More Work For Employers, Benefit Plans Following SCOTUS Same-Sex Marriage Ruling

June 26, 2015

While politicos and pundits nitpick and debate about the underlying arguments of today’s Supreme Court ruling that all states must permit same sex couples to marry, businesses need to prepare for the employment, employee benefit and other operational challenges of the fallout.

With same sex couples lining up to apply for licenses in the 34 states that prohibited or refused to recognize same sex marriages before the Supreme Court announced its landmark June 26, 2015 Obergefell v. Hodges ruling that all states must allow same sex marriages, businesses need to anticipate and prepare to cope with the legal and operational demands their business likely will face as same sex couples move to claim the new rights recognized by the Supreme Court.  While these demands may vary depending on the nature of the business and its workforce and client base, most businesses should move quickly to review and update as necessary their human resources and employee benefit policies and practices concerning when same-sex partners of employees are treated as the spouses of the employees in light of the United States Supreme Court’s .  When moving forward on these actions and addressing spousal rights and compliance concerns in the workplace, employer and employee benefit plan leaders and their consultants are cautioned that the decision requiring states to allow same-sex couples to marry under their marriage law does not eliminate ambiguities or differences in state laws and documentation of marriage.  Consequently, policies, practices and programs for administering the employment and employee benefit rights of married employees need to be carefully tailored to identify and require proof of marriage evenhandedly taking into account variances and potential biases in state documentation and practices that could create complications or even liabilities for employers and plans if not appropriately considered.

Since the Supreme Court ruled that the Equal Protection Clause of the United States Constitution entitled same-sex couples to equal treatment with married heterosexual couples under federal law in United States v. Windsor, 133 S.Ct. 2675 (2013), employers have faced several challenges understanding and updating their policies and practices with respect to employees involved in same sex relationships.

The Obama Administration’s aggressive reinterpretation of federal employment, employee benefit, tax and other laws and regulations to require same sex partners married or in legal relationships that applicable state law afforded treatment equivalent to marriage placed pressure upon employers to update their policies and practices concerning when to recognize employees in same sex relationships as marriages for employment, employee benefits and other purposes.  See, e.g., See Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers; Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status; Review Benefit Plan, FLMA & Other Family-Related Policies In Light Of Labor Department Same-Sex Marriage Guidance; Post-Windsor Same-Sex Participant Guidance May Require Mid-Year Plan Amendments; DOMA: Health & Cafeteria Plan Design & Administration In A Post-Windsor World; Review & Update HR & Benefit Practices For DOL Proposed Change In FMLA Regs, Other Rules Treating Some Same-Sex Couples As Spouses.  As the Windsor decision did not address whether the United States Constitution also guaranteed same sex couples a right to marry under state law, disparities in the treatment of same sex marriages between the states and rapid changes in the state statutory and judicial rules governing these determinations created significant challenges to employer efforts to determine if and when a same sex couple could marry in a particular state and the right and duty of the employer in response to such an arrangement.  Today’s Obergefell ruling will help to resolve some, but not all of this uncertainty by answering the question whether states may refuse to allow same sex partners to marry or refuse to recognize marriages of same sex partners.  The Obergefell decision settles this debate by holding that the United States Constitution requires all States to allow same-sex couples to marry on the same terms as apply to heterosexual couples.

While the Obergefell decision answers the question about whether states must allow same-sex couples to marry, employers still face many challenges. First, employers, employee benefit plan fiduciaries and service providers, their advisors and consultants must reevaluate and update their policies and practices in response to Winsor and Obergefell.   Employers, employee benefit plans and their leaders need to think and act broadly and systematically when conducting this analysis to help ensure that their efforts cover all policies, practices and procedures where the rights of an employee or his spouse may be implicated.  While some of these concerns and requirements will be clear, others may not necessarily be obvious at first blush. Businesses and benefit plans definitely need to make a priority updating their existing employment and employee benefit policies and practices to deal with the new rights and expectations of potential employees or applicants in same sex marriages.  Naturally employers and plan fiduciaries and administrators will need to take steps to identify and specifically respond to any new rules or updated guidance concerning the employment, employee benefits or other rights of employees in same sex relationships.  Employers also need to anticipate and address the foreseeable impacts of the ruling on practices not covered by specific judicial precedence or regulatory guidance where newly recognized marital status of an employee to his or her same sex partner could create rights or expectations not previously enjoyed for the employee, his or her spouse or their family members.  For instance, employers can expect and will need to plan to handle potential requests to add a same sex spouse to benefit plans, change cafeteria plan elections to change the employee’s benefit or beneficiary elections in response to his or her newly recognized marital status, add dependent children of a same sex partner as dependents under health or other benefit plans, and have the employer or benefit plan grant access to events or information to a same sex spouse normally enjoyed by spouses of heterosexual married employees.

Beyond handling these common employment and employee benefit transactions and dealings, businesses also generally will want to consider revising their workplace conduct, discrimination, harassment and other policies and retrain members of their workforce to conduct themselves appropriately concerning conduct and communications impacting the legal obligations of the employer toward employees or customers in or perceived to be involved in marriages or other relationships with same sex spouses or partners.

When conducting this analysis, business and benefit plan leaders should keep in mind that while the Supreme Court’s Obergefell requires States to treat same sex and opposite sex couples equally under the law for purposes of determining which couples are married, determining consistently whether two individuals are legally married in any particular state remains anything but simple.  Variations in the marriage laws of the states mean the requirements for and proof of marriage can vary significantly. When working to adopt updated policies and practices for deciding whether to treat two individuals, regardless of their sex, as married for employment or employee benefit purposes, employers, employee benefit plans, and their management, fiduciaries, service providers and advisors also need to use care to manage potential discrimination risks that might arise from the adoption of policies that by the terms or in operation treat same sex versus opposite sex partners disparately. Beyond the specific administrative complications and compliance risks that ignoring these differences could create, policies or practices that by their terms or in operation treat same sex and opposite sex couples differently for purposes of recognition of marriage rights also may create sex discrimination liability exposures under the Civil Rights Act and other laws.  Accordingly, parties responsible for these activities should act promptly and carefully with the advice of counsel to evaluate and update their employment and employee benefit policies to respond to the new decisions and these other challenges and duties.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms.Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.  Ms. Stamer uses her deep and highly specialized 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, ex-patriate 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.

Ms. Stamer helps management manage.Ms. Stamer’s legal and management consulting work throughout her 27 plus 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 management operations 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.

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 presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice 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; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.  She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see www.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 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.

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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Businesses Must Confirm & Clean Up Health Plan ACA & Other Compliance Following Supreme Court’s King v. Burwell Decision

June 25, 2015

With the Supreme Court’s much anticipated June 25, 2015 King v. Burwell decision dashing the hope that the Supreme Court  would provide relief for businesses and their group health plans from the Patient Protection and Affordable Care Act (ACA) mandates by striking down ACA, U.S. businesses that offered health coverage in 2014 and those continuing to sponsor health coverage currently swiftly to act to review and verify the adequacy of their 2014 and current group health plan’s compliance with ACA and other federal group health plan mandates as well as begin their finalizing their group health plan design decisions for the upcoming year.

King Decision Nixes Hope For Meaningful Judicial Relief For Businesses, Plans For Existing ACA Violations

Prompt action to assess and verify compliance is particularly critical in light of much overlooked the “Sox For Health Plans” style rules of Internal Revenue Code (Code) Section 6039D, which generally require group health plans that violated various federal group health plan mandates to self-identify and self-report these violations, as well as self-assess and pay the excise taxes of up to $100 per day per violation triggered by uncorrected violations.  While applicable prior to 2014 for uncorrected violations of a relatively short list of pre-ACA federal group health mandates, ACA broadened the applicability of Code Section 6039D to include ACA’s group health plan mandates beginning in 2014. see SOX FOR HEALTH PLANS? IRS Excise Tax Requirements For Failing to Report Plan Violations Who Must File the IRS Form 8928, Requirement for Self-Reporting? This means that in addition to any other liability that the company, its group health plan and its fiduciaries might bear for violating these rules under the Employee Retirement Income Security Act, the Code, the Social Security Act or otherwise, the sponsoring business also will incur liability for the Code Section 6039D excise tax for uncorrected violations, as well as late or non-filing penalties and interest that can result from late or non-filing.

Many employers have significant exposure to these Code Section 6039D excise tax liabilities since many plan sponsors or their vendors have delayed reviewing or updating their group health plans for compliance with some or all of ACA’s mandates.  In many cases, businesses delayed in hopes that the Supreme Court would strike down the law, Congress would amend or repeal it, or both.  In other cases, limited or continuing changes to the regulatory guidance about some of ACA’s mandates prompted businesses to hold off investing in compliance to minimize compliance costs.  Regardless of the past reasons for such delays, however, businesses sponsoring group health plans after 2013 need to recognize and act to address their uncorrected post-2013 ACA violations exposures.

While many businesses as well as individual Americans have held off taking long overdue steps to comply with ACA’s mandates pending the Supreme Court’s King v. Burwell decision, the three agencies charged with enforcement of its provision – the IRS, Department of Labor and Department of Health and Human Service has been gearing up to enforce those provisions of ACA already in effect and to finalize implementation of others in the expectation of today’s ruling in favor of the Obama Administration.  As a practical matter, businesses sponsoring group health plans and other ACA opponents need to recognize that the Supreme Court’s King decision realistically gives these agencies the go ahead to move forward with these plans for aggressive implementation and enforcement.

While technically only addressing a challenge to the Obama Administration’s interpretation of the individual tax credit (“Individual Subsidy”) ACA created under Code Section 36B, the Supreme Court’s decision realistically eliminates any realistic hope for that the Supreme Court will provide businesses or their group health plans with any meaningful past or current ACA violations by striking down the law itself. Of all of the currently pending challenges to ACA working their way to through the courts, the King case presented the best chance of a Supreme Court ruling that would wholesale invalidate ACA’s insurance reforms, if not the law itself, because of the importance of the Individual Subsidy to the intended workings of those reforms. By upholding the Obama Administration’s interpretation of Code Section 36B as allowing otherwise qualifying individuals living in states without a state run ACA health insurance exchange to claim the Individual Subsidy for buying health care coverage through the federal Healthcare.gov health insurance exchange, the Supreme Court effectively killed the best possibility that the Supreme Court would invalidate the insurance reforms or ACA itself. While various challenges to the law or certain of the Obama Administration’s interpretations of its provisions, none of these existing challenges present any significant possibility that the Supreme Court will strike down ACA.

While the Republicans in Congress have promised to take Congressional action to repeal or reform ACA since retaking control of the Senate in last Fall’s elections, meaningful legislative reform also looks unlikely.  Its narrow majority in the Senate means that Republicans alone do not have sufficient votes to override President Obama’s promised veto of these efforts. Consequently, prospects for meaningful legislative relief or repeal of ACA’s mandates remain extremely dim even with Republicans holding the majority in both the House and Senate.

Deadline To Self-Report, Pay Excise Tax Penalties For 2014 Health Plan Violations Rapidly Approaching

In light of these developments, businesses must prepare both to meet their current and future ACA and other federal health plan compliance obligations and defend potential deficiencies in their previous compliance over the past several years.  The importance of these actions take on particular urgency given the impending deadlines under the largely overlooked “Sox for Health Plans” rules of Code Section 6039D for businesses that sponsored group health plans after 2013.

Under Code Section 6039D, businesses sponsoring group health plans in 2014 must self-assess the adequacy of their group health plan’s compliance with a long list of ACA and other federal mandates in 2014 and to the extent that there exist uncorrected violations, to self-report these violations and self-assess on IRS Form 8928 and pay the required excise tax penalty of $100 for each day in the noncompliance period with respect to each individual to whom such failure relates.  For ACA violations, the reporting and payment deadline generally is the original due date for the business’ tax return. Absent further regulatory or legislative relief, businesses providing group health plan coverage in 2014 or thereafter also should expect to face similar obligations and exposures.  As a result, businesses that sponsored group health plans in 2014 or thereafter should take affirmative steps to act quickly to verify the adequacy of their group health plan’s compliance with all ACA and other group health plan mandates covered by the Code Section 6039D reporting requirements.  Prompt action to identify and sel-correct covered violations may mitigate the penalties a company faces under Code Section 6039D as well as other potential liabilities associated with those violations under the Employee Retirement Income Security Act (ERISA), the Social Security Act, or other federal laws. On the other hand, failing to act promptly to identify and deal with these requirements and the potential reporting and excise tax penalty self-assessment and payment requirements imposed by Code Section 6039D can significantly increase the liability the business faces for these violations substantially both by triggering additional interest and late payment and filing penalties, as well as forfeiting the potential opportunities that Code Section 6039D otherwise might offer to qualify to reduce or avoid penalties through good faith efforts to comply or self-correct.

While current guidance allows businesses the opportunity to extend the deadline for filing of their Form 8928, the payment deadline for the excise taxes cannot be extended. Code Section 6039D provides opportunities for businesses to reduce their excise tax exposure by self-correction or showing good faith efforts to comply with the ACA and other group health plan mandates covered by Code Section 6039D.  Businesses need to recognize, however, that delay in identification and correction of any compliance concerns less likely to qualify for this relief.  Accordingly prompt action to audit compliance and address any compliance concerns is advisable to mitigate these risks as well as other exposures.

Other Enforcement & Liability Risks

Beyond the impending Form 8928 excise tax responsibilities, employer and other health plan sponsors, fiduciaries, insurers and administrators also need to update their health plan compliance and risk management in anticipation of other challenges. Many health plan sponsors, fiduciaries, administrators, insurers and other vendors and advisors have allowed ongoing challenges and debates about ACA in the Courts, Congress and the media to lull them into delaying investing the money and other resources required to review and update of their programs for compliance with ACA and a host of other federal rules and court decisions impacting their programs and its associated risks. With their impending Form 8928 disclosures providing invaluable admissions of potential exposures and the Obama Administration and plaintiff’s bar likely to take King as a green light to enforce ACA and other group health plan mandates, plan sponsors, fiduciaries, insurers and administrators can expect greater scrutiny and challenges of their health plan design and administration by private plaintiffs, the Department of Labor, Department of Health & Human Services, IRS, and in the case of insured arrangements, state insurance regulators. Officers, directors and management leaders of employer or other sponsors of plans facing expenses from delayed or flawed compliance efforts, as well as their health plan insurers, administrative service providers, brokers, consultants, stop los insurers, auditors and other vendors and advisors also should brace for demands and other painful pushback from employers or health plan fiduciaries looking to shift liability to advisors or vendors for costs and damages resulting from claims or other enforcement liabilities resulting from delayed enforcement in alleged reliance upon the advisor or vendor.  Strategic actions taken now could help mitigate potential exposures and other fallout of these and other health plan compliance delays.

Liabilities Make Advisable Engaging Legal Counsel For Privilege & Other Risk Management Assistance. 

Businesses preparing to conduct audits also are urged to consider seeking the advice from qualified legal counsel experienced in these and other group health plan matters before initiating their audit as well as regarding the evaluation of any concerns that might be uncovered. While businesses inevitably will need to involve or coordinate with their accounting, broker, and other vendors involved with the plans, businesses generally will want to preserve the ability to claim attorney-client privilege to protect all or parts of their audit investigation and analysis and certain other matters against discovery as well as assistance with proper evaluation of options in light of findings and assistance from counsel to document the investigation and carefully craft any corrective actions for defensibility.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms.Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.  Ms. Stamer uses her deep and highly specialized 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, ex-patriate 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.

Ms. Stamer helps management manage.Ms. Stamer’s legal and management consulting work throughout her 27 plus 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 management operations 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.

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 presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice 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; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.  She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see www.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 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.

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Obama Administration Devoting $1.25 Million To Find Ways To Encourage States To Force Employers To Give Paid Leave

June 16, 2015

The Obama Administration took another step in its efforts to compel employers to provide paid leave to workers today with the U.S. Department of Labor’s announcement of its investment of $1.25 million to research and analyze how paid leave programs can be developed and implemented across the country. The department’s Women’s Bureau will administer the funding opportunity.  See Paid leave effort gets $1.25M to study expansion in U.S.

According to today’s announcement, the Department of Labor will award up to 10 grants of up to $250,000 each. Eligible applicants include government entities from States, U.S. Territories and Possessions, counties and cities with at least 100,000 residents, and federally recognized Indian/Native American tribes with a population of at least 50,000. This funding opportunity builds upon a 2014 grant program that awarded a total of $500,000 to support paid leave feasibility studies in three states and the District of Columbia.

The grant opportunity was announced during a Google+ Hangout on paid leave that included Women’s Bureau Director Latifa Lyles, Senior Advisor to the President Valerie Jarrett, YouTube CEO Susan Wojcicki, and others. The Google+ Hangout was a virtual stop on the “Lead on Leave” tour, an effort by senior Administration officials to highlight the importance of paid leave for working American families.

The Department of Labor also announced that it will hold a webinar for prospective applicants on Wednesday, June 24, 2015, at 1:00 p.m. EDT. Participants will have an opportunity to ask questions during the webinar. Interested prospective applicants must register for the webinar in advance of the event by clicking here.

Today’s announcement is part of an aggressive campaign by the Obama Administration to require employers to provide paid leave.  The Obama Administration estimates that  40 percent of private-sector employees work at a company that does not offer sick pay for their own illness or injury and that low- and middle-income workers are much less likely to be offered paid sick leave than highly paid workers. Disregarding concern about the added adverse effect on hiring and wages that business leaders and others say will result if the federal government burdens U.S. employers with additional paid leave, increased minimum wage and other mandates, the Obama Administration is moving forward on its plans to force U.S. employers to provide paid leave to workers.

In pursuit of this goal, while his party controlled both the House and Senate on December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act, Public Law 111-119, which amended section 101(2) of the Family and Medical Leave Act (FMLA) to establishes a special hours of service eligibility requirements for airline flight attendants and flight crew members that make it easier for these workers to qualify for FMLA Leave and expanded FMLA coverage for military families.  Over the past year, the Obama Administration also has amended its FMLA regulations to make clear that the Obama Administration expects private sector employers covered by the FMLA to offer family leave to same-sex domestic partners on the same terms as for heterosexual married couples in the wake of the Supreme Court’s Windsor decision.

Beyond these and other regulatory and administrative actions, the Obama Administration also is on the record for supporting further amendments to the FMLA to extend its mandates to smaller employers as well as to add federal mandates that would mandate that many employers allow their workers to earn up to 7 days per year of paid sick time, which to care for themselves or for a sick family member.

With Republicans now the controlling party in the House and Senate, however, Republican opposition has slowed the Administration’s efforts to advance this agenda legislatively.  As a result, the Administration, as it has done in many other areas where it is unable to garner the necessary support to achieve change legislatively, now is looking for other means to promote its objectives.   For instance, President Obama’s budget proposals called for millions of dollars of funding for a State Paid Leave Fund for the Department of Labor to use to help encourage states to enact paid leave mandates or other arrangements by helping to cover start-up costs for states that choose to launch paid leave programs as well as to provide additional funding to the Women’s Bureau at the Department of Labor to exploring options for improving the collection of data and the promotion of other funding to advance the Administration’s agenda for imposing added responsibilities on employers relating to parental leave, child care responsibilities, usage of family leave insurance programs, and other topics related to the intersection of work and family responsibilities.

Along with these efforts to impose added paid leave responsibilities upon private sector employers, the Obama Administration also wants to spend more taxpayer dollars providing additional paid leave for federal workers.  While federal workers already have access to paid sick leave and vacation time, this currently doesn’t include paid time off specifically for Federal employees to use when they have a newborn baby, or who choose to adopt or foster a child, have no paid leave that they can access specifically to meet those responsibilities. The Obama Administration is on record that it believes that the federal government should provide paid parental leave to federal employees to help federal employees to care for their families.

Today’s announcement confirms that the Obama Administration is working to expand employer paid leave mandates with or without Congressional approval.  Employers concerned about the potential costs and other burdens of such mandates should carefully monitor the studies and other activities of the Administration at the federal and state level and express any concerns to their elected Federal and state officials early and often to help ensure that these concerns are properly appreciated and taken into account.

For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, Ms. Stamer is a practicing attorney, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience advising government contractors and other private sector and public employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about performance management and internal controls, OSHA and other safety and occupational injury management and compliance, OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. Her work includes strategic planning and advice, contract, settlement and other negotiation, handbook and other policies and procedures, contract, employee benefit and other drafting, design, review and enforcement, real time crisis and other management response, investigations, defense, mitigation, training, management regulatory and legislative advocacy and other management representation.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

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.

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

6/2 Deadline To Claim Special Penalty Relief Available for Late Returns Filings By Certain Small Retirement Plans

May 6, 2015

June 2, 2015 is the deadline for small employers sponsoring retirement plans who failed to meet the Internal Revenue Code’s employee benefit plan Form 5500 reporting requirements to claim the penalty relief available under the one-year temporary pilot program announced by the Internal Revenue Service (IRS) on June 2, 2014 to help qualifying businesses that may violated the rules because they were unaware of the reporting requirements.

All employee benefit plan sponsors and administrators should make understanding and arranging for timely preparation and filing of Form 5500s and other returns and other reports and disclosures required by the Code and other laws like the Employee Retirement Income Security Act (ERISA) a priority.

Under the Internal Revenue Code, plan administrators and sponsors of retirement plans who fail to file required annual returns, can face stiff penalties – up to $15,000 per return. Where the plan also is subject to a Form 5500 filing requirement under ERISA, additional penalties also can apply for late or nonfiling of the required form.

As part of their efforts to outreach to small and other employer plan administrators and sponsors, both the IRS and Department of Labor are offering voluntary compliance programs to encourage plan sponsors and administrators to voluntarily come into compliance with these requirements who previously have failed to file required Form 5500s. The pilot program announced June 2, 2014 and scheduled to close June 2, 2015 is an example of one of those programs. By filing late returns by June 2, eligible filers filing under the program can avoid the potentially significant penalities that the IRS otherwise might impose for non- or late filing of the required returns.

This program is generally open to certain small business (owner-spouse) plans and plans of business partnerships (together, “one-participant plans”) and certain foreign plans. Those who have already been assessed a penalty for late filings are not eligible for this program.

When considering making a filing under the IRS pilot program, a plan sponsor or plan administrator also should evaluate whether there also are non-filing or late filing exposures arising under the Form 5500 filing requirements of ERISA that may need resolution. If so, consideration should be given also to file the return under the Department of Labor’s Voluntary Compliance Resolution Program for late filers.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker, management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns.  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

                                                        About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved

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Posted by Cynthia Marcotte Stamer

IRS FAQ Addresses Determination Letter Program As Applied To Multiple Employer Plans

May 6, 2015

Multiple employer plans, -i.e., a plan maintained by two or more employers that don’t have sufficient overlapping ownership to be considered a single employer for purposes of the Internal Revenue Code (Code) or other laws-can be attractive options for some plan sponsors to minimize their individual costs for offering qualified deferred compensation or other employee benefit plans. Sponsors, fiduciaries and participating employers involved with these arrangements need to keep in mind, however, that these arrangements also often trigger special legal rules, exposures and operational challenges under the Internal Revenue Code (Code), the Employee Retirement Income Security Act (ERISA) and other laws.

One of these issues can be the scope of protection that a determination letter issued to a plan sponsor of a multiple employer plan. To help clarify some common questions about the treatment of multiple employer plans in its determination letter program, the Internal Revenue Service (IRS) on March 30, 2015 published a new set of “Frequently Asked Questions” (FAQs) that provide some insights about the IRS’ current position on some of these issues, subject to the understanding that IRS does not consider its answers to frequently asked questions as appropriate for citation as legal authority. Subject to this disclaimer, the new FAQ states:

Does each adopting employer have to come in for an individual determination letter?

No, it’s not necessary for all adopting employers to apply for a determination letter on Form 5300, Application for Determination for Employee Benefit Plan. The sponsors of the plan have two choices:

  1. Submit just for a determination letter on the plan; or
  2. Submit for letter on the plan and a letter for each employer maintaining the plan who wants an individual letter. See Revenue Procedure 2015-6, section 10.

Are the adopting employers required to give Notice to Interested Parties if they are not coming in for individual letters?

Yes, each employer must provide notice to interested parties. The rule permitting one consolidated determination letter for a multiple employer plan does not change the “Notice to Interested Parties” requirement.

Do the employers maintaining the plan have reliance on the determination letter issued to the plan?

Yes. Revenue Procedure 2015-6, section 10, states: “An employer maintaining a multiple employer plan can rely on a favorable determination letter issued for the plan except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b) and 414(s), and, if the employer maintains or has ever maintained another plan, §§ 415 and 416.”

Is a volume submitter plan’s submission cycle affected if it changes to a multiple-employer plan?

No, conversion of a volume submitter (VS) plan to a multiple-employer plan does not take the plan off of the 6-year remedial amendment cycle. A VS plan may be designed to be used as either a single-employer or as a multiple-employer plan. Conversion occurs when the adopting employer decides to allow an unrelated employer to also adopt its VS plan. Even if the employer had to modify the VS plan to allow it to be used as a multiple-employer plan, this would not remove the employer from the 6-year cycle because a multiple employer plan is not an impermissible plan type for a VS plan.

What form is used to request a determination letter for a VS plan that was modified to be a multiple-employer plan?

An employer requesting a determination letter for a VS plan that was modified for use as a multiple-employer plan should file Form 5300 (not Form 5307). The Form 5300 has to be used because the Form 5307 does not accommodate filings by multiple- employer plans. If the employer has not modified the VS plan at all, for example, because the VS plan allows for use as either a single-employer or as a multiple-employer plan, the employer has reliance on the VS advisory letter issued to the document provider and should not file for its own determination letter.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns.  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

5/11 Deadline To Comment On Proposed Rule On Charter School Plan As Government Plan

May 6, 2015

Monday, May 11, 2015 is the deadline to submit comments about proposed regulations which would address the conditions under which a State or local retirement system that covers employees of a public charter school will qualify as a “government plan” under Internal Revenue Code (Code) Section 414(d). The Department of Treasury and Internal Revenue invited the comments on its proposed regulation in Notice 2015-7.  Interested organizations concerned about the treatment of such arrangements should review the proposed regulations and comment as soon as possible and by May 11.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns.  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

Comments Off on 5/11 Deadline To Comment On Proposed Rule On Charter School Plan As Government Plan | church plan, Employee Benefits, government plan, health plan, retirement plan, Tax | Tagged: , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Rules Requires New Construction Industry Close Space Safeguards 

May 1, 2015

The Occupational Safety and Health Administration today issued a final rule to increase protections for construction workers in confined spaces. Compliance assistance material and additional information is available on OSHA’s Confined Spaces in Construction Web page.  The new Rule imposes new safety standards for construction work in small spaces.

OSHA says manholes, crawl spaces, tanks and other confined spaces are not intended for continuous occupancy. They are also difficult to exit in an emergency. People working in confined spaces face life-threatening hazards including toxic substances, electrocutions, explosions and asphyxiation. For instance, last year two workers were asphyxiated while repairing leaks in a manhole, the second when he went down to save the first — which is not uncommon in cases of asphyxiation in confined spaces.

“In the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen,” said Secretary of Labor Thomas E. Perez. “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.”

The rule will provide construction workers with protections similar to those manufacturing and general industry workers have had for more than two decades, with some differences tailored to the construction industry. These include requirements to ensure that multiple employers share vital safety information and to continuously monitor hazards — a safety option made possible by technological advances after the manufacturing and general industry standards were created. 

“This rule will save lives of construction workers,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Unlike most general industry worksites, construction sites are continually evolving, with the number and characteristics of confined spaces changing as work progresses. This rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”

The guidance reflects the growing emphasis of OSHA on construction safety.  Construction employers should take steps to immediately comply with these new requirements as well as review the adequacy of their other safeguards for compliance with the ever-tightening mandates of OSHA for construction industry employers.

For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

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.

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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2016 & 2017 Health Plan Budgets, Workplans Should Anticipate Expected Changes To SBCs

April 28, 2015

Employer and union group health plans and health insurers should plan for the need to update their processes for preparing and distributing the Summary of Benefits & Coverage (SBC) that  Patient Protection & Affordable Care Act (ACA) requires them to distribute to covered persons as part of their preparations for their 2016 plan year enrollment periods later this year and to prepare to respond to changes to the required SBC templates used to prepare their SBCs in 2017, according a recent update on proposed changes to existing SBC guidance recently released by the Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments).

The duty to provide SBCs imposed by Public Health Service (PHS) Act section 2715, as added by ACA and incorporated by reference into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code), generally requires group health plans and group and individual insurers to prepare and provide a current SBC using template forms completed and provided in accordance with regulations jointly issued by the Departments..

Currently, the content, form, timing of distribution and other conditions that group health plans and health insurers currently must meet to fulfill § 2715’s SBC mandate are governed by the SBC final regulations jointly published February 14, 2012 and an accompanying document announcing the availability of templates, instructions, and related materials, as supplemented in six sets of FAQs regarding implementation of the SBC requirements. See final regulations, published at 77 FR 8668 (February 14, 2012) and guidance document published at 77 FR 8706 (February 14, 2012); Affordable Care Act Implementation FAQs Part VII available here and here; Part VIII available here  and here;  Part IX available here  and here;  Part X available here and here;  Part XIV available here and here and Part XIX available here and here.  

While group health plans, health insurers, their sponsors and administrators have continued to rely on this existing guidance when preparing and providing currently required SBCs, concern about the lead time required to conduct the analysis and other preparations needed to prepare the SBCs, has lead most health plans, health insurers, and their sponsors or administrators to monitor the proposals to modify current SBC guidance published by the Departments on December 30, 2014, which if adopted as originally published would require updates to the SBCs effective September 1, 2015.  See here.

According to their latest update on plans to finalize these proposed changes, the Departments announced on March 30, 2015 in FAQs about Affordable Care Act Implementation (Part XXIV) that the Departments now plan to finalize changes to the regulations in the near future and for these changes to take effect for coverage that would renew or begin on the first day of the first plan year (or, in the individual market, policy year) that begins on or after January 1, 2016 (including open season periods that occur in the Fall of 2015 for coverage beginning on or after January 1, 2016).  

FAQ Part XXIV also states that the Departments intend to finalizing revisions to the SBC template and associated documents. The Departments anticipate the new template and associated documents will be finalized by January 2016 and will apply to coverage that would renew or begin on the first day of the first plan year (or, in the individual market, policy year) that begins on or after January 1, 2017 (including open season periods that occur in the Fall of 2016 for coverage beginning on or after January 1, 2017).

Employer and other group health plan sponsors, individual and group health insurers and their administrators should include the expected need to respond to these anticipated updates to the SBC requirements in their planning and budgets for the 2016 and 2017 plan years and stay tuned for the Departments publication of the final rules expected later this year and updated templates thereafter.

For Help With Risk Management, Compliance & Other Management Concerns

If you need help to assess, update or defend your organization’s health or other employee benefit, human resources or other compliance and risk management processes, policies, practices or actions, please contact the author of this update, management attorney and consultant Cynthia Marcotte Stamer here or at (469) 767-8872.

Recognized as a “Top” Lawyer in Labor & Employment, Employee Benefits and Health Care law, Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, Ms. Stamer is widely recognized for her extensive, leading edge work helping employer and other plan sponsors, fiduciaries, insurers and administrators design, document, communicate, administer and defend health and other employee benefit plan designs,management manage, promote and defend health and other employee benefit plans and related human resources, insurance and other practices, policies, systems and processes.

A management attorney who helps management to promote their organizational goals by using the law and process to manage internal and external people, their performance, compensation and benefits and other operational resources and risks, Ms. Stamer has worked with a broad range of other public and private organizations with human resources, labor and employment, employee benefits, insurance and risk management, vendor and services procurement and management, contracting and policy and procedures drafting and enforcement, investigations, defense and remediation throughout her more than 27 year career.

Ms. Stamer works, publishes and speaks extensively on health and other employee benefit plan, human resources and other workforce management, reengineering, audits and investigations, 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  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 ABA, Insurance Thought Leadership, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

$1.4M FLSA Back Pay Award Demonstrates Worker Misclassification Risks

April 22, 2015

Construction industry and other employers should learn from schooling the U.S. Department of Labor (Labor Department) just gave four Long Island City plumbing and heating companies about the consequences of misclassifying workers as independent contractors, underpaying workers by failing to pay required overtime, and failing to keep required timekeeping records in violation of the Fair Labor Standards Act (FLSA) minimum wage, overtime and recordkeeping requirements. The lawsuit and resulting settlement clearly highlight the growing risks that construction industry and other employers run by misclassifying workers as independent contractors or otherwise failing to pay and maintain necessary documentation proving that the employer properly classifies and pays workers considered common law, non-exempt employees as required by the FLSA.

The settlement resolves a FLSA lawsuit brought by the Labor Department Wage & Hour Division against four related contractors in Perez v. Thomas Andreadakis; Leonidas Andreadakis; Helen Andreadakis; Danica Group LLC; Copper Plumbing & Heating LLC; Copper II Plumbing & Heating LLC; Copper III Plumbing & Heating LLC.. in the Eastern District of New York.

Worker Misclassification Risks Under FLSA Act

Under the FLSA as interpreted and enforced by the Wage & Hour Division, employers misclassify workers by failing to distinguish employees from bona fide independent contractors. An employee — as distinguished from a person who is engaged in a business of his or her own — is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business that he or she serves. For more information, visit here

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records. The FLSA provides that employers who violate the law are liable to employees for their back wages and an equal amount in liquidated damages. Liquidated damages are paid directly to the affected employees.

Contractor Lawsuit & Consent Decree Show FLSA Misclassification Risks

The suit arose after Wage and Hour Division investigators found that the contractors misclassified workers, failed to pay required minimum wages and overtime, and failed to keep required records in violation of the FLSA.  Among other things, the investigation revealed that the contractors paid straight time wages rather than time and one-half when employees worked beyond 40 hours in a workweek and attempting to conceal the violations by paying the straight time payments for overtime hours with separate paychecks from a petty cash account.

Additionally, the investigation also revealed that the contractors misclassified at least 25 employees as independent contractors, then paid these misclassified workers a weekly salary that did not compensate the employees at time and one-half when employees worked beyond 40 hours in a workweek. The Labor Department also found the employers also frequently paid many employees late, sometimes requiring workers to wait several weeks to be paid. Finally, the Wage and Hour investigation found that the employers maintained incomplete and inaccurate payroll records.

Under the terms of the consent judgment entered with the U.S. District Court for the Eastern District of New York, the contractors must pay the workers $710,000 in back wages covering the time period between September 2010 and April 2014, and an equal amount in liquidated damages.  The contractors also must take a series of specific corrective actions to improve their payroll recordkeeping, ensure that employees are paid on time each week, reclassify as employees those who were previously misclassified as independent contractors and properly pay them.

DOL Warnings About Misclassification Of Workers As Independent Contractors

Beyond its obvious less about the general dangers for employers that fail to comply with the FLSA minimum wage, overtime and recordkeeping requirements, the lawsuit and Labor Department’s announcement of its settle highlight the growing risks for employers that result from the misclassification of workers as independent contractors.

Echoing a growing series of previous warnings about misclassification abuses by Wage and Hour Division and other federal agencies in recent years, Wage and Hour Administrator Dr. David Weil sent a strong message to U.S. employers about the risk of misclassification of workers and other violations of the FLSA when announcing the settlement of the litigation through the consent decree by stating:

“The misclassification of employees as independent contractors deprives workers of wages and benefits they are entitled to under the law, thereby hurting our economy. It also leads to unfair competition because businesses that play by the rules operate at a disadvantage to those that don’t.”

Jeffrey Rogoff, regional Solicitor of Labor in New York, echoed this warning about the risks of worker misclassification, stating, “Underpaying and misclassifying employees as independent contractors are illegal and unacceptable actions. The Labor Department will pursue all available legal measures to ensure that workers are properly classified and compensated for their work.”

In the face of this and other recent enforcement actions targeting wage and hour violations generally and misclassification of workers specifically, all U.S. employers should review and tighten their worker classification, timekeeping, minimum wage and overtime, recordkeeping and other practices to position their organization to withstand challenges by the Wage and Hour Division, private litigants or both.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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National Infant Immunization Week Great Time To Review Your Family’s Immunizations

April 22, 2015

Great Time To Remind Employees & Families To Do Immunization Check Up

PROJECT COPE: COALITION ON PATIENT EMPOWERMENT

April 18–25 is National Infant Immunization Week. Publicity over measles, rotavirus, pertussis, polio, rubella, various flu strains and the much rarer Ebola and other viruses have helped remind Americans that immunizations play a critical role in protecting their families and others in their communities from potentially deadly or disabling diseases disease.

Decisions about what immunizations you and your family members should or should not get should be tailored to your individual health risk profile, in consultation with your physician taking into account the latest medical evidence and risk data.   While some immunizations make sense for the majority of individuals, other vaccinations may be unnecessary or inappropriate for others.  Decisions about what immunizations to get and when can depend on a wide range of factors unique to the individual health, lifestyle, community and situation of the individual, the contagious disease and other risk profiles of the communities in which they live…

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Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status

April 9, 2015

Employers covered by the Family & Medical Leave Act (FMLA) have a temporary reprieve from the obligation to comply with a change to the FMLA regulations’ definition of “spouse” that requires FMLA-covered employers to recognize certain same-sex relationships as marriages for purposes of the FMLA that had been slated to take effect on March 27, 2015 under a preliminary injunction order granted by the District Court for the Northern District of Texas in Texas v. U.S, No. 7:15-cv-00056-O, 2015 BL 84253 (N.D. Tex. Mar. 26, 2015).   However the delay in the implementation of the regulation as a practical matter may present traps for unwary employers in light of federal employment discrimination law rules that prohibit employers from discriminating against employees based on sexual orientation or gender identity. 

The preliminary injunction issued by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas on March 26 rule enjoins the Labor Department from enforcing a final regulation that would require employers covered by the FMLA to grant workers in legal same-sex marriages to take job-protected leave under the FMLA to care for a seriously ill spouse even if the state where the employee lives or works doesn’t recognize same-sex marriages.

The preliminary injunction resulted from a lawsuit brought by the attorney generals of Texas, Arkansas, Louisiana and Nebraska questioning the validity of change to the definition of “spouse” in DOL Regulation § 825.102 and § 825.122 to expand the definition of the term “spouse” for purposes of the FMLA to include same-sex relationships recognized as marriage under the state law of the location of the marriage celebration.

The Final Regulation redefining the term “spouse” for purposes of the FMLA is one of a host of changes to federal employment, tax, immigration and other regulations and enforcement policies announced by the Obama Administration in response to the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013).

In Windsor, the Supreme Court ruled unconstitutional and struck down Section 3 of the Defense of Marriage Act (DOMA), which sought to preclude same-sex couples from being treated as married for purposes of federal law including the FMLA by restricting the definition of marriage for federal law only to relationships between persons of the opposite sex.

If and when implemented, the FMLA Final Regulation will revise the DOL’s FMLA regulations to provide that “Spouse” means

a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a State that recognizes such marriages; or
  2. If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

According the DOL, the adoption of a place of celebration standard for determining marital status in the Final Rule ensures that all legally married employees have consistent FMLA leave rights regardless of where they live. The Department believes that this place of celebration rule will give fullest effect to the purpose of the FMLA to let employees to take unpaid, job-protected leave to care for a spouse for an FMLA-qualifying reason.  Thus, whether a same-sex or other couple qualifies as married for purposes of the FMLA turns upon whether the couple is in a relationship legally recognized as a married in the state in which the ceremony was performed.  However, the Final Regulation does not require employers to treat same-sex civil unions, as well as opposite-sex civil unions, as marriages and as such are not guaranteed the right to take FMLA spousal leave nor do have other protections of the Act, including from retaliation. As noted above, an employer may offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, including voluntarily offering other types of leave for couples in civil unions. In addition, eligible employees in civil unions can take FMLA leave for their own serious health condition, for the birth of a child or the placement of a child for adoption or foster care and for bonding, to care for their child or parent with a serious health condition, and for qualifying military family leave reasons.

In Texas v. U.S., the states jointly argued that the Final Rule unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages.  Explaining his finding that the states had demonstrated a substantial likelihood of prevailing on the merits on their claim that the Final Regulation violates the Full Faith & Credit Clause of the U.S. Constitution, Judge O’Conner wrote, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages.”  Accordingly, Justice O’Conner ordered the Labor Department to stay implementation of the Final Regulation pending a decision on the merits of the states’ claims.

Even as Judge O’Connor issued his preliminary injunction, the Obama Administration was moving ahead to implement new mandates extending sweeping new protections prohibiting government contractors and subcontractors from discriminating against workers based on sexual orientation or gender identity under an Executive Order issued by President Obama that took effect April 8, 2015.  See Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers.  Since the preliminary injunction issued by Judge O’Connor does not apply to that Executive Order, employers contemplating holding off granting FMLA rights to employees involved in same-sex relationships should consult with legal counsel about the potential that such delay, despite Judge O’Connor’s order, might form the basis of employment discrimination, government contracting regulation violations or both.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

Comments Off on Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status | Employers, Health Plans, HIPAA, Human Resources, Insurance | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers

April 8, 2015

Effective today (April 8, 2015), all U.S. businesses working as government contractors or subcontractors are prohibited from discriminating in employment against lesbian, gay, bisexual and transgender (LGBT) applicants and employees on the basis of sexual orientation or gender identity. While the new LGBT nondiscrimination rules for government contractors and subcontractors imposed by are the latest in a series of changes imposing new obligations for U.S. government contractors and other U.S. employers in their dealings with LGBT workers, all employers of 15 or more employees, not just government contractors, increasingly face employment discrimination risks and other expanding obligations to LGBT workers as a result of evolving judicial precedent and the pro-LGBT rights regulatory agenda of the Obama Administration. As publicity and the Obama Administration’s outreach about the implementation of the new nondiscrimination rules for government contractors and other announcements about these other new federal LGBT employment protections are likely to fuel new claims and demands by workers asserting these new rights, government contractors and all other employers should act quickly to ensure that their policies and benefit programs, as well as compliance and risk management procedures are properly updated to meet these changing federal rules regarding the employment rights of LGBT workers.

The new federal government contracting prohibition against sexual orientation and gender identity discrimination by federal government contractors is imposed by President Obama’s Executive Order on LGBT Workplace Discrimination, which takes effect today and applies to all federal government contractors and subcontractors regardless of the type of government contract, number of employees or project revenue. The Executive Order’s requirement that government contractors and subcontractors not discriminate based on sexual orientation or gender identity covers every type of new and modified federal contract and every establishment of those contractors and subcontractors – not just the ones directly involved in performing the contract. As a result of the Executive Order, all federal government contractors and subcontractors are prohibited from discriminating against lesbian, gay, bisexual or transgender people in hiring, firing, pay, promotion and other employment practices based on their sexual orientation or gender identity.

The Executive Order’s prohibition against federal contractors and subcontractors discriminating on the basis of sexual orientation and gender identity expressly elevates sexual orientation and gender identity to the same protected status as race, color, religion, national origin, disability and veteran status for purposes of the employment discrimination rules applicable to federal government contractors. While at this point, the Obama Administration rules do not also require federal government contractors and subcontractors to undertake any specific new record keeping, data analysis, goal setting or other similar affirmative action, government contractors and subcontractors of all types and sizes will want to take care to update their nondiscrimination policies and practices to reflect their policy against discrimination based on sexual orientation or gender identity, as well as ensure that their hiring, promotion, compensation and other employment practices and associated documentation are administered and documented to defend against potential discrimination charges based on gender identity or sexual orientation.

While the Executive Order expressly applies only to government contractors and subcontractors, in fact all employers of 15 or more employees increasingly need to be concerned about employment discrimination exposures brought by employees who are, or are perceived to be LGBT individuals, as well as keeping their employment and employee benefit practices compliant with a host of recent federal rule changes on the treatment of LGBT individuals.

On the employment discrimination front, most employers, not just government contractors, need to use care to meet their duty to protect LGBT and others from “gender stereotyping” and same-sex sexual harassment or other sex discrimination in their workplaces recognized by the courts as encompassed in Title VII’s sex discrimination protections.

Under the gender stereotyping theory recognized by the Supreme Court in Price Waterhouse v. Hopkins (1989), for instance, an employer violates Title VII if “X discriminates against Y because X believes that Y does not dress, walk, talk, etc. as members of Y’s gender typically do.”  In EEOC v. Boh Bros. Const. Co., LLC , 731 F. 3d 444 (5th Cir. 2013) for instance, the Fifth Circuit upheld Title VII gender stereotying based sex discrimination claims of an iron worker  who claimed his supervisor in the all-male work environment  accused him of being gay subjected him to highly offensive, often sexually explicit verbal and physical harassment for months because the supervisor perceived his behavior was effeminate and did not conform to the supervisor’s  idea of how a man should act.

Likewise, the EEOC and courts also have continued to recognize sexual harassment claims based on harassing conduct inflicted by a party of the same sex as the victim plaintiff.   For instance, last year the EEOC announced  that Wells Fargo Bank, N.A. agreed to pay $290,000 to four female bank tellers and take other corrective action to settle an EEOC sexual harassment lawsuit where the EEOC charged that a female manager and another female bank teller at a Wells Fargo branch in Reno, Nevada sexually harassed the women by making graphic sexual comments, gestures and images; inappropriate touching, and making suggestions to wear sexually provocative clothing to attract customers and to advance in the workplace, which the Wells Fargo allegedly failed to act quickly to stop despite complaints about the conduct from the victims.

In addition, government contractors and other U.S. employers also generally need to review and update heir employment, employee benefit plans, leave policies and other practices to ensure that they are up to date and defensible in light of the ongoing series of new rules affording new protections for LGBT workers issued by the Obama Administration in the aftermath of the Supreme Court’s ruling of the Defense of Marriage Act unconstitutional in Windsor. In the aftermath of Windsor, the Departments of Labor, Veterans Affairs, Treasury, Justice, Homeland Security and other federal agencies modified immigration, family and military leave, employee benefits, and a host of other rules to require both public and private employers and their employee benefit plans afford marriage-equivalent treatment workers involved in certain same-sex relationships as well as to extend other LGBT employment and other protections. As a result of these and other expansions in the legal protections of LGBT individuals by the Obama Administration like the Executive Order and these other regulatory and enforcement changes, as well as evolving precedent in the wake of the Windsor decision, all U.S. employers should prepare to meet new legal requirements, as well as rising expectations by members of the LGBT community about their workplace, employee benefits and other rights.

In anticipation of these rising requirements and expectations all employers including government contractors should engage legal counsel for assistance in reviewing and updating their policies and practices to comply with the evolving federal and state rules on workplace and other rights of LGBT individuals and strategies for appropriately managing the legal risks and other concerns associated with these emerging entitlements and expectations. For government contractors and other employers concerns about discrimination exposures, this discussion generally should include consideration about whether in addition updating written policies and procedures, the employer should consider workforce training, communications or other actions to promote workforce compliance with the new policies, minimize the risk that the failure to retrain the workforce might make it easier for potential plaintiffs to use events or policies occurring before the new rules became effective to help bolster post-effective date discrimination claims, and other risk management and compliance procedures.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Stamer, Others Discuss Employer, Health Plan Implications Of Anthem Breach on 4/2

March 28, 2015

Recent data breaches by Anthem, Premera and other health plan vendors present significant legal and practical responsibilities and consequences for health plans, their employer and other sponsors, fiduciaries, administrators, service providers and participants. Health Plans, Sponsoring Employers & Others Urged To Act Immediately In Response To Premera, Anthem Blue Cross BreachesSolutions Law Press, Inc. editor and author Cynthia Marcotte Stamer will be among one of the featured speakers discussing these concerns and options for managing them at an upcoming free study group conference call sponsored by the RPTE Employee Benefit Plans and Other Compensation Arrangements Group on April 2, 2015 beginning at Noon Central Time.

During the study group conference call, Ms. Stamer and other speakers, Lisa Van Fleet and Chuck Thulin, will explore challenges for plan fiduciaries, administrators and sponsors including:

  • Who is the fiduciary with responsibility over these matters
  • ERISA fiduciary duties to investigate and respond to breaches
  • Fiduciary obligations in connection with selection of vendors
  • Curtailing data leakage and breach exposure by addressing delegation rights of vendors
  • Interaction with HIPAA, IRC, and other laws
  • Breach notification and ERISA communication duties
  • Operational challenges

The conference call study group is a free benefit for members of the American Bar Association RPTE Section. Other attorneys and ABA members are invited to join and get involved with RPTE and the Group.The following is the dial in information for the call:

Dial in number: 866/646-6488

Participant Pass code: 725 588 7619

For Help With Risk Management, Compliance & Other Management Concerns

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

Scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights, a faculty and steering committee for the Southern California ISSA-HIMSS Health Care Privacy Program, Board Certified in Labor & Employment Law, a Fellow in the American College of Employee Benefits Counsel  recognized as a “Top 100″ lawyer in labor and employment, employee benefits and health care law, Ms. Stamer is nationally recognized for her work, publications, public speaking and education and other leadership on privacy and data security and other risk management and compliance.

A management attorney who works with businesses and government to manage and redress people, process and risk, Ms. Stamer has worked extensively on data and other privacy risk management and compliance,  Throughout her career, she has conducted investigations and advised, and assisted health care, insurance, retail and a broad range of other public and private organizations with privacy and data security audit and risk management, contracting, investigation, defense and remediation throughout her more than 25 year career.

Past Chair and of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits,  past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, current Co-Chair of the RPTE Welfare Benefit Committee and Vice Chair of the ABA TIPS Employee Benefits Committee, Ms. Stamer works, publishes and speaks extensively on cyber crime and other privacy, 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  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 ABA, Insurance Thought Leadership, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

As part of her extensive involvements in privacy and data security concerns, Ms. Stamer will be among the panelists discussing “Fiduciary Obligations In the Context of a Data Breach” conference call to be hosted on April 2, 2015 by Fiduciary Responsibility Committee of the American Bar Association (ABA) Real Property Probate and Estate Section Employee Benefits & Other Compensation Group.  During the program, Ms. Stamer and other panelists will discuss the quagmire of fiduciary legal and operational challenges that data breach announcements by health plan vendors and insurers present for employer and union-sponsored health plan fiduciaries and health plans.  She also will serves as the scribe for the upcoming ABA Joint Committee On Employee Benefits Annual Agency Meeting with the Federal agency that enforces HIPAA, the Office of Civil Rights, and 2014 Conference Chair and  steering committee and faculty member of the Southern California ISSA/HIMSS Healthcare Privacy & Security Summit scheduled for June 4, 2015 in Los Angeles.

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 information about participation in the April 2 Conference Call or joining the Committee, see here.

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Congress Passess Joint Resolution Overturning NLRB “Quickie Election Rule”

March 27, 2015

The new Republican Majority in Congress is moving quickly to attack and overturn a series of pro-union rules implemented under the leadership of the Obama Administration. Today, for instance, a Joint Resolution that seeks to invalidate the National Labor Relations Board (NLRB) “election now, hearing later” “quickie election rule” was presented for signatures to President Obama.

Passed by the Senate March 4, 2015 and the House on March 19, 2017 and presented to the President on March 27, 2015, S.J.Res.8 provides Congressional disapproval of, and specifies that the quickie election rule is to have no force and effect on union representation case procedures.

Adopted by the NLRB December 12, 2014 at 79 Fed. Reg. 74308 (Dec. 15, 2014), the quickie election rule would make it more difficult for employers to oppose union organizing elections by subjecting employers to what some commentators refer to as “ambush elections.” The procedural changes to NLRB election procedures implemented by the quickie election rule place employers at a significant disadvantage when faced with a union demand for an election,

Incorporating most of the procedures contained in a 2011 NLRB proposal previously invalidated by the District of Columbia’s district court in Chamber of Commerce of the United States v. NLRB, 879 F. Supp. 2d 18, 21, 25, 30 (D.D.C. 2012), the quickie election rule as finalized by the NLRB among other things requires that:

  • Union elections generally be held within 10 to 21 days after the petition filing, rather than the previous rule’s 42 days;
  • Any pre-election hearings occur eight days after the petition filing;
  • Employers to file before the pre-election hearing a position statement addressing threshold issues such as unit appropriateness, bargaining unit exclusions, and the proposed date, time and location of the election;
  • Scheduling of post-election hearings 14 days after the filing of objections;
  • Employers seeking a pre-election hearing to provide the union with two lists identifying employees in the challenged petitioned-for unit and in what the employer argues is the appropriate unit;
  • Within two days after the unit is decided, the employer to provide an electronic list of employees including names, addresses, phone numbers, work locations and classifications. Employees’ personal phone numbers and email addresses must be provided if available to employer.
  • Once a union is certified, barring employees from seeking to decertify the election until the later of one year or the expiration of the first collective bargaining agreement.
  • At the pre-election hearing, the parties generally to litigate issues necessary to determine the appropriateness of conducting an election but allowing deferral of the decision of certain eligibility and inclusion issues decided by an NLRB regional director until the post-election stage.

The Joint Resolution to overturn the quickie election rule is part of an ongoing battle between Republicans, who following the November 2014 elections now hold a slim majority of the seats in both the House and Senate, and President Obama and Congressional Democrats, who since Mr. Obama’s election have acted aggressively to promote and expand union rights and safeguards. Since the November, 2014 elections, President Obama has promised to act aggressively to continue to promote pro-union and other policies opposed by Republications by executive order, rulemaking, veto and enforcement authority. Look for more battles over these and other contested policies in the months ahead.

For Help or More Information

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related challenges

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 26 year career,

Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

IRS Changes Plan Correction Procedures

March 27, 2015

Revenue Procedure 2015-27 modifies Revenue Procedure 2013-12, 2013-4 I.R.B. 313 to make miscellaneous changes made to improve EPCRS, such as reducing VCP compliance fees relating to failures to meet the requirements of Internal Revenue Code § 72(p) with respect to participant loans, and clarifying that for certain overpayments, as defined in sections 5.01(3)(c) and 5.02(4) of Rev. Proc. 2013-12, a plan may use correction methods other than the correction methods set forth in section 6.06(3) and 6.06(4) of Rev. Proc. 2013-12.  This revenue procedure also requests comments on recoupment of overpayments.  

For Help or More Information

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related challenges

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 26 year career,

Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Texas Employers Top Target For EEOC Charges

March 26, 2015

Texas employers lead the list of employers that should act to tighten their employment discrimination compliance and risk management to prepare for heightened  likelihood of  charges, litigation and other  enforcement.

Texas employers remain the most frequent target of discrimination charges, Equal Employment Opportunity Commission (EEOC) statistics show.

With EEOC and other agencies as well as private litigants growing more aggressive in bringing claims and judgements, sanctions, investigation and defense costs rising, all employers should evaluate the adequacy of current policies and practices, tighten documentation, weigh the need for employment practices liability coverage and take other steps to minimize exposures to these claims and prepare to defend against allegations of discrimination.  With Texas leading the charge list, Texaa employers particularly should be sensitive to their potential exposure.

 For Representation, Training & Other Resources

If you need assistance monitoring or addressing human resources, internal controls, employee benefits or compensation  risks, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help. 

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work. A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related representations. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 25 year career, Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations. In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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. Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

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ACA Prohibits Employer Paying Individual Health Premiums For Employees, IRS Says Again

March 22, 2015

Employers cannot pay for or reimburse employees for any portion of the cost for the employee to buy individual health insurance coverage for himself or his family from a Health Insurance Exchange or “Marketplace” established as part of the health care reforms of the Patient Protection & Affordable Care Act (ACA) or otherwise.  That’s the message of new IRS Notice 2015-17. Employers that since 2013 have paid for or reimbursed employers for individual health insurance costs through a cafeteria plan or otherwise in 2014 should contact qualified legal counsel experienced in the health plan rules of ACA and federal health plan rules to discuss their practice, the extent to which any payments or reimbursements previously paid can qualify for special temporary relief granted to small employers under IRS Notice 2015-17, and what if any corrective action the employer needs to take to correct any compliance concerns associated with current or prior year’s practice of paying for or reimbursing individual health policy costs.

Although certain brokers and consultants continue to aggressively promote arrangements under which employers pay for or reimburse employees for individual health policy premiums as a way for employers to circumvent some of the challenges for employers of offering health coverage to employees under the group health plan rules of ACA, the IRS, DOL and HHS have made clear since early 2013 that they view such practices as prohibited by ACA’s Market Reforms, regardless of whether the payment or reimbursement is done on a pre-tax or after-tax basis, or done through a formal “plan” or through any other employer payment plan or arrangement.  See FAQs About Affordable Care Act Implementation (Part XI) issued by the Department of Labor (DOL) and Department of Health & Human Services (HHS) on January 24, 2013; Notice 2013-54 and DOL Technical Release 2013-03 issued on September 13, 2013; IRS FAQ on Employer Healthcare Arrangements; and FAQs About Affordable Care Act Implementation (Part XXII) issued by DOL  and HHS on November 6, 2014.

While reaffirming the IRS, HHS and DOL’s previous guidance indicating that ACA’s Market reforms prohibit employer payment plans, Notice 2015-17 also:

  • Announces temporary transitional relief from excise tax penalties under Code § 4980D for certain arrangements maintained by qualifying small employers that maintained such arrangements in 2014.
  • Provides additional guidance on the tax treatment of employer payment plans; and
  • Supplements and clarifies the guidance provided in Notice 2013-54 and other guidance about ACA’s prohibition of employer payment plans.

In light of this guidance, any employer currently maintaining such arrangement immediately should consult with qualified legal counsel within the scope of attorney-client privilege about their arrangement, among other things to evaluate:

  • The legality of the existing and proposed arrangements and their liability and other implications on the employer’s compliance with ACA and resulting liabilities and responsibilities resulting therefrom in light of the additional guidance on the tax treatment of such arrangements set forth in Notice 2015-17, as well as previously published IRS and other Tri-Agencies guidance about employer payment plans; and
  • Whether any action needs to be taken to address any potential violation of Tri-Agency rules resulting from the arrangement.

When conducting this evaluation, employers and others  should use care not to over-estimate the scope of the temporary relief announced in Notice 2015-17.  First, the relief announced in 2015-17 only applies for the 2014 tax year for certain small employers from the self-reporting and excise tax liability provisions of Internal Revenue Code (Code) § 4980D for failure to satisfy market reforms in relation to the specific arrangements detailed in Notice 2015-17.  In this respect, Notice 2015-17’s transition relief only applies for the 2014 tax year to employer healthcare arrangements that are :

  • Employer payment plans, as described in Notice 2013-54, if the plan is sponsored by an employer that is not an Applicable Large Employer (ALE) under Code § 4980H(c)(2) and §§54.4980H-1(a)(4) and -2;
  • S corporation healthcare arrangements for 2-percent shareholder-employees;
  • Medicare premium reimbursement arrangements; and
  • TRICARE-related health reimbursement arrangements (HRAs).

When evaluating an existing, previous or proposed employer payment arrangement, employers and others involved should consider taking steps to arrange for their discussions and evaluations to be conducted in a manner that positions the party or parties to be able to claim attorney-client privilege of the discussions and to protect such privileges against waiver to the extent possible.  In this respect, employers and others involved in such arrangements should be cognizant that certain evidentiary privileges such as accountant-client privilege that sometimes might apply for certain tax representation purposes may provide less reliable evidentiary discovery protection than attorney-client privileges under the circumstances as  discussions with accountants or other non-attorney consultants or advisors typically do not generally provide protection like attorney-client privilege in non-tax civil litigation by private plaintiffs or enforcement actions by certain of the Tri-Agencies of potential violations of the ACA Market Reform prohibition.

ACA’s prohibition against employer payment of individual health insurance policy premiums is only one of an ever-growing list of ACA and other federal health plan rules that employers and other group health plan sponsors and their plans must meet.  Many of these rules also fall under a Sarbanes-Oxley style provision of the Code that requires most employers to evaluate and maintain their health plan’s compliance with the applicable rule or self-report and self-assess and pay the applicable penalty for the violation when filing their health plan’s annual Form 5500.  With the 2014 plan year Form 5500 filing deadline rapidly approaching, employers and their health plan fiduciaries, insurer and vendors will want to act quickly to review, identify and develop a plan with legal counsel to address any potential concerns with the market reform and other requirements of federal law promptly.

For Advice, Training & Other Resources

If your business need legal advice about the your health or other employee benefit or human resources practices, assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

About Solutions Law Press

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

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

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

New Excepted Benefits Final Rule May Allow Some Employers Limited Opportunity To Offer Individually Insured Wraparound Coverage

March 20, 2015

Employers Urged Not Overestimate When Plan Qualifies As Excepted Or Overlook Other Applicable Federal Mandates

Changes to the definition of “excepted benefits” in Final Excepted Benefit Rules (Rules) published March 18, 2015 by the Departments of Labor, Health and Human Services, and Treasury (Tri-Agencies) might allow some employer and union group health plan sponsors, in limited circumstances, to offer wraparound coverage to certain employees purchasing individual health insurance in the private market, including in the Health Insurance Marketplace without violating the Patient Protection & Affordable Care Act (ACA) if the arrangements are carefully crafted to meet the specific requirements of one of two pilot programs set forth in the Rules.

Employers contemplating or maintaining arrangements that they or their service providers consider excepted benefits should use care to ensure that their arrangements are vetted in light of the latest guidance by experienced, qualified employee benefits counsel knowledgeable in these and other applicable group health plan rules and products because it is important to meet all of the requirements for qualifying the arrangement as an excepted benefit arrangement under the Rules and other applicable requirements of law to minimize the likelihood that the arrangement does not produce undesirable unanticipated consequences.

Beyond the new Rules, the Tri-Agencies have published a host of other guidance regarding the arrangements that qualify as excepted benefit arrangements and those that the Tri-Agencies view as not meeting this definition, as well as the implications of these distinctions.  This includes guidance that reflects the Tri-Agencies concerns that many arrangements prompted by certain brokers or other advisors as qualifying as excepted benefits, alone or in conjunction with other arrangements sponsored or offered by the employer, do not qualify as excepted benefit arrangements as well as guidance about potential consequences of these arrangements that the promoter or an employer considering these arrangements should fully understand before moving forward,  For this reason, employers that already provide, or are interested in providing health coverage under an employer sponsored arrangement to employees or their dependents enrolled in individual health coverage through the Health Insurance Marketplace or other privately provided individual insurance arrangement are urged to carefully review the proposed arrangement in light of the Rules, as well as to understand the treatment and implication of their proposed arrangement under other applicable Federal group health plan mandates and rules.

As interpreted by the Tri-Agencies, except for excepted benefit arrangements as defined in the Rules, employers generally cannot pay for individual health coverage or offer or provide wrap around or other group health coverage to employees that enroll in individual coverage The Rules amend the definition of excepted benefits to include under very narrow specified conditions an employer to offer specified limited coverage that wraps around individual health insurance when the employer provided coverage is specifically designed to provide “meaningful benefits” such as coverage for expanded in-network medical clinics or providers, reimbursement for the full cost of primary care, or coverage of the cost of prescription drugs not on the formulary of the primary plan and otherwise fulfills the requirements of the Rules.

The final rules permit group health plan sponsors, only in the limited circumstances identified in the Rules, to offer wraparound coverage to employees who are purchasing individual health insurance in the private market, including in the Health Insurance Marketplace.

The Rules establish two pilot programs where the Rules treat wraparound coverage as an excepted benefit that an employers can offer to individuals enrolled in health coverage through the Health Insurance Marketplace:

  • One allows wraparound benefits only for multi-state plans in the Health Insurance Marketplace; and
  • One that allows wraparound benefits for part-time workers who enroll in an individual health insurance policy or in Basic Health Plan coverage for low-income individuals established under the Affordable Care Act. These workers could, under existing excepted benefit rules, qualify for a flexible spending arrangement alternative to this wraparound coverage.

When the requirements of the Rules are met, the Rules allow employers a narrow opportunity to offer certain employees enrolled in individual coverage wrap around health coverage from the employer to enhance that individual coverage.

Because the arrangement must qualify as an excepted benefit arrangement under the Rules, employers also need to fully understand the implications of the excepted health benefit status of the anticipated arrangement under related rules like the Portability Rules of the Health Insurance Portability & Accountability Act (HIPAA), the ACA rules and other relevant laws and arrangements.

Because of the necessity to ensure that any arrangement an employer contemplates offering as an excepted benefit meet all of the required conditions to qualify for that status under the Rules and otherwise meet all other requirements of applicable law, it is important to carefully review any such proposed arrangement with qualified legal counsel.

Most employers contemplating moving forward to implement such arrangements also should consider seeking written opinions of qualified counsel that meets the Internal Revenue Service’s requirements to be a “tax reliance opinion” as well as the written opinion of the broker, insurer or other vendor promoting or endorsing the arrangement.

Employers also should keep in mind that with excepted benefit status may excuse the arrangement from the obligation to comply with certain mandates of ACA, the Portability Rules of the Health Insurance Portability & Accountability Act or certain other rules, these arrangements generally remain subject to the requirements of the Employee Retirement Income Security Act, various Code rules, and a host of other federal rules. As a result, employers should consult with qualified legal counsel about the implications and compliance of these and other health coverage arrangements to ensure that they properly understand all responsibilities and consequences of these arrangements and manage potential responsibilities and liabilities.

Employers and their health plan fiduciaries, administrators, and vendors are reminded that the excepted benefit distinction has implications on other compliance obligations and health plan treatment of the arrangement in question. For instance, excepted benefit coverage typically does not qualify as minimum excepted coverage that an employer can count as providing minimum essential coverage for purposes of the Code Section 4980H employer shared responsibility payment rules or as enrollment by the individual in minimum individual coverage for purposes of the employee avoiding liability for the individual shared responsibility payment.

Beyond ensuring that the proposed wrap around arrangement meets the requirements to qualify as an excepted benefit under the Rules, employers and those working with them on the design or use of these arrangements need to verify that the arrangements and other arrangements of the employer by their terms and in operation comply with other health plan rules and guidance.  With regard to dealings with employees who are enrolled in individual policies, employers must keep in mind the Tri-Agencies rules prohibiting employer payment or subsidization of the costs of those policies.  The Tri-Agencies have made clear that they construe ACA as prohibiting employer payment or reimbursement of the cost of individual health insurance policies (other than excepted benefit only arrangements) p covering employees or dependents whether purchased from a Health Insurance Marketplace or otherwise.  This prohibition extends to any employer payment or reimbursement arrangement, whether pre-tax or after-tax or on a group or individual basis.   See Notice 2015-17 (affirming employer payment plans or other arrangements that reimburse or pay employees for costs of individual health coverage purchased through Health Insurance Marketplaces or private insurance markets are prohibited as previously announced in Notice 2013-54). See also ACA Prohibits Employer Paying Individual Health Premiums For Employees, IRS Says Again.

About the Author

If your business need legal advice about the your health or other employee benefit or human resources practices, assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

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

About Solutions Law Press

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

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

NOTE:  This article is provided for educational purposes.  It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization.  Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances. ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Stamer, Others Discuss Fiduciary Challenges Arising From Health Plan Vendor Data Breaches On 4/2

March 18, 2015

Practicing attorney and Solutions Law Press, Inc. publisher/editor/author Cynthia Marcotte Stamer will be among the panelists discussing “Fiduciary Obligations In the Context of a Data Breach” conference call to be hosted on April 2, 2015 by Fiduciary Responsibility Committee of the American Bar Association (ABA) Real Property Probate and Estate Section Employee Benefits & Other Compensation Committee.  During the program, Ms. Stamer and other panelists will discuss the quagmire of fiduciary legal and operational challenges that data breach announcements by health plan vendors and insurers present for employer and union-sponsored health plan fiduciaries and health plans.  This discussion will explore selected challenges for plan fiduciaries, administrators and sponsors and will include a discussion of the following issues:

  • Who is the fiduciary with responsibility over these matters
  • ERISA fiduciary duties to investigate and respond to breaches
  • Fiduciary obligations in connection with selection of vendors
  • Curtailing data leakage and breach exposure by addressing delegation rights of vendors
  • Interaction with HIPAA, IRC,  and other laws
  • Breach notification and ERISA communication duties
  • Operational challenges

An American College of Employee Benefit Counsel, ABA and State Bar of Texas Fellow Martindale Hubble Premier AV Rated (the highest) and recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney, author, pubic speaker and policy advocate with more than 25 years’ experience working with health plans, insurers, health care providers and others on privacy and data security and other workforce and operational performance, compliance and risk management matters, Ms. Stamer is widely recognized for her extensive knowledge and experience on privacy and data security concerns. In addition to her extensive client work and representation on HIPAA and other privacy and data security matters for health plans, health care providers, technology and other service provider and others. Beyond her extensive client experience, she also is a recognized educator and thought leader on the management of these challenges.

Among other things, Ms. Stamer serves as the scribe for the ABA Joint Committee On Employee Benefits Annual Agency Meeting with the Federal agency that enforces HIPAA, the Office of Civil Rights, a steering committee and faculty member of the Southern California ISSA/HIMSS Healthcare Privacy & Security Summit, conducts training and speaks extensively on privacy and data security requirements and risks, and is the author of a multitude of highly regarded publications and training resources on health information and other data privacy and security compliance and risk management. For additional information about Ms. Stamer and her extensive experience, involvements and publications, see www.cynthiastamer.com.

Ms. Stamer will be joined on the panel by fellow attorneys Lisa A. Van Fleet of Bryan Cave LLP and Charles H.Thuline of Ekman Thuline, P.S.  For information about participation in the Conference Call or joining the Committee, see here.

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Posted by Cynthia Marcotte Stamer

Health Plans, Sponsoring Employers & Others Urged To Act Immediately In Response To Premera, Anthem Blue Cross Breaches

March 17, 2015

Today’s report by Premera Blue Cross of a massive data breach affecting as many as 11 million customers’ personal health and financial information on the heels of the large-scale data breach announcement by fellow Blue Cross Association, Anthem, is another reminder that employers and other health plan sponsors, fiduciaries, insurers specifically, and U.S. businesses generally should immediately assess and tighten up their privacy, data security and data breach compliance and risk management to fulfill applicable legal mandates and to strengthen defenses against resulting liabilities and member backlash likely to arise from these or future breaches.

Notice of the Premera and Anthem breaches are likely to trigger obligations for health plans and their sponsoring employers or unions, administrators, insurers, and other vendors and service providers to take immediate steps to conduct documented investigations, take corrective action and provide breach notifications the  Privacy, Security and Breach Notification rules of the Health Insurance Portability & Accountability Act require health plans and their business associates to provide in response to notice of a breach. Depending on the scope and nature of data affected and their involvement with the affected plans, employer or other plan sponsors, fiduciaries, administrators and service providers also may be subject additional responsibilities under applicable contracts and policies, the fiduciary responsibility requirements of the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code, and a host of other laws.  Insurance industry or other vendors providing services to these plans also may face specific responsibilities under applicable insurance, health care, federal or state identity theft, privacy or data security, or other federal or state laws.  See, e.g., Restated HIPAA Regulations Require Health Plans To Tighten Privacy Policies And Practices; Cybercrime and Identity Theft: Health Information Security Beyond; HIPAA Compliance & Breach Data Shares Helpful Lessons For Health Plans, Providers and Business Associates.

The need for prompt assessment and action is not necessarily limited to health plans and organizations sponsoring, administering or doing business with the plans involved in the Premera or Anthem breaches.  The occurrence of these breaches arguably raises the questions about the adequacy of the safeguards, practices and policies of other health plans and insurers, their sponsors and fiduciaries, insurers, administrators and other vendors.  places other health plans.  Health plans, their sponsors, fiduciaries, administrators, insurers and other vendors generally will want to make prudent documented inquiries about the adequacy of their health plan’s data security and privacy safeguards in anticipation of potential future breaches, audits or other scrutiny.

Beyond the specific health plan related concerns, most businesses also will want to consider the adequacy and defensibility of the data collection, use, disclosure, security and other practices affecting sensitive data within or on behalf of their organization.  The report of these and other health plan breaches, as well recent reports of identity theft and other fraud impacting federal tax returns and other large data breach reports involving retailers and other prominent businesses are spurring recognition of the large risks and need for greater scrutiny and accountability to business collection, use, and protection of sensitive personal and other data.

Of course, as in the case of health plans, the risk is exploding largely in response to the continued evolution of electronic payment and other business operating systems coupled with the emergence of data harvesting and other capabilities.  These new technologies and practices are fueling a host of new mandates, opportunities and risks for virtually every U.S. business.  Cyber criminals seem to always be one step ahead of business and government in leveraging these emerging opportunities for their criminal purposes.

With everyone from the Internal Revenue Service and other federal and state government agencies to private business partners pushing to leverage the efficiencies and other opportunity of electronic transactions and data, businesses in the US and around the world increasing are encouraged if not required to conduct more and more transactions containing sensitive business and individual tax information, personal financial information, personal health information, trade secrets and other confidential business and personal information electronically.  Meanwhile big data and other business and marketing gurus also encourage business to leverage their own opportunities to use data collected for these business mandates and expanding technology also to collect, use and repurpose customer,  prospect or other business information collected in the course of business to benefit their business’ marketing, transactional and other opportunities.

As these practices take hold and expand, data breaches and other cyber crime events, the legal requirements and risks of collection and use of data also are growing.  Privacy, identity theft and other cyber crime and other concerns have led federal and state lawmakers to enact an ever-growing list of notice, consent, disclosure, security and other laws and regulations including but not limited to the Fair & Accurate Credit Transaction Act (FACTA),the Gramm-Leach-Bliley Act, the HIPAA Privacy & Security Rules, state identity theft, data security and data breach and other electronic privacy and security laws and an ever-growing plethora of others.

As the cyber crime epidemic continues to grow and notorious breeches and schemes involving the Internal Revenue Service, Veterans Administration, retail giants like Target, Home Depot, and others, insurance giants like Anthem and Premera and others, government and private enforcement is rising and the judgments, penalties and other costs soaring even as federal and state regulators are looking at the need for expanded rules and penalties.   See Cybercrime Enforcement Statistics; DOJ Enforcement Priorities & Statistics. In addition, widening data privacy and security concerns from these massive data breach reports also are prompting  Congress and State regulatorsto consider the need for added reforms, see, McCaul to Hold Hearing on President’s Cybersecurity.  In deed, even before news of the Premera breach broke, he Federal Trade Commission today announced plans to host a workshop on Nov. 16, 2015, to look at the privacy issues around the tracking of consumers’ activities across their different devices for advertising and marketing purposes.

While these and other legal and enforcement developments promise new liabilities and expenses, the business losses and customer and business partner implications experienced by Target, Anthem and other businesses already affected illustrate the severe business consequences that inevitably result if a business appears to have failed to take customer privacy or other data security concerns seriously.

The now notorious Target hacking data breach event is illustrative. Target reported in late 2013 that credit and debit card thieves stole the name, address, email address and phone number from the credit and debit card records of around 70 million Target shoppers between November 27 and December 15, 2013. After announcing the breach, Target reported a 46% drop in profits in the fourth quarter of 2013, compared with the year before despite having announced plans to invest $100 million upgrading their payment terminals to support Chip-and-PIN enabled cards and millions of dollars more in rectification efforts. See The Target Breach, By the Numbers. Subsequently, Target’s losses have continued to mount even as it now faces lawsuits and other enforcement actions as a result of the breach. See Banks’ Lawsuits Against Target for Losses Related to Hacking Can Continue.  Meanwhile, the enforcement and other fallout continues to evolve.

While businesses generally need to tighten their defenses and compliance, health plans, their sponsors, fiduciaries, administrators and vendors have specific obligations that require immediate, well-documented action when an actual or potential breach happens.  The Privacy, Security and Breach Notification requirements of HIPAA require that health plans adopt specific policies and maintain and administer specific safeguards to prevent and respond to breaches of protected health information.  In the event of a breach, these rules require that the health plan, usually acting through its fiduciaries, and affected service providers that qualify as business associates both investigate and redress the breach, as well as provide specific notification as soon as possible and usually no later than 30 days after the health plan knows or has reason to know of the breach.  Significant civil and even criminal penalties can apply if a health plan, health insurer or its business associate fails to fulfill these obligations.

Beyond the specific requirements of HIPAA, employers and other plan sponsors and others involved in the maintenance and administration of the health plan or the selection and oversight of its vendors often may have other less-realized responsibilities.  As health plan data often includes payroll and other tax data, employers, the health plans and other parties involved also may have specific responsibilities under the Internal Revenue Code or other laws.   To the extent that the plan sponsor or another party is named as the plan administrator or otherwise exercises discretion and control over the selection of the insurer or other plan vendor or other plan operations, the fiduciary obligations of ERISA also may require a prudent investigation and other action to meet fiduciary obligations of ERISA.  Brokers, insurers, third party administrators, preferred provider organizations or other managed care providers and others doing business with the health plan also may have specific responsibilities under state insurance, health care, data breach and identity theft or other laws.  Under the provisions of most of these laws, leaving it to the insurer or other vendor involved in the breach generally will not suffice to fulfill applicable legal responsibilities, much less allay the fears of plan members, employees, health care providers and others involved with the health plan.

In the face of these developments, health plans and their sponsors, fiduciaries and others working with them must take immediate action in response to the breaches reported.  Along with these specific health plan related responses,  businesses also should the adequacy and defensibility of their current overall data collection, use and security practices while remaining ever vigilant for new requirements, as well as weaknesses in their own practices.  Health plans specifically and businesses generally need to build their defenses in anticipation of these events both to withstand government and private litigation and enforcement, and to survive the harsh judgment of public opinion.

 For Help With Risk Management, Compliance & Other Management Concerns

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

Scribe for the ABA JCEB Annual Agency Meeting with the Office of Civil Rights, a faculty and steering committee for the Southern California ISSA-HIMSS Health Care Privacy Program, Board Certified in Labor & Employment Law, a Fellow in the American College of Employee Benefits Counsel  recognized as a “Top 100” lawyer in labor and employment, employee benefits and health care law, Ms. Stamer is nationally recognized for her work, publications, public speaking and education and other leadership on privacy and data security and other risk management and compliance.

A management attorney who works with businesses and government to manage and redress people, process and risk, Ms. Stamer has worked extensively on data and other privacy risk management and compliance,  Throughout her career, she has conducted investigations and advised, and assisted health care, insurance, retail and a broad range of other public and private organizations with privacy and data security audit and risk management, contracting, investigation, defense and remediation throughout her more than 25 year career.

Past Chair and of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits,  past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, current Co-Chair of the RPTE Welfare Benefit Committee and Vice Chair of the ABA TIPS Employee Benefits Committee, Ms. Stamer works, publishes and speaks extensively on cyber crime and other privacy, 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  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 ABA, Insurance Thought Leadership, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

As part of her extensive involvements in privacy and data security concerns, Ms. Stamer will be among the panelists discussing “Fiduciary Obligations In the Context of a Data Breach” conference call to be hosted on April 2, 2015 by Fiduciary Responsibility Committee of the American Bar Association (ABA) Real Property Probate and Estate Section Employee Benefits & Other Compensation Group.  During the program, Ms. Stamer and other panelists will discuss the quagmire of fiduciary legal and operational challenges that data breach announcements by health plan vendors and insurers present for employer and union-sponsored health plan fiduciaries and health plans.  She also will serves as the scribe for the upcoming ABA Joint Committee On Employee Benefits Annual Agency Meeting with the Federal agency that enforces HIPAA, the Office of Civil Rights, and 2014 Conference Chair and  steering committee and faculty member of the Southern California ISSA/HIMSS Healthcare Privacy & Security Summit scheduled for June 4, 2015 in Los Angeles.

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 information about participation in the April 2 Conference Call or joining the Committee, see here.

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Read Transcript of King v. Burwell Supreme Court Oral Argument

March 4, 2015

Americans trying to predict how the Supreme Court will rule on King v. Burwell’s challenge to the Obama Administration’s authority to allow qualifying residents of states that do not maintain their own state health insurance exchange under the Patient Protection & Affordable Care Act (ACA) to  receive ACA subsidies to help pay the cost of purchasing health care coverage offered through the federal Healthcare.gov health insurance exchange may want to read the Transcript of the March 4, 2015 Supreme Court oral argument. In addition to providing potential insights into how the various Justices are likely to rule, Americans reading the transcript also will enjoy an educational and often entertaining glimpse into the most public portion of the process through which the Justices of the Supreme Court decide significant legal questions.  The appellants challenge the Obama Administration’s decision to authorize payment of subsidies to enrollees in the federal exchanges.  They contend that the express language of ACA only authorizes the payment…

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Read Transcript of King v. Burwell Supreme Court Oral Argument

March 4, 2015

Americans trying to predict how the Supreme Court will rule on King v. Burwell’s challenge to the Obama Administration’s authority to allow qualifying residents of states that do not maintain their own state health insurance exchange under the Patient Protection & Affordable Care Act (ACA) to  receive ACA subsidies to help pay the cost of purchasing health care coverage offered through the federal Healthcare.gov health insurance exchange may want to read the Transcript of the March 4, 2015 Supreme Court oral argument. In addition to providing potential insights into how the various Justices are likely to rule, Americans reading the transcript also will enjoy an educational and often entertaining glimpse into the most public portion of the process through which the Justices of the Supreme Court decide significant legal questions.  The appellants challenge the Obama Administration’s decision to authorize payment of subsidies to enrollees in the federal exchanges.  They contend that the express language of ACA only authorizes the payment of subsidies with respect to health care coverage obtained from a state exchange.

While the written briefs filed with the Supreme Court and Appellate Court provide a much clearer discussion of the parties’ respective arguments for individuals interested in understanding the various legal arguments before the Supreme Court, the questioning by the Supreme Court Justices during the Oral Argument provides strong hints of the potential leanings of the various Justices.

Beyond a better understanding of the various legal arguments before the Court, the transcript also provides readers unversed in the proceedings of the Supreme Court with an entertaining look at the oral argument process through which the Justices interrupt and disrupt the planned arguments of the attorneys as they fight to persuade the Justices to adopt their client’s interpretation of the law.  With an exchange of witty dialogue of an Academy award-winning movie, the parties break the tension of their debate with a series of teasing exchange that will bring a smile to the discriminating reader and highlight the humanism of the players.

Enjoy!

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

Do you have ideas or experiences to share about medical debit, ACA or other health care challenges?  Have ideas for helping improve ACA and other health care policies impacting the US health care system, helping Americans cope with these and other health care challenges or other health care matters? Know other helpful resources or experiences that you are willing to share?  Are you concerned about health care coverage or other health care and disability issues or policy concerns?  Join the discussion and share your input by joining Project COPE: Coalition for Patient Empowerment here.

As American leaders continue to struggle to deal with these and other mounting problems impacting the U.S. health care system, the input of individual Americans and businesses and community leaders is more critical than ever.  Get involved in helping to shape improvements and solutions to the U.S. health care system and the Americans it cares for by sharing your ideas and input through the Coalition For Responsible Health Care Policy  and exchanging information and ideas for helping American families deal with their family member’s illnesses, disabilities and other healthcare challenges through Project COPE: Coalition for Patient Empowerment here.

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

The Coalition and its Project COPE arise and operate on the belief that health care reform and policy must be patient focused, patient centric and patient empowering.  The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans.  The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up:  Step up and help bridge the gap when you or your organization can. Speak up to help communicate and facilitate when you can.  Building health care neighborhoods filled with good neighbors throughout the community is the key.

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

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.

You also may be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here.   

You also can get details about how to arrange for your employees or other communities to participate in training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

 

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State Exchange Problems Present ACA Concerns That Exist Beyond King v. Burwell

March 3, 2015

While most Americans are familiar with the well-publicized issues and higher than projected premium costs of coverage offered to Americans enrolling in health care coverage through the federal healthcare marketplace Healthcare.gov created under the health care reforms of the Patient Protection & Affordable Care Act (ACA), many Americans are just beginning to recognize the growing problems and concerns emerging with state exchanges in those states that elected to enact their own exchange.  As the Supreme Court prepares to hear arguments in the challenge to the payment of ACA subsidies to individuals in states that elected not to adopt a state-run health care exchange to pay for coverage purchased through the federal healthcare.gov marketplace in King v. Burwell on Wednesday, March 4, 2015, the growing evidence of rapidly emerging funding and other challenges affecting state-run exchanges raise concerns about the solvency and reliability of coverage promised and purchased through those state-run exchanges.

During the Congressional debates leading up to the enactment of ACA, for instance, ACA advocates touted the Massachusetts health care mandates and reform law of Massachusetts as part of the model for ACA and evidence of the potential benefits offered by enactment of ACA.  Now Massachusetts officials are blaming ACA for serious underfunding and other problems in their state’s health care connector.

Massachusetts Governor Charlie Baker recently cited the Health Connector and its challenges in enrolling Massachusetts residents in health insurance plans as part of the Affordable Care Act that forced the state to temporarily transition hundreds of thousands of state residents into the commonwealth’s Medicaid program as a primary reason for the state’s projected $1.5 billion budget deficit.  He now has asked for the resignations of four Massachusetts Health Connector board members:  MIT professor Jonathan Gruber,  Covered California actuarial consultant John Bertko; Massachusetts Nonprofit Network CEO Rick Jakious and Spring Insurance Group CEO George Conser.

The Massachusetts experience is not unique.  Other states also are experiencing significant funding and other problems dealing with the ACA mandates and implementation.  See, e.g.,  Funding Woes Imperil Future of State Run Exchanges;  State Insurance Exchanges Face Challenges In Offering Standardized Choices Alongside Innovative Value-Based Insurance.

This mounting evidence of serious cost, financing and other concerns in state-run exchanges creates new reason for concern about the future of ACA’s health care reforms even for those citizens of states whose eligibility for subsidies is not challenged by the King v. Burwell Supreme Court challenge.  These and other budget overruns and operational challenges raise serious questions about the ability of the federal government or the states to fund the promises currently made by ACA in its present form.  Congress and state governments almost certainly will be forced to deal with these broader challenges regardless of the outcome of King v. Burwell.   As American leaders continue to struggle to deal with these and other mounting problems impacting the U.S. health care system, the input of individual Americans and businesses and community leaders is more critical than ever.  Get involved in helping to shape improvements and solutions to the U.S. health care system and the Americans it cares for by sharing your ideas and input through the Coalition For Responsible Health Care Policy  and exchanging information and ideas for helping American families deal with their family member’s illnesses, disabilities and other healthcare challenges through Project COPE: Coalition for Patient Empowerment here.

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

Do you have ideas or experiences to share about medical debit, ACA or other health care challenges?  Have ideas for helping improve ACA and other health care policies impacting the US health care system, helping Americans cope with these and other health care challenges or other health care matters? Know other helpful resources or experiences that you are willing to share?  Are you concerned about health care coverage or other health care and disability issues or policy concerns?  Join the discussion and share your input by joining Project COPE: Coalition for Patient Empowerment here.

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

The Coalition and its Project COPE arise and operate on the belief that health care reform and policy must be patient focused, patient centric and patient empowering.  The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans.  The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up:  Step up and help bridge the gap when you or your organization can. Speak up to help communicate and facilitate when you can.  Building health care neighborhoods filled with good neighbors throughout the community is the key.

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

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.

You also may be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here such as:

 You also can find out about how you can arrange for training for you, your employees or other communities to participate in training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

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Posted by Cynthia Marcotte Stamer

EEOC Charges Employer Violated ADA By Terminating Employment At FMLA Leave End

March 2, 2015

Employers considering terminating the employment of employees not ready to resume their usual duties when their eligibility for medical leave ends under the Family & Medical Leave Act (FMLA) or other leave policies should first consider whether the employee qualifies for accommodation under the Americans With Disabilities Act.  That’s the message transmitted by a new Employment Opportunity Commission (EEOC) Americans With Disabilities Act (ADA) lawsuit against ValleyLife of Phoenix, Arizona.

In EEOC v. ValleyLife, the EEOC charges that ValleyLife engaged in illegal disability discrimination in violation of the ADA when it allegedly fired employees with disabilities instead of providing them with reasonable accommodations when their eligibility for family leave ended under the FMLA and allegedly failed to keep employees’ medical records confidential.  See EEOC v. ValleyLife, Civil Action No. 2:15-cv-00340-GMS (N.Az).

According to the lawsuit, ValleyLife fired employees with disabilities rather than provide them with reasonable accommodations due to its inflexible leave policy.  The policy compelled the termination of employees who had exhausted their paid time off and/or any unpaid leave to which they were eligible under the FMLA.   In its complaint, for instance, the EEOC alleges that ValleyLife fired supervisor, Glenn Stephens, due to his need for further surgery when his FMLA leave was exhausted.  EEOC claims this termination violated the ADA because ValleyLife did not engage in any interactive process to determine whether any accommodations (including additional leave) were possible.  Stephens had worked for ValleyLife for over ten years at the time of his termination.  The EEOC contends that ValleyLife’s failure to offer extended leave or other accommodation to Stephens when his leave eligibility ended violated the ADA, which protects workers from discrimination based upon disability and requires employers to provide reasonable accommodations to the known physical or mental impairments of disabled employees unless doing so would cause an undue hardship.

The suit also alleges that ValleyLife commingled medical records in employee personnel files and failed to maintain these medical records confidential in violation of the medical record confidentiality requirements of the ADA, which requires employees’ to keep medical documents confidential and separate from other personnel records.

The lawsuit seeks lost wages and compensa­tory and punitive damages for the alleged victims, as well as appropriate injunctive relief to prevent discriminatory practices in the future.

Prepare Employment Discrimination Defenses

The EEOC suit against ValleyLife sends a message to employers of the need to use care to monitor and manage ADA and other disability discrimination risks at the end of a FMLA or other medical leave.  Employers assume at their own peril that their responsibility to an employee ends when an employee is unable to or fails to return to work following a FMLA or other medical leave.  Instead, the employer should evaluate whether the affected employee qualifies as disabled under the ADA and if so, whether the employer has any responsibility to offer the employee an extended leave or other accommodations before terminating the employee.

Employers also should consider reviewing and updating their current FMLA and other leave policies and communications to incorporate appropriate accommodation offer and administration procedures and notices, as well as other processes to ensure that these practices are operationalized in a manner to create and keep appropriate documentation to defend staffing decisions against potential claims of illegal discrimination under the ADA, Civil Rights, or other laws that could trigger ADA or other discrimination charges.  Employers should keep in mind that an evidentiary doctrine known as the “after acquired evidence rule” makes it important to properly document analysis and decision-making before an employment action is taken to help ensure that critical evidence of employer intention necessary to defend discrimination claims will not be excluded or compromised in the event of litigation.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

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Posted by Cynthia Marcotte Stamer

New Opportunity To Share Your Input With HHS About How To Improve Healthcare

March 2, 2015

PROJECT COPE: COALITION ON PATIENT EMPOWERMENT

Health care providers, health plans and insurers, employers, providers, patients, states, consumer groups, individual Americans and others concerned about health care in the United States should sign up and participate in the new Health Care Payment Learning and Action Network (“Network”) the Department of Health and Human Services (HHS) is creating to help shape the transformation of the nation’s health care delivery system to promote better care, smarter spending, and healthier people through the expansion of new health care payment models and other reforms.  HHS is inviting private payers, employers, providers, patients, states, consumer groups, consumers, and other partners within the health care community to register hereto participate in the Network activities including  kickoff event scheduled for Wednesday, March 25, 2015.

HHS hopes cooperation through the Network will help the entire U.S. health care system match and exceed the following HHS goals for Medicare:

  • Tying 30 percent of payments to quality or value through…

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3/6 ABA Study Group Conference Call Explores ACA Employer Compliance Challenges Hot Topics

February 23, 2015

Solutions Law Press, Inc. publisher/author Cynthia Marcotte Stamer and Society of Professional Benefits Administrators Director of Public Relations & Legal Affairs Elizabeth Ysla Leight will lead a conference call discussion of Hot Topics In Employer Requirements of the Patient Protection & Affordable Care Act (ACA)   for the Welfare Benefits Plans Committee of the American Bar Association (ABA) Real Property, Trusts & Estates Section Employee Benefit Plans and Other Compensation Arrangements Group (Group) on Friday, March 6, 2015 at 1 PM (Eastern), Noon (Central), 11 AM (Mountain), and 10 AM (Pacific).   Conducted as part of a regular series of “Study Group” style conference calls hosted by the Group, participation in the conference call is available at no charge to ABA RPTE members as part of their ABA RPTE membership.

As health care reform continues to unfold, join the Welfare Benefits Committee to examine the requirements imposed on employers by ACA. With a myriad of ever-evolving technical changes in the requirements, their interpretation and deadlines, there is no shortage of compliance challenges or  and ideas for amendments for welfare benefit plan documents and practices. This will be a round-robin hot topics session that will cover as many topics as time will allow.

Expected topics for discussion include:

  • What is on your short list of “Hot Topics”?
  •  ACA litigation, including King v Burwell
  • Self-reporting ACA violations
  • Other topics, including cafeteria plan elections, etc.
  • “Employer “play-or-pay” mandate
  • Employer reporting on the B and C Forms
  • Employee/Independent Contractor Classification Issues
  • More

Welfare Benefits Committee Co-Chairs Ms. Stamer and Ms. Leight, will lead the conference call discussion.  Both are nationally known for their extensive experience and involvement with ACA and other health plan matters.

As the Director of Public and Legal Affairs for the SPBA, Ms. Leight plays a lead role in helping the SPBA’s member third party administration service providers monitor, shape and respond to the ever-shifting federal and state regulatory environment and develop strategies and knowledge to help employer and other health plan sponsors design and administer legally compliant health and other welfare benefit plan strategies.  In addition to her leadership in the Committee, Ms. Leight also serves on the US Department of Labor ERISA Advisory Council on Employee Welfare and Pension Benefit Plans, which provides advice on policies and regulations affecting employee benefit plans governed by ERISA.

Past Chair of the Group, Ms. Stamer  is nationally and internationally known for her innovative leadership and work helping employers, insurers, TPAs, governments, and communities on health benefit and reform and other labor and employment, employee benefits and workforce related challenges.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   She not only is extensively involved in health, pension and workforce policy and regulation reform, she also helps employers, insurers, administrators and other benefit and human resources services providers and others design, implement, administer and defend innovative, pragmatic health and other employee benefit programs, products and practices.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

About Solutions Law Press

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

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

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

For information about joining the conference call or other details about joining the ABA and participating in the RPTE Welfare Benefit Committee or other activities, see the Welfare Committee Webpage.

 

 

Comments Off on 3/6 ABA Study Group Conference Call Explores ACA Employer Compliance Challenges Hot Topics | 105(h), ACA, Cafeteria Plans, Employers, ERISA, Fair Labor Standards Act, FMLA, Health Plans, HIPAA, Human Resources, Patient Protection and Affordable Care Act, Premium Subsidies, Tax, Wellness Programs | Tagged: , , , , , , , , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

Businesses Should Verify Proper Tracking, Withholding & Reporting On Tips & Gratuities

February 5, 2015

Employers of  restaurant, hotel and other hospitality, cosmetology, and other tipped employees should take the publication by the Internal Revenue Service (IRS) of IRS Tax Tip 2015-13, What You Should Know if You Get Tipped at Work,  reminding employees about their responsibility to pay taxes on tips and other gratuities as a reminder of the need to implement proper procedures to accurately track the amount of, report as income, and withhold employee’s income and employment tax and report and pay the employer’s required employment taxes on taxable tips and gratuities as required by the Internal Revenue Code (Code) as well as a resource to aid the employer in educating workers about these requirements.

While the IRS’ publication of Tax Tip 2015-13 is targeted at workers receiving tipped compensation, its publication also signals employers of tipped workers of the IRS’ expectation that both employers and employees comply with the Code’s rules about taxation, reporting and withholding on tips and gratuities.

Under the Code, tips and other gratuities generally qualify as taxable wages under the Internal Revenue Code.  Consequently, employers of employees receiving tips, gratuities or other similar compensation generally are responsible for accurately tracking and reporting taxable tips and gratuities collected by their employees, including those amounts when calculating and collecting required income and employment taxes from employee’s pay, and calculating, reporting and paying employment taxes due with respect to those wages by the employer.  Employers caught failing to fulfill these responsibilities risk incurring penalties for failing to report and pay taxes on the tipped wages due from the employer as well as potentially becoming liable as a backup guarantor to pay income and employment taxes owed by the employee on unreported tipped wages that otherwise would have been due from the recipient employee.  To help mitigate these risks, employers of tipped employees should adopt and communicate clearly written policies and procedures requiring employees to report accurately all tips and gratuities, should monitor and enforce these policies and procedures, and should accurately report, pay employment taxes, and report and withhold income and the employee’s required share of employment taxes as required to comply with the Code.  See Publication 531, Tax Topic 761 – Tips – Withholding and Reporting; Form 4137, Social Security and Medicare Tax on Unreported Tip Income; Tip Recordkeeping and Reporting.To aid in this process, employers of tipped employees may want to review and require employee’s to keep a daily log of tips to report tips and gratuities to the employer based on the information provided by the IRS in Publication 1244, Employee’s Daily Record of Tips and Report to Employer, to record your tips. 

Businesses employing tipped employees also should use care to abstain from posting signs or other practices such as asking or otherwise encouraging customers to pay tips or other amounts in cash, which are or could be construed to seek to hide or obscure wages or other taxable receipts to avoid reporting or payment of taxes due under the Code.  Businesses also should use care to properly document, report and include tips and gratuities as required to comply with state unemployment compensation, disability, worker’s compensation, and other laws.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

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Posted by Cynthia Marcotte Stamer

Tell Congress to protect wellness programs against EEOC attacks

January 28, 2015

The EEOC has declared war on many employer sponsored wellness programs. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing about how to improve employer wellness programs on Thursday, January 29. Employers and others should urge the Committee and other Congressional leaders to overrule the EEOC’s attacks on wellness programs as illegal disability discrimination under the Americans with Disabilities Act.

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Posted by Cynthia Marcotte Stamer

Tell Congress to protect wellness programs against EEOC attacks

January 28, 2015

The EEOC has declared war on many employer sponsored wellness programs. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing about how to improve employer wellness programs on Thursday, January 29. Employers and others should urge the Committee and other Congressional leaders to overrule the EEOC’s attacks on wellness programs as illegal disability discrimination under the Americans with Disabilities Act.

1 Comment | ADA, Affordable Care Act, Disability, Discrimination, EEOC, EEOC, Employee Benefits, Employers, ERISA, GINA, Health Care Reform, Health Plans, Human Resources, Insurance, Internal Controls, MEWA, Patient Empowerment, Patient Protection and Affordable Care Act, Privacy, Rehabilitation Act, Wellness, Wellness Programs | Permalink
Posted by Cynthia Marcotte Stamer

Stay Connected Update Your Contact Information

January 21, 2015

                           Stay Connected Update Your Contact Information

                           http://www.CynthiaStamer.com

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Stamer Recognized As A “Top” Labor & Employment Lawyer

January 7, 2015

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related representations.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 25 year career, Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also 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 College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  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’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, 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. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, 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.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

2 Comments | Employee Benefits, Employers, ERISA, Form 5500, Health Plans, Human Resources, Insurance, MEWA, Reporting & Disclosure, Uncategorized | Tagged: , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

IRS Gives Guidance On When Defined Benefit Funding Method Changes Due Actuary Change Automatically Approved

January 6, 2015

The Internal Revenue Service (IRS) today (January 6, 2015) published guidance on when a change in a single-employer defined benefit plan’s funding method due to a change in the plan’s enrolled actuary will qualify for automatic approval.  For additional details, see Announcement 2015-03, which is scheduled for official publication in Internal Revenue Bulletin 2015-3 on January 20, 2015.

For Advice, Training & Other Resources

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

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Posted by Cynthia Marcotte Stamer

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

December 11, 2014

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

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

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

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

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

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

For Advice, Training & Other Resources

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

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Posted by Cynthia Marcotte Stamer

2015 Tax Standard Mileage Rates Announced

December 10, 2014

Employers should review and update mileage reimbursement policies and rates in light of the 2015 standard mileage rates that the Internal Revenue Service (IRS) just announced will apply for federal tax deduction purposes in 2015.

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

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

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

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

For Advice, Training & Other Resources

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

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Posted by Cynthia Marcotte Stamer

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

December 3, 2014

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

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

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

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

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

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

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

For Advice, Training & Other Resources

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

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update distributions here including:

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

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

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

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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

Comments Off on 12/5 Deadline For Insurers, Certain Self-Insured Health Plans To Submit 2014 Transitional Reinsurance Program Contribution Data | Employee Benefits, Employers, ERISA, Health Plans, Human Resources, Insurance, MEWA, Reporting & Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

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

December 3, 2014

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

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

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

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

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

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

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

About Author Cynthia Marcotte Stamer

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

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

About Solutions Law Press

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

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

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

Comments Off on OIG Report Pressures EBSA To Finalize ERISA Fiduciary Investment Advice Rule & Repeal or Restrict Small Scope Audit Rule | 105(h), ACA, Affordable Care Act, Cafeteria Plans, CHIP, Claims Administration, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, FMLA, H.R. 4872, Health Care Reform, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Leave, Patient Empowerment, Patient Protection and Affordable Care Act, Preemption, Reporting & Disclosure, USERRA, VEVRRA, Wellness Programs | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

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

December 3, 2014

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

 

 

About Author Cynthia Marcotte Stamer

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

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

About Solutions Law Press

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

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©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

Comments Off on TEGE Counsel To Assume Responsibility For Employee Plans, Exempt Orgs & IRA Technical Guidance in 2015 | 105(h), ACA, Affordable Care Act, Cafeteria Plans, CHIP, Claims Administration, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, FMLA, H.R. 4872, Health Care Reform, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Leave, Patient Empowerment, Patient Protection and Affordable Care Act, Preemption, Reporting & Disclosure, USERRA, VEVRRA, Wellness Programs | Tagged: , , , , , , | Permalink
Posted by Cynthia Marcotte Stamer

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