with pre-established timeframes for certain claims’ decisions or disclosures impossible. 

New EEOC Rules Heighten Already Substantial Employer EEO Retaliation Risks.http://ow.ly/equi303KxgS

Employers beware.  U.S. Department of Labor Occupational Health and Safety Administration (OSHA) is testing a new “Expedited Case Processing Pilot” program in its Western Region that it hopes will make it even easier for whistleblowers to extort big settlements or recover big judgements by bringing whistleblower complaints under the Occupational Health and Safety Act (Act).

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

OSHA acknowledges that OSHA’s investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA’s processing of their claims.

The “Expedited Case Processing Pilot” allows a complainant covered by certain statutes to get their claim into court faster by asking OSHA to cease its investigation and issue findings for the department’s Office of Administrative Law Judges to consider. The move is possible only if the case meets certain criteria. Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, punitive damages where authorized, attorneys’ fees and reinstatement.

Barbara Goto, OSHA’s regional administrator in San Francisco says the  “ultimate goal” of the program is to bring about “quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job.”

Once a complainant requests expedited processing, the case will be assessed for the following criteria:

• The claim is filed under a statute that allows for de novo review by an administrative law judge.
• Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA.
• OSHA has interviewed the complainant.
• Federal investigators have evaluated the complaint and the complainant’s interview to determine if the basic elements of a retaliation claim exist.
• Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses.
• The complainant has received a copy of the respondent’s submissions and had an opportunity to respond.

Once OSHA officials determine that these criteria are met, they will evaluate the claim to determine – based on the information gathered up to the date of the complainant’s request for expedited processing – whether reasonable cause exists to believe that a violation of the statute occurred. OSHA officials will then take one of three actions: dismiss the claim and inform the complainant of the right to proceed before an administrative law judge; issue merit findings as expeditiously as possible; or deny the request.   

The effect will be bad news for employers.  It will allow whistleblowers to move their claims against employers quicker and more cost effectively  forward and make it harder for employers to stop unreasonable claims using the administrative process.  As a result, the already huge threat employers face from OSHA whistleblower claims will be even bigger.

Employers concerned with these risks should both ungraded their safety, employee discipline and other risk management and compliance efforts AND communicate their opposition to the pilot to OSHA and Congress. 

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

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

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved. 

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Obama Reforms Threat To Reliable Access To Quality Physician Care. Tune in to hearing now. http://ow.ly/LmOg302d2EN

US employers using staffing company or other temporary workers face substantial liability for failing to properly manage safety and Occupational Health & Safety Act (OSHA) obligations owed with respect to temporary or other contract labor workers, as demonstrated by the $3.42 million in fines that the  U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) assessed against Ohio auto parts’ manufacturer, Sunfield, Inc. for safety risks that it exposed temporary workers to by its failure to disconnect machinery from a power supply and prevent sudden movement before maintenance and service, and to train workers in how to operate machine presses safely and to service and maintain them.

The fines assessed against Sunfield are one of the largest OSHA penalties ever filed against a company in the automotive parts industry.

Under OSHA, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.   OSHA’s regulations, temporary and host employers are both responsible for ensuring employees are trained about safety hazards in the facility where they are placed to work. 

According to OSHA’s June 29 announcement, OSHA’s investigators inspected Sunfield’s Hebron plant after two workers suffered severe injuries in separate incidents in January and February 2016. The facility has an extensive history of federal safety violations dating back 20 years. The company, which investigators found to have a high rate of employee turnover, supplies parts for several major Japanese and domestic automakers.

OSHA today issued citations for 46 egregious willful, two willful, one repeated and eight serious safety violations with penalties totaling $3,426,900 to Sunfield. The agency also placed the company in OSHA’s Severe Violator Enforcement Program for failure to address these safety hazards. Most of the violations involve lack of machine safety procedures which expose workers to amputation, lacerations and other injuries.

U.S. Secretary of Labor Thomas E. Perez in the announcement of the sanctions said, “OSHA’s investigation found the company’s leadership failed in its obligation to properly train workers for the jobs they were hired to do, and created a culture that routinely tolerated willful and serious safety violations.”

According to OSHA, it’s OSHA investigation found:

• On Jan. 6, 2016, a 22-year-old male temporary worker employed by the staffing agency, Employers Overload, suffered multiple lacerations and a fractured right elbow, while removing scrap from a blanking press after operating machine parts caught his arm because safety light curtains were not operating correctly. OSHA’s investigation found a supervisor had identified the safety issue two hours prior to the injury, and failed to place the equipment out of service. The injured worker had been on the job just six months.
• On Feb. 18, 2016, a full-time 58-year-old Sunfield employee had to undergo surgical amputation of his right arm above the elbow after his arm was crushed as he removed scrap on a robotic press line. Investigators again found that the machine’s danger zone did not have adequate safe guards to prevent employees from coming in contact with operating machine parts. He had been on the job for just a year.
• Prior to these inspections, Sunfield had an extensive history of OSHA violations. Since 1997, 16 of 20 inspections conducted found multiple violations. In total, the agency has issued 118 citations that have addressed numerous machine hazards similar to those cited today and resulted in 90 serious, eight willful and five repeated violations to the company, which has repeatedly assured OSHA that it would address the unsafe conditions.

“Sunfield made and broke countless promises to improve safety conditions and eliminate serious hazards on the factory floor. The company also ignored its own corporate safety manuals and its safety manager’s warnings that workers lacked the training to protect themselves. And still, the company risked the safety and well-being of its employees as they operated dangerous and powerful industrial machines,” said Dr. David Michaels, assistant secretary of labor of Occupational Safety and Health.

“Sunfield has shown a total disregard for its workers, the kind rarely seen since the darkest days of the past when callous industrialists ruled and put profits before human suffering and common decency,” Michaels added. “This has to stop. We hope that today’s action brings an end to these conditions and convinces this employer that their behavior is intolerable.”

OSHA found that the company did not take the necessary steps to protect its workers from being injured by moving machine parts. It did not prevent machines from unintentionally starting when workers were performing service and maintenance such as clearing scrap, and also failed to provide adequate safety mechanisms such as guards, locking devices and other procedures to prevent contact with those moving parts. These types of violations are among the most frequently cited by OSHA and often result in death or permanent disability.

The agency also found multiple electrical safety violations including lack of personal protective equipment, workers exposed to “live” electrical parts, and use of damaged equipment. 

Three agencies, Atrium Personnel and iforce of Heath, as well as Employers Overload of Newark have been cited by OSHA for failing to provide lockout/tagout training for affected employees and for failing to provide mechanical power press safe operation training prior to sending temporary employees to the site. Each company faces proposed penalties of $7,000.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.   

While Sunfield ponders the appeal of its sanctions, other employers using temporary or other contract labor and those providing them should seize the opportunity to mitigate their own exposures to OSHA exposures for failure to manage safety responsibilities to its own temporary or other contract workers.  Management of these and other risks is made even more critical as a result if impending OSHA penalty increases slated to take effect August 1, 2016 when the Department of Labor’s “Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments” increases for inflation the  DOL’s OSHA and other penalties.  Under these adjustments, OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and as an editorial advisor and contributing author of many other publications. Her leadership involvements with the American Bar Association (ABA) include year’s serving many years as a Joint Committee on Employee Benefits Council representative; ABA RPTE Section current Practice Management Vice Chair and Substantive Groups & Committees Committee Member, RPTE Employee Benefits & Other Compensation Committee Past Group Chair and Diversity Award Recipient, current Defined Contribution Plans Committee Co-Chair, and past Welfare Benefit Plans Committee Chair Co-Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; International Section Life Sciences Committee Policy Vice Chair; and a speaker, contributing author, comment chair and contributor to numerous Labor, Tax, RPTE, Health Law, TIPS, International and other Section publications, programs and task forces. Other selected service involvements of note include Vice President of the North Texas Healthcare Compliance Professionals Association; past EO Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former Southwest Benefits Association Board of Directors member, Continuing Education Chair and Treasurer; former Texas Association of Business BACPAC Committee Member, Executive Committee member, Regional Chair and Dallas Chapter Chair; former Society of Human Resources Region 4 Chair and Consultants Forum Board Member and Dallas HR Public Policy Committee Chair; former National Board Member and Dallas Chapter President of Web Network of Benefit Professionals; former Dallas Business League President and others. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

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

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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. ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved. 

Government contractors should beef up their efforts to recruit and hire veterans in response to increased hiring targets announced by the Office of Federal Contract Compliance Programs (OFCCP).

OFCCP has published the 2016 Annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark on its Web site based on data released by the Bureau of Labor Statistics (BLS) on March 4, 2016. The benchmark – 6.9 percent – is effective as of that BLS release date.

Contractors who adopted the previous year’s national benchmark of 7 percent after March 4, 2016, but prior to this announcement may keep their benchmark at 7 percent. Going forward, the effective date for the Annual VEVRAA Benchmark will match the date that BLS publishes the data from which OFCCP calculates the Annual VEVRAA Benchmark – around the beginning of March.

Effective dates for all Annual VEVRAA Benchmarks are available at http://www.dol.gov/ofccp/regs/compliance/AnnualVEVRAABenchmarkEffectiveDates.htm.

Enforcement of veterans and other employment hiring and nondiscrimination rules is a high priority for OFCCP and other federal government agencies. along with its general heightened emphasis on the enforcement of employment discrimination laws, the Obama Administration particularly is pursuing enforcement and auditing of government contractor compliance with employment discrimination and other requirements. even before he was sworn in as President, President Obama made clear that he intended not only to tighten requirements for federal government contractors and other employers but also to offset some of the costs of the Stimulus Bill penalties against government contractors for violation of these rules or standards.  In keeping with this promise, the Obama administration aggressively audits compliance and enforces sanctions for violations against government contractors and other employers.  Zealous enforcement is both part of the Obama Administration’s commitment to expansion and enforcement of discrimination safeguards for “disadvantaged” groups and a revenue raising strategy.

Given these efforts, government contractors in particular as well as all employers generally need to use special care to position themselves to deter and defend against audits and other enforcement actions.

Government contractor and other employers should carefully monitor the industry and behaviors that the Administration targets for investigation and enforcement, its enforcement activities, and other aggressive actions of the Obama Administration  and plaintiffs attorneys.  In doing so, employers must keep in mind that the Obama Administration frequently seeks to expand the reach and impact of these rules through executive order or other executive action when its efforts to adopt legislation fails or is delayed.

Meanwhile both the government auditors and agencies and private plaintiffs are aggressively pursuing action against employers using these tightened requirements.  These efforts to attack employers are facilitated by expansive new recruitment, hiring and other documentation and recordkeeping requirements.  Employers and their recruiting and hiring agents need to use care to meet all of the specific requirements as well as to create and retain documentation Beyond that mandated by government regulations that can help defend challenges to the legitimacy of their activities.

About The Author
Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former  ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

Ms. Stamer’s legal and management consulting work throughout her nearly 30- year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and as a editorial advisor and contributing author of many other publications. Her leadership involvements with the American Bar Association (ABA) include years serving many years as a Joint Committee on Employee Benefits Council representative; ABA RPTE Section current Practice Management Vice Chair and Substantive Groups & Committees Committee Member,  RPTE Employee Benefits & Other Compensation Committee Past Group Chair and Diversity Award Recipient,  current Defined Contribution Plans Committee Co-Chair, and  past Welfare Benefit Plans Committee Chair Co-Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; International Section Life Sciences Committee Policy Vice Chair; and a speaker, contributing author, comment chair and contributor to numerous Labor, Tax, RPTE, Health Law, TIPS, International and other Section publications, programs and task forces.  Other selected service involvements of note include Vice President of the North Texas Healthcare Compliance Professionals Association; past EO Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division;founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former Southwest Benefits Association Board of Directors member, Continuing Education Chair and Treasurer; former Texas Association of Business BACPAC Committee Member, Executive Committee member, Regional Chair and Dallas Chapter Chair; former Society of Human Resources Region 4 Chair and Consultants Forum Board Member and Dallas HR Public Policy Committee Chair; former National Board Member and Dallas Chapter President of Web Network of Benefit Professionals; former Dallas Business League President and others. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc. ™resources at Solutionslawpress.com such as:

• Brace For OCR HIPAA Audits
• Register Now For 4/5 2016 Benefits & Bey
• Check Health Plan Privacy For New Guidance Compliance
• Learn Latest HIPAA Health Plan Rules In 3/30 SLP Webex
• Marketplace Data Deficiencies Signal Employer ACA Headaches
• SCOTUS: States Can’t Require Reporting of ERISA Health Plan Data
• IRS OK’s Skipping Certain 2015 Form 5500 Questions
• DOL Proposes Changes To Summary of Benefit & Coverage Rules 
• More proof government should stay out of healthcare
• Health Care Quality: Different Meaning For Care Vs. Coverage
• IRS Changes Plan Qualification Procedures, Returns, Other Procedures
• Remember Microsoft: The Need for Effective Risk Management as to Contract Employees
• Obama Administration Proposes Rules Giving Jobseeker Equal Opportunity Protections
• Health Benefit Still Top Employer Benefit Cost
• U.S. Businesses & Their Leaders Face Rising FLSA Collective Action Liability Risks
• Health Care Providers’ ERISA Health Plan Benefit Opportunities & Employee Benefits Compliance Obligations Topic of 9/15 Study Group
• Improve HR Value To Company By Making HR A Performance Rather Than People Department
• Sponsoring Employers Face Excise Taxes, Other Liabilities Unless Health Plans Comply With ACA Out-Of-Pocket & Other Federal Rules
• Legal Review Of Health Plan Documents, Processes Needed To Mitigate Employer’s Excise Tax & Other Health Plan Risks
• EEOC ADA Suit Against Magnolia Health Highlights US Employer’s Growing Disability Discrimination Risks
• Proposed OSHA Regs Will Clarify Employer’s Continuing Duty To Ensure OSHA 300 Log Completeness
• 10 Practical Pointers To Use Law To Better Strengthen The Legal Defensibility Of Your Business & Its Leaders
• Tri-Agencies Update On Planned ACA Transparency Reporting Rules For Non-QHP Issuers & Non-Grandfathered Group Health Plans
• Employers, Plan Administrators Confirm All Form 5500s Timely Filed; Valuable Relief Options Available For Non-Filers
• Health Insurer/Vendor’s Claims & Appeals Deficiencies Could Trigger Significant Employer Excise Tax Liability
• HIPAA Settlement Warns Health Plans, Sponsoring Employers & Business Associates To Manage HIPAA Risks
• Obama Administration Proposal Would Extend FLSA Minimum Wage & Overtime Requirements To 5 Million+ Workers
• Prompt Business Action Needed To Mitigate Post-King Employer Health Benefit Costs & Liabilities

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.  ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved.

Average American Family 2016 Healthcare Costs To Exceed $25000, Per Milliman Study; Costs Now 3X 2001 Levels http://ow.ly/ki8h300ycGS

Health plans and health insurers, health care providers, healthcare clearinghouses (Covered Entities) and their business associates should verify that their copying charges and other policies and practices for responding to requests of individuals for copies and other access to protected health information (PHI) comply with the Privacy and Security Rules (Privacy Rule) of the Health Insurance Portability & Accountability Act of 1996 (HIPAA) as construed in a new Frequently Asked Question (FAQ published May 24, 2016 as follow up to two other sets of guidance about HIPAA assess rights published by the Department of Health & Human Services Office of Civil Rights (OCR) since January, 2016.

New OCR Guidance Sheds New Light On HIPAA Access Rule Requirements

The OCR FAQ titled New Clarification – Up to $6.50 Flat Rate Option published May 24, 2016 is the third in a series of guidance materials OCR discussing OCR’s interpretation of individuals’ core right under HIPAA to access and obtain a copy of their PHI from Covered Entities since January, 2016 (the “Access Rule”).   With  OCR Enforcement Data already showing Access Rule violations among the top 5 issues in cases investigated by OCR every year since HIPAA took effect in 2003, Covered Entities can expect OCR to include Access Rule violations among the Privacy Rule violations OCR likely will target as it continues to ramp up its HIPAA audit, investigation and enforcement efforts.

As part of its sweeping requirements concerning the use, access, protection and disclosure of PHI, the Access Rule provisions of the Privacy Rule generally require Covered Entities to provide individuals, upon request, with access to the protected health information (PHI) about them in one or more “designated record sets” maintained by or for the Covered Entity or its business associate.  This includes the right to inspect or obtain a copy, or both, of the PHI, as well as to direct the Covered Entity to transmit a copy to a designated person or entity of the individual’s choice as long as the Covered Entity or a business associate on its behalf maintains the PHI, regardless of the date the information was created; whether the information is maintained in paper or electronic systems onsite, remotely, or is archived; or where the PHI originated (e.g., whether the Covered Entity, another provider, the patient, etc.).

With its publication of the New Clarification FAQ on May 24, 2016, OCR now has published three pieces of guidance (the Access Guidance) about its interpretation of the Access Rule since January, 2016 that it hopes will promote greater understanding of and compliance with the Access Rule by Covered Entities:

• In January, OCR published a comprehensive Fact Sheet (Fact Sheet) and the first in a series of topical frequently asked questions (FAQs) addressing patients’ right to access their medical records, which set forth requirements providers must follow in sharing medical records with patients, including that they must do so in a timely manner and in a format that works for the patient;
• On March 1, OCR published a second set of FAQs accessible here addressing when Covered Entities may charge individuals to provide requested copies of their PHI, how Covered Entities must calculate these fees, when Covered Entities must send an individual’s PHI to a third party designated by the individual in its request for copies, and other issues relating to access rights guaranteed by the Privacy Rule; and
• On May 24, 2016 OCR clarified this prior Access Guidance by publishing another FAQ titled New Clarification – Up to $6.50 Flat Rate Option .

Collectively, the Access Guidance addresses a broad range of questions and issues about the responsibilities of Covered Entities under the Access Rule including what PHI Covered Entities must provide as well as detailed guidance about when and how much Covered Entities can charge individuals for requested copies of their PHI or summaries of their PHI.  Since the OCR Access Guidance may restrict the charge that health care providers or other Covered Entities can charge for copies or other access more than applicable state law rules,  Covered Entities need to verify their practices comply with OCR’s Access Guidance in addition to any applicable state law rules.  The Access Guidance makes clear that OCR expects Covered Entities and their business associates to ensure that their charges for copying or providing other access to PHI guaranteed by the Privacy Rule complies with this Access Guidance even if that practice does not violate applicable state law.

Are You Charging Too Much? Charges For Copies of PHI Must Meet OCR Privacy Rule Guidance 

Concerning charges for copies of PHI requested by an individual, Privacy Rule § 164.524(c)(4) permits a Covered Entity to impose a reasonable, cost-based fee if the individual requests a copy of the PHI (or agrees to receive a summary or explanation of the information) provided that the Covered Entity properly and timely notifies the individual of the cost and properly determines the cost in accordance with OCR guidance.

Many physicians or other health care providers that use electronic health records (EHRs) certified to allow individuals to access their PHI in the system may be unaware that OCR views the availability of electronic access from the EHR affects the health care provider’s ability to charge for copies of requested PHI.  OCR’s position is that the Privacy Rule prohibits a Covered Entity from charging an individual for requested copies of PHI when the request is fulfilled by the individual accessing the requested PHI using the View, Download, and Transmit functionality of the provider’s certified electronic health record.

Assuming the request for access or copies is not fulfilled through download from an HER, the Access Guidance indicates q Covered Entity must use one of three potentially applicable OCR-approved methods to calculate the fee the Covered Entity charges an individual for copies of PHI or an agreed upon summary provided that the method used takes into account only labor costs for copying or producing an agreed upon summary as defined by OCR.:

• The “Actual Cost” Method;
• The “Average Cost” Method; or
• For electronic copies of PHI maintained electronically, the “Flat Fee” Method.

Charging a flat fee not to exceed $6.50 is an option available to those entities that do not want to go through the process of calculating actual or average costs for requests for electronic copies of PHI under either the Actual Cost or Average Cost Methods.  However, by its terms, the “Flat Fee” Method is only an allowable for Covered Entities to use to avoid calculating actual or average allowable costs when a Covered Entity is providing electronic copies of PHI maintained electronically (and presumably when the access request is not fulfilled through download from an EHR).  When applicable, the Flat Fee Method allows a Covered Entity to charge a flat fee for all requests for electronic copies of PHI maintained electronically, provided the fee does not exceed $6.50, inclusive of all labor, supplies, and any applicable postage.  The New Clarification – Up to $6.50 Flat Rate Option clarifies that use of the Flat Rate Method is permitted not required when a Covered Entity  provides copies of PHI maintained electronically other through download directly from a certified EHR. Covered Entities that wish to charge more than the $6.50 flat rate allowed under the Flat Rate Option retain the right, if the facts and evidence warrant, to use either the Actual Cost Method or Average Cost Method to calculate the fee for providing electronic records electronically within the boundaries of what is permissible under the Privacy Rule.

Where the Flat Fee Method is inapplicable or the Covered Entity elects not to use it, the Covered Entity must use either the Actual Cost Method or the Average Cost Method to calculate the fee in accordance with OCR’s rules.

Under the “Actual Cost Method,” a Covered Entity may calculate actual labor costs to fulfill the request, as long as the labor included is only for copying (and/or creating a summary or explanation if the individual chooses to receive a summary or explanation) and the labor rates used are reasonable for such activity. The Covered Entity may add to the actual labor costs any applicable supply (e.g., paper, or CD or USB drive) or postage costs. Covered Entities that charge individuals actual costs based on each individual access request still must be prepared to inform individuals in advance of the approximate fee that may be charged for providing the individual with a copy of her PHI. An example of an actual labor cost calculation would be to time how long it takes for the workforce member of the Covered Entity (or business associate) to make and send the copy in the form and format and manner requested or agreed to by the individual and multiply the time by the reasonable hourly rate of the person copying and sending the PHI. What is reasonable for purposes of an hourly rate will vary depending on the level of skill needed to create and transmit the copy in the manner requested or agreed to by the individual (e.g., administrative level labor to make and mail a paper copy versus more technical skill needed to convert and transmit the PHI in a particular electronic format);

Under the “Average Cost” Method, in lieu of calculating labor costs individually for each request, a Covered Entity can develop a schedule of costs for labor based on average labor costs to fulfill standard types of access requests, as long as the types of labor costs included are the ones which the Privacy Rule permits to be included in a fee (e.g., labor costs for copying but not for search and retrieval) and are reasonable. Covered Entities may add to that amount any applicable supply (e.g., paper, or CD or USB drive) or postage costs.    This standard rate can be calculated and charged as a per page fee only in cases where the PHI requested is maintained in paper form and the individual requests a paper copy of the PHI or asks that the paper PHI be scanned into an electronic format. However OCR’s guidance states that OCR does not consider per page fees for copies of PHI maintained electronically to be reasonable for purposes of 45 CFR 164.524(c)(4);

Whether using the Actual Cost Method or the Average Cost Method, a Covered Entity must only take into account only “reasonable labor costs associated only with the: (1) labor for copying the PHI requested by the individual, whether in paper or electronic form; and (2) labor to prepare an explanation or summary of the PHI, if the individual in advance both chooses to receive an explanation or summary and agrees to the fee that may be charged.

OCR’s guidance makes clear that the reasonability of the charges for labor must reflect the technology available for providing this access.  In this respect, OCR’s guidance states that a Covered Entity cannot charge a fee under HIPAA for individuals to access the PHI from a health care provider’s EHR technology that has been certified as being capable of making the PHI accessible.   OCR’s position is that where a Covered Entity fulfills an individual’s HIPAA access request by allowing the individual to access the requested PHI using the View, Download, and Transmit functionality of the provider’s certified electronic health record (CEHRT), an individual requests or agrees to access her PHI available through the View, Download, and Transmit functionality of the CEHRT, there are no labor costs and no costs for supplies to enable such access.

To the extent that access is not provided through an CEHRT, the fee a Covered Entity charges an individual to provide copies of requested PHI or an agreed upon summary may include only the cost of:

• Copying the PHI; and
• Preparation of an explanation or summary of the PHI, if agreed to by the individual.

As interpreted by OCR, labor for copying includes only labor for creating and delivering the electronic or paper copy in the form and format requested or agreed upon by the individual, once the PHI that is responsive to the request has been identified, retrieved or collected, compiled and/or collated, and is ready to be copied.  For example, labor for copying may include labor associated with the following, as necessary to copy and deliver the PHI in the form and format and manner requested or agreed to by the individual:

• Labor for copying the PHI requested by the individual, whether in paper or electronic form;

• Supplies for creating the paper copy or electronic media (e.g., CD or USB drive) if the individual requests that the electronic copy be provided on portable media;
• Postage, when the individual requests that the copy, or the summary or explanation, be mailed; and
• Creating and executing a mailing or e-mail with the responsive PHI.

See 45 CFR 164.524(c)(4).

The Access Guidance states the fee may not include costs associated with verification; documentation; searching for and retrieving the PHI; maintaining systems; recouping capital for data access, storage, or infrastructure; outsourcing the function of responding to individual requests for PHI copies or other costs not listed above even if such costs are authorized by State law.  See 45 CFR 164.524(c)(4).

Of course, in any case, OCR’s guidance makes clear that regardless of how a entity chooses to calculate its fee to copy PHI, the Privacy Rule requires that the Covered Entity inform the requesting individual in advance of the approximate fee that may be charged for providing the copy requested and otherwise comply with the Privacy Rule as interpreted by OCR’s latest guidance concerning providing individuals access to PHI and other requirements.

Documented, Timely Action Needed To Mitigate OCR Audit, Investigation & Enforcement Risks

Beyond operationally complying with the Access Guidance, Covered Entities and their business associates generally will want to update their policies, practices and training to position themselves to defend their calculation of any charges made for copies provided in response to a request for access protected by the Privacy Rule and other compliance with the requirements of that rule and the otherwise applicable provisions of HIPAA as well as include monitoring and enforcement of these requirements as part of their ongoing HIPAA compliance efforts.

These and other HIPAA compliance efforts are particularly critical in light of the expanding audit, investigation and enforcement activities of OCR under the Privacy Rule.  OCR’s publication of the Access Guidance coincides with a surge in OCR’s HIPAA audit, investigation and enforcement activities.

OCR’s publication of the new Access Guidance comes as OCR is ramping up its interpretation, oversight and enforcement of HIPAA generally.  See, Brace For OCR HIPAA Audits & Enforcement; Update Privacy Practices For New OCR HIPAA Enforcement, Security & Records Access Guidance.  While continuing to offer guidance like the Access Guidance and other tools to encourage and help Covered Entities and their business to understand and comply with the Privacy Rule, OCR also increasingly now uses the expanded penalties and authority created by the HITECH Act to punish Covered Entities for violating Privacy Rule requirements.  HITECH Act amendments, among other things, broadened the duties of OCR to audit, investigate and sanction HIPAA violations as well as tightened various requirements of the Privacy Rules.

The risks to Covered Entities from violating the Privacy Rules are significant and growing.  Since the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH) amended HIPAA, Covered Entities and their business associates face heightened risks that violations of HIPAA will trigger liability to pay a Civil Monetary Penalty (CMP) to OCR or other sanctions.  The two, multimillion dollar CMPs now imposed by OCR against two different Covered Entities caught violating the Privacy Rules only reflect a small part of OCR’s CMP enforcement.  Equally or perhaps more significant are the growing stream of high dollar settlement payments that an ever-growing list of Covered Entities to resolve OCR Privacy Rule violation charges that otherwise also might result in OCR’s assessment of a CMP against them.  See, e.g. $2 Million+ HIPAA Settlement, FAQ Warn Providers Protect PHI From Media, Other Recording Or Use; Provider Pays $750K To Settle HIPAA Business Associate Rule Breach Charges; North Memorial Hit With $3.9M HIPAA Fine For HIPAA Violations; 3/30 Webex Shares Latest On Security, Patient Access & Other HIPAA Developments;  OCR’s 2nd-Ever HIPAA CMP Nails Lincare For $239,000; Lehey Pays $850K After Unencrypted Laptop Stolen.

These already substantial enforcement risks are likely to rise as OCR begins auditing the compliance of selected Covered Entities as part of its recently announced 2016 audit program.  As a result of audit requirements enacted as part of the HITECH Act, Covered Entities now need to be prepared to demonstrate the adequacy of their HIPAA compliance in case their organization becomes targeted for audit under OCR’s 2016 audit program.  Even if not selected for audit, however, Covered Entities and their business associates still face the risk that a complaint filed with OCR will trigger an OCR investigation of their practices for providing copies or other access or other compliance with the Privacy Rules.  In light of the growing aggressiveness of OCR’s enforcement, Covered Entities and their business associates need to be prepared to demonstrate their efforts to comply. Those that cannot show adequate compliance efforts should be prepared for potentially substantial CMP or Resolution Agreement payments and other sanctions.  Consequently, Covered Entities and their business associates should move quickly to review and update their practices, communications and training to comply with this new Access Guidance as well as other guidance, enforcement and other developments that might impact the adequacy of their existing practices under the Privacy Rule generally.  Because of the risk that any review or investigation of the adequacy of its practices or complaints under the Privacy Rule will involve sensitive information or analysis, Covered Entities and their business associates are cautioned to consider the advisability of arranging for this analysis and review to be conducted within the scope of attorney-client privilege under the guidance of legal counsel experienced with the Privacy Rules and other related legal concerns.

About The Author

Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely recognized for her extensive work and pragmatic thought leadership, experience, publications and training on HIPAA and other privacy, medical records and data and other health care and health plan concerns.

Recognized as “LEGAL LEADER™ Texas Top Rated Lawyer” in both Health Care Law and Labor and Employment Law, a “Texas Top Lawyer,” an “AV-Preeminent” and “Top Rated Lawyer” by Martindale-Hubble and as among the “Best Lawyers In Dallas” in employee benefits 2015 by D Magazine; Ms. Stamer has more than 28 years of extensive proven, pragmatic knowledge and experience representing and advising health industry clients and others on operational, regulatory and other compliance, risk management, product and process development, public policy and other key concerns.

As a core component of her work as the Managing Shareholder of Cynthia Marcotte Stamer, PC, Ms. Stamer has worked extensively throughout her nearly 30 year career with health care providers, health plans, health care clearinghouses, their business associates, employers, banks and other financial institutions, their technology and other vendors and service providers, and others on legal and operational risk management and compliance with HIPAA, FACTA, PCI, trade secret, physician and other medical confidentiality and privacy, federal and state data security and data breach and other information privacy and data security rules and concerns; prevention, investigation, response, mitigation and resolution of known or suspected data or privacy breaches or other incidents; defending investigations or other actions by plaintiffs, OCR, FTC, state attorneys’ general and other federal or state agencies; reporting and redressing known or suspected breaches or other violations; business associate and other contracting; insurance or other liability management and allocation; process and product development, contracting, deployment and defense; evaluation, commenting or seeking modification of regulatory guidance, and other regulatory and public policy advocacy; training and discipline; enforcement, and a host of other related concerns for public and private health care providers, health insurers, health plans, technology and other vendors, employers, and others.

Beyond her extensive involvement advising and defending clients on these matters, Ms. Stamer also has served for several years as the scrivener for the ABA JCEB’s meeting with OCR for many years. She returns as Chair of the Southern California ISSA Health Care Privacy & Security Summit for the third year in 2016, as well as speaks and serves on the steering committee of a multitude of other programs.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares shared her thought leadership, experience and advocacy on HIPAA and other concerns by her service in the leadership of a broad range of other professional and civic organization including her involvement as the Vice Chair of the North Texas Healthcare Compliance Association, Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE; Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Board Compliance Chair and Board member of the National Kidney Foundation of North Texas, current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative and current RPTE Representative to the ABA Health Law Coordinating Counsel, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.

Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management. Examples of her many highly regarded publications on these matters include “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security: Beyond HIPAA,” as well as thousands of other publications, programs and workshops these and other concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients, on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see www.CynthiaStamer.com, email Ms. Stamer cstamer@solutionslawyer.net or telephone her at (469) 767-8872.

About Solutions Law Press, Inc.™

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

• Obama Offers Grants To States To Boost Paid Leave Availability With State GrantsConfirm Health Plan Contraceptive & Colonoscopy Coverage Meets Latest FAQ ACA Preventive Care Guidance
• Business Associate Rule Violations Behind $750K HIPAA Settlement
• Final Investment Advice Fiduciary Rules Mean Work For Employers, Fiduciaries & Advisors
• Employers, Insurers & TPAS: Budget Time, $ For 2017 Summary of Benefits and Coverage Updates
• Expect New Fed Regs To Increase Childcare Costs
• OSHA Raises Silica Safety Requirements
• DOL “Persuader Rule” Changes Broaden Employer & Consultant Anti-Union Contract Disclosure Duties
• Brace For Health Plan OCR HIPAA Audits
• Check Health Plan Privacy For New Guidance Compliance
• Marketplace Data Deficiencies Signal Employer ACA Headaches
• North Memorial Health Care Pays $1.5M Plus HIPAA Settlement For Business Associate Agreement Deficiencies
• New CDC Guidance on Opioid Prescribing
• Update Privacy Practices For New OCR HIPAA Enforcement, Security & Records Access Guidance
• OIG Opinion Lets Med Center Pay Some Transport & Short-Term Lodging Costs For Pregnant Medicaid Patients Near Delivery
• Compliance Defects Fuel Record Record $646M Antikickback Penalty
• OCR’s 2nd-Ever HIPAA CMP Nails Lincare For $239,000
• Redesigned OCR Website Launched
• Providers Get More Flexibility To Report Mental Health Patients To Gun Data Base Under New Privacy Rule
• OIG Modifies Past Ruling, Blesses Two New Medicare Co-Pay Financial Programs
• IRS Stops Asserting Foreign Reinsurance Tax On Premiums Between Reinsurers
• Lehey Pays $850K After Unencrypted Laptop Stolen
• Health Care Fraud Prosecutions Target Owners, Operators & Other Leaders
• Excluded Nurse, Husband Face Decades Imprisonment on $80M Home Health Fraud Convictions

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.  ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ All other rights reserved.

Frontier Says “Conversion Issues” for recurrent overbilling of new Tx customers, other service issues. Shouldn’t FTC/Tx Ag act?

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Employer and union sponsored group health plans, their sponsoring employers, with insurance and service providers should review and comment on The Labor Department’s proposed changes to the Summary Of Benefits and Coverage rules. http://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYwMjI1LjU1Njk5MjAxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MDIyNS41NTY5OTIwMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MDcxMTU4JmVtYWlsaWQ9Y3N0YW1lckBzb2x1dGlvbnNsYXd5ZXIubmV0JnVzZXJpZD1jc3RhbWVyQHNvbHV0aW9uc2xhd3llci5uZXQmZmw9JmV4dHJhPU11bHRpdmFyaWF0ZUlkPSYmJg==&&&100&&&https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-04314.pdf.

Enacted as part of the sweeping healthcare reforms made law by the Patient Protection and Affordable Care Act (ACA) , the SBC rules require group health plans to deliver certain standardize information about coverage and benefits provided by the plan in a format dictated by the regulations prior to the beginning of any enrollment period and  at certain other times. The duty to provide the SBC Is in addition to the responsibility to provide a summary plan description, notice of material changes in the plan, and a host of other mandatory notices required by federal law.  

Failure to provide a timely SBC can trigger penalties of up to $125 per participant per day under section 502(c) of the Employee Retirement Income Security Act as well as other exposures.

Employer and other group health plan sponsors, plan administrators and other fiduciaries, insurers and other plan service providers and others involved in the design in administration a group health plan will want to carefully review these changes to consider how they might impact the preparation of the required SBC for their plans taking into account the plan design and the other notification obligations impacting the content of these notices.  Plan sponsors and plans to do Sherry to outsourced plan design, plan communication or plan administration services to ensure those or other service providers also will want to consider these requirements when reviewing and negotiating contracts with the vendors.