Stamer To Discuss “Health Care Reform’s Implications For Employers, Health Plans & Employee Benefits Practitioners” At May 5 Dallas Bar Association Meeting

March 22, 2010

Cynthia Marcotte Stamer will discuss “Health Care Reform:  Implications for Employers, Health Plans and Employee Benefits Practitioners” at the May 5, 2010 meeting of Dallas Bar Association Employee Benefits/Executive Compensation Section to be held from 12:00 noon – 1:00 p.m. in the Haynes & Boone Ballroom of Dallas Bar Association Belo Mansion located at 2101 Ross Avenue in Dallas, Texas.

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

Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the Dallas Bar Association Employee Benefits & Executive Compensation Section, Ms. Stamer is nationally recognized for more than 22 years of work with employer and other health plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on health benefit program and product design, documentation, administration, compliance, risk management, and public policy matters.  The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns for the ABA, the Bureau of National Affairs and many other organizations.  For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with evaluating or responding to this new legislation or other employee benefits, employment, compensation or other management concerns, wish to inquire about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

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

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here and learn more about  other Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press distributions here. For important information concerning this communication click here.    

©2010 Cynthia Marcotte Stamer. All rights reserved.


Stamer To Present “2010 Health Plan Checkup” At Annual DFW ISCEBS Employee Benefits Fundamentals Workshop

February 22, 2010

 

Cynthia Marcotte Stamer will discuss the latest changes and requirements affecting employer sponsored group health plans, their sponsors, fiduciaries, insurers and vendors during her presentation titled “2010 Health Plan Checkup” at the Dallas/Fort Worth ISCEBS Annual Fundamentals Workshop currently scheduled for May 13, 2010 in Dallas. 

With Congress and federal regulators turning up the heat on health care, keeping up to date with the latest developments is both critical and increasingly challenging for employers, their employee benefits and human resources staff, and the fiduciaries, insurers, administrators and others dealing with health plan design and administration. Coming as U.S. employers continue to struggle to provide health benefits in the face of skyrocketing health benefit costs, tighter health plan medical privacy, nondiscrimination, mental health and other benefit mandates, and a host of other tighter new federal regulations impacting employment-based health plans and their sponsoring businesses, fiduciaries and administrators increasingly are forcing U.S. business leaders to make appropriate health plan cost and compliance management a key management priority. Ms. Stamer will discuss key developments, highlight new developments on the horizon, and provide tips to participants for monitoring and responding to these and other developments.  To register or for additional information, contact the Dallas/Fort Worth ISCEBS here.

Nationally recognized for her more than 22 years of work on managed care and other health and other employee benefits, human resources, insurance, and health care matters, Ms. Stamer assists employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend managed care and other medical benefit programs and practices. She also regularly advises and assists these and other clients to monitor and respond to evolving legislation, regulations, enforcement activities by federal and state regulators, evolving product and market changes, and private litigation and other disputes.  Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group and the Current Chair of the ABA RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and Board Certified in Labor & Employment Law, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters.  Some other recent updates on these topics recently published by Ms. Stamer include :

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with these or other compliance concerns, wish to inquire about federal or state regulatory compliance audits, risk management or training, assistance investigating or responding to a known or suspected compliance or risk management concern, or need legal representation on other matters please contact the author of this update, Cynthia Marcotte Stamer, CTT Labor & Employment Practice Chair at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

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

©2010 Cynthia Marcotte Stamer. All rights reserved.


New Mental Health Parity Regulations Require Health Plan Review & Updates

January 31, 2010

By Cynthia Marcotte Stamer

Employer and union-sponsored group health plans and insurers generally must update their group health plans to comply with expanded federal “mental health parity” regulations (MHP Regulations) published on Friday, January 29, 2010 will require changes to most covered group health plans to comply with the new rules and to make adjustments to broader benefit provisions as appropriate to mitigate potential cost implications no later than the first plan year beginning after June 30, 2010.

Jointly published by the Treasury, Health & Human Services and Labor Departments and available for review here , the MHP Regulations interpret and implement federal rules prohibiting group health plans and their insurers from imposing certain special limits on benefits provided for mental health and substance abuse treatments not applicable to general medical or surgical benefits. 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008, Public Law 110-343 (MHPAEA) expands the scope of prohibited restrictions on mental health benefits beginning after June 30, 2010.   Under the MHPAEA amendments, any covered group health plan that includes mental health and substance use disorder benefits along with standard medical and surgical benefits generally cannot apply more limited benefit limits, out-of-pocket cost limitations, prior authorization and utilization review or other benefit restrictions than apply to medical or surgical benefits.  In addition, group health plan utilization review, medical necessity and appropriateness and other rules and procedures used to decide mental health and substance abuse benefits generally must be based on the same level of scientific evidence used by the group health plan or insurer to determine medical and surgical benefits.

Before the MHPAEA amendments took effect, the Mental Health Parity Act of 1996 (MHPA) generally only prohibited group health plans from applying more restrictive aggregate lifetime and annual dollar limits on mental health benefits than applied to general medical or surgical benefits and did not extend these restrictions to substance use disorder benefits.

The MHP Regulations generally apply to group health plans of employers with 50 or more workers that offer mental health or substance use disorder benefits for plan years beginning on or after July 1, 2010.  Until then, covered group health plans and their insurers generally must continue to comply with the more limited mental health parity requirements imposed under the MHPA, as well as other federal group health plan mandates.

Federal law increasingly is curtailing the significant latitude that employers and unions once enjoyed in deciding the benefits, eligibility and other terms and conditions of their group health plans, including many significant changes that took effect or will take effect during 2009 and 2010.   You can learn more about some of these developments by reviewing the 2009 Health Plan Update presentation posted here.  In light of the liabilities and costs arising under these and other rules, plan sponsors, administrators, fiduciaries and executives with responsibility over these plans, their establishment, funding or administration should take prompt and prudent steps to verify that their plan documents, communications, agreements and practices are updated to minimize risks and avoid unanticipated expense.

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

Other Information & Resources

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

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

©2009 Cynthia Marcotte Stamer. All rights reserved.


Health Plans & Employers Can Expect Pressure To Pay For Childhood Obesity Counseling From New American Academy of Pediatrics Report

January 25, 2010

By Cynthia Marcotte Stamer

New American Academy of Pediatrics recommendations calling for early intervention and intensive behavioral therapy to treat childhood obesity promise to increase demands for employer sponsored and other health plans to reimburse the costs of these treatments.

With health care providers and government officials increasingly emphasizing the need for prevention and intervention, employers and health insurers face greater pressure to offer health benefit coverage for weight management and other obesity prevention and treatment. Aside from determining what treatments to coverage generally, recent changes in the Americans With Disabilities Act statute and its enforcement and interpretation by the Equal Employment Opportunity Commission, the recently effective employment and health plan nondiscrimination rules of the Genetic Information and Nondiscrimination Act, health information and other privacy rules and other legal changes make the appropriate design and administration of obesity and other wellness, disease management and other programs targeting obesity or other chronic conditions legally and operationally challenging.  Employers and insurers concerned with these issues should exercise care to properly understand and appropriately manage the legal and operational complexities, risks, costs and benefits when designing health and other programs to manage health care, disability and other costs of obesity and other chronic diseases.

Read the report and about discrimination and other issues that employers and insurers may need to manage under evolving federal rules when deciding how to design and manage obesity and other wellness and disease management programs here.

If you have questions about wellness, disease management or other health and wellness benefit, disability prevention and management, or other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. 

Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group, an ABA Joint Committee on Employee Benefits Council Member, Past Chair of the ABA Managed Care & Insurance Group and RPTE Welfare Benefits Committee and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced advising and assisting government leaders, employers, health and other employee benefit plans and their fiduciaries, insurers, financial advisory services, and administrators, health care providers, and others about obesity and other disease management and wellness programs, as well as other related employee benefit and employment matters.  A widely published author on these and other health and disability benefit and management concerns, Ms. Stamer has advised and represented employers, health plans and others on these and other matters for more than 20 years. Author of the Personal Health Care Toolkit, Ms. Stamer also has lead the development of wellness and disease management initiatives for the National Kidney Foundation of North Texas and other organizations. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

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

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

©2010 Cynthia Marcotte Stamer. All rights reserved. 


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

December 8, 2009

 By Cynthia Marcotte Stamer

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

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

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

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

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

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

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

Other Employee Benefit Regulations Planned

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

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

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

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

Other Information & Resources

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

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

 ©2009 Cynthia Marcotte Stamer. All rights reserved.


DOL Shares 2010 Regulatory Plans Monday, December 7; Get A Sneak Peek on Its Plans

December 5, 2009

Get a peek at the U.S. Department of Labor’s (DOL’s) regulatory plans for 2010 on Monday, December 10, 2009.

On Monday, Dec. 7, the DOL will release its annual regulatory agenda for the upcoming year.  The same day, it also will video cast remarks by Secretary Hilda L. Solis outlining the department’s regulatory agenda beginning at 10 a.m. EST.  From 2 to 3 p.m. EST Ssecretary Solis alsowill host a live Web chat open to the public to discuss the contents of the agenda. Questions may be submitted in advance of the chat following the video presentation. Register to join the chat on Monday here.

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

Other Information & Resources

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

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

©2009 Cynthia Marcotte Stamer. All rights reserved.


Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

November 30, 2009

As the Centers for Disease Control (CDC) continues cautioning Americans to expect a resurgence of the H1N1 virus, employers should continue to take prudent steps to defend their organization and their workers against a widespread H1N1 outbreak and the attendant lost time, health and disability costs, OSHA and other liability exposures and other personal and financial consequences likely to result from an outbreak. 

Employers wishing to deter the spread of the disease in their workplace should educate workers about these recommendations and consider taking steps to encourage workers to comply with these recommendations. When planning or taking steps to protect their workplaces from the H1N1 virus pandemic or other outbreaks of communicable diseases, however, employers must use care to avoid violating the Americans With Disabilities Act or other employment laws.

Preventing, Recognizing & Mitigating Risks of H1N1

Although the number of reported cases of H1N1 virus cases has declined in many states in recent weeks, CDC officials are warning American’s that the crisis is not over yet.  CDC officials last week warned Americans to expect H1N1 infection to rise as the holiday approaches and the winter progresses. With flu activity already higher than what is seen during the peak of many regular flu seasons and the H1NA virus accounting for almost all of the flu viruses identified so for this season,  Accordingly,  the CDC continues to encourage Americans to be alert for symptoms of H1N1 or other flu and to take other precautions including to get vaccinated.

Employers should continue to encourage workers and their families to take precautions to avoid catching the virus, to be on the watch for H1N1 virus or other flu infection and to respond appropriately if they, members of their families or others in the workplace exhibit these symptoms.   To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC here.  Businesses and other concerned parties also can track governmental reports about the swine flu and other pandemic concerns at here.   

For those not already suffering from the virus and particularly for those at higher risk, the CDC continues to recommend vaccination. People recommended by the CDC to receive the vaccine as soon possible include:  health care workers; pregnant women; people ages 25 through 64 with chronic medical conditions, such as asthma, heart disease, or diabetes; anyone from 6 months through 24 years of age; and people living with or caring for infants under 6 months old.  As the vaccine becomes available, many employers are encouraging workers and their families to get vaccinated by offering vaccination clinics at or near their worksites, arranging for health plan coverage for vaccinations with reduced or no co-payments or deductibles, and/or sharing information about government sponsored or other vaccination clinics. 

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu.  Employers should encourage employees and their families to take the following steps: 

  • Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too;
  • Stay home when you are sick to help prevent others from catching your illness;
  •  Cover your mouth and nose;
  • Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick;
  • Clean your hands to protect yourself from germs;
  • Avoid touching your eyes, nose or mouth;
  • Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth; and
  • Practice other good health habits.  Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Employers also should encourage workers and their families to be alert to possible signs of H1N1 or other flu symptoms and to respond appropriately to possible infection.  According to the CDC, all types of flu including H1NA typically include many common symptoms, including:

  • Fever
  • Coughing and/or sore throat
  • Runny or stuffy nose
  • Headaches and/or body aches
  • Chills
  • Fatigue

Patients suffering from H1N1 flu usually report these same symptoms, but the symptoms often are more severe. In addition to the above symptoms, a number of H1N1 flu cases reported vomiting and diarrhea.

CDC recommends individuals diagnosed with H1N1 flu should:

  • Stay home and avoid contact with others for at least 24 hours after a fever (100°F or 37.8°C) is gone without the use of fever reducing medicine except to get medical care or for other things that must be done that no one else can do;
  • Avoid close contact with others, especially those who might easily get the flu, such as people age 65 years and older, people of any age with chronic medical conditions (such as asthma, diabetes, or heart disease), pregnant women, young children, and infants;
  • Clean hands with soap and water or an alcohol-based hand rub often, especially after using tissues or coughing/sneezing into your hands;
  • Cover coughs and sneezes;
  • Wear a facemask when sharing common spaces with other household members to help prevent spreading the virus to others. This is especially important if other household members are at high risk for complications from influenza;
  • Drink clear fluids such as water, broth, sports drinks, or electrolyte beverages made for infants to prevent becoming dehydrated;
  • Get plenty of rest;
  • Follow doctor’s orders; and
  • Watch for signs for a need for immediate medical attention. Suffers should get medical attention right away if the sufferer has difficulty breathing or chest pain,  purple or blue discoloration of the lips, is vomiting and unable to keep liquids down, or shows signs of dehydration, such as feeling dizzy when standing or being unable to urinate.

In seeking to contain the spread of the virus within their workplace, employers also should be sensitive to workplace policies or practices that may pressure employees with a contagious disease to report to work despite an illness and consider whether the employer should adjust these policies temporarily or permanently in light of the ongoing pandemic.  For instance, financial pressures and the design and enforcement of policies regarding working from home and/or qualifying for paid or unpaid time off significantly impact the decisions employees make about whether to come to work when first experiencing symptoms of illness.  Employers of workers who travel extensively – may wish to delay or restrict travel for some period. 

Employers Must Employment Discrimination & Other Legal Compliance Risks

Many employers may want to evaluate and appropriately revise existing policies with an eye to better defending their workforce against a major outbreak.  Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations – either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers.  Many businesses also will want to prepare backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs. 

Employers planning for or dealing with an H1N1 or other epidemic in their workplace should exercise care to avoid violating the nondiscrimination and medical records confidentiality provisions of the Americans with Disabilities Act (ADA) and/or the Genetic Information Nondiscrimination Act (GINA), the Family & Medical Leave Act of 1990 (FMLA), the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws, and other employment and privacy laws.

Improperly designed or administered medical inquiries, testing, vaccination mandates and other policies or practices intended to prevent the spread of disease may expose an employer to disability discrimination liability under the ADA or GINA.  For instance, the ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances permitted by the ADA. Likewise, improperly designed or communicated employer inquiries into family medical status which could be construed as inquiring about family medical history also may raise exposures under genetic information nondiscrimination and privacy mandates of GINA that took effect November 21, 2009.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Additionally, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made.  It permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.   All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.  The EEOC Pandemic Preparedness In The Workplace and The Americans With Disabilities Act Guidance makes clear that employer inquiries and other H1N GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers H1N1 and other epidemic planning and response activities should be carefully crafted to avoid violating these proscriptions.

GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” also could present a liability trap door for some employers designing pandemic or other workplace wellness, disease management or other programs.  GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual, GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.  For more information about the new GINA genetic information employment discrimination rules, see here.

As part of their pandemic planning, employers also generally should review their existing wage and hour and leave of absence practices.  Employers should ensure that their existing or planned practices for providing paid or unpaid leave are designed to comply with the FLSA and other wage and hour and federal and state leave of absence laws. Employers also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years.  If considering allowing or requiring employees to work from home, employers also need to implement appropriate safeguards to monitor and manage employee performance, to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, OSHA and other safety, privacy and other legal and operational requirements. 

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at hereFLU.gov is a one-stop resource with the latest updates on the H1N1 flu. An additional resource is CDC INFO, 1-800-CDC-INFO (1-800-232-4636), which offers services in English and Spanish, 24 hours a day, 7 days a week.  Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions.  These and other businesses may want to consult the special resources posted  here

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

Other Information & Resources

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

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

©2009 Cynthia Marcotte Stamer. All rights reserved. 


New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

November 24, 2009

Updated Employment Poster, Policies & Procedures Required Immediately

Employers, unions, employment agencies, employment training agencies and their agents face significant new employment discrimination liability risks if they violate new genetic information-based employment non-discrimination or fail to comply with genetic information confidentiality requirements that took effect under Title II of the Genetic Information Nondiscrimination Act (GINA) on Saturday, November 21, 2009.  Employers need immediately to update their employment posters, carefully audit their existing records and practices to identify existing information and practices that may create special risks under GINA and take appropriate action to comply with the GINA rules. Employers needing an updated poster can find a copy on the Equal Employment Opportunity Commission website here.

Under the newly effective employment provisions of Title II of GINA, Federal law now prohibits employers of 15 or more employees and certain other entities from using individuals’ “genetic information” when making hiring, firing, job placement, or promotion decisions, requires “genetic information” be kept separately and confidential, and prohibits retaliation. 

When assessing their risk under GINA, employers should be careful not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to this information.  Many employers will be surprised by the breadth of the depth of “genetic information.”   GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual.   GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.  Pending issuance of regulatory guidance, GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers.

Failing to properly address GINA compliance could expose employers to substantial risk.  Violation of the employment provisions of Title II subjects an employer to potentially significant civil judgments like those that generally are available for race, sex, and other federal employment discrimination claims covered by the Civil Rights Act.  Accordingly, employers and others who have not already done so should act quickly to review and update their policies and procedures to manage their new compliance and liability exposures under GINA Title II.

While the agency responsible for construing and enforcing Title II of GINA, the Equal Employment Opportunity Commission (EEOC), to date has published only limited guidance about it, the absence of this final guidance should not be read by employers as a sign their compliance may be delayed.  While not yet issued in final form, proposed regulations interpreting Title II of GINA accessible here published by the EEOC in March, 2009  and a subsequently released factsheet accessible here published by the EEOC in May, 2009 titled “Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008” provide insights about how the EEOC may be expected to view its provisions.   While many employers have delayed taking action to update their policies and procedures in hopes that final guidance would be forthcoming before Title II took effect, time has now run out.  Accordingly, employers who have not already done so should act quickly to implement all necessary changes to position themselves to defend against a potential claim that their organization may have violated GINA Title II. 

Employment-Related Genetic Information Nondiscrimination Rules In Focus

Applicable to employers, unions, employment agencies, employment training agencies and their agencies based on genetic information by employers, Title II imposes sweeping prohibitions against employment discrimination based on genetic information.  Title II generally has three components:

Employment Discrimination Prohibited.  Section 202 of GINA makes it illegal for an employer:

  • To fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee;
  • To limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee; or
  • To request, require, or purchase genetic information with respect to an employee or a family member of the employee except as specifically permitted by GINA and otherwise applicable law.

GINA §§ 203 and 204 extend similar prohibitions to employment agencies, labor unions and training programs.

Confidentiality Mandates. Under GINA § 206, an employer, employment agency, labor organization, or joint labor-management committee that possesses genetic information about an employee or member must protect the confidentiality of that information.  Under its provisions, employers and other covered entities must:

  •  Treat the genetic information as a confidential medical record of the employee or member and maintain it on separate forms and in separate medical files in the same manner as required for other medical records required to be maintained as confidential by Americans With Disabilities Act § 102(d)(3)(B); and
  • Only disclose it in the narrow circumstances specifically allowed by GINA.

Anti-Retaliation.  GINA also prohibits retaliation or other discrimination against any individual because such individual has opposed any act or practice prohibited by GINA, for making a charge, testifying or assisting or participating in any manner in an investigation, proceeding, or hearing under GINA. 

GINA’s Additional Group Health Plan Nondiscrimination & Privacy Rules Also Require Attention

In addition to taking appropriate steps to comply with the employment rules of Title II of GINA, employers and their group health plan fiduciaries and service providers also should ensure that the group health plan has been appropriately updated to comply with the group health plan nondiscrimination and privacy mandates of Title I of GINA. 

Effective for all group health plan years beginning on or after May 21, 2009, GINA’s new restrictions on the collection and use of genetic information by group health plans added under Title I of GINA are accomplished through the expansion of a series of already existing group health plan nondiscrimination and privacy rules.  GINA’s group health plan provisions amend and expand the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), Title VII of the Civil Rights Act, the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of information that falls within its broad definition of “genetic information” by  group health plans.  For individual health insurers, GINA’s restrictions take effect May 22, 2009.  The broad definition of the term “genetic information” in GINA will require group health plan sponsors and insurers to carefully review and update their group health plan documents, communications, policies and practices to comply with forthcoming implementing regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure in a series of areas.  

In this respect, wellness and disease management programs are likely to require special scrutiny and attention. GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of group health plan health assessment and other wellness and disease management programs which provide financial incentives or condition eligibility on the provision of family health histories or other information that could be construed as genetic information.  The implications of these GINA prohibitions are further complicated by recent changes in the disability nondiscrimination rules and guidance under the Americans With Disabilities Act.

Title I of GINA generally prohibits group health plans from collecting genetic information for underwriting or eligibility purposes.  It also expands already existing federal rules prohibiting group health plans from discriminating among individuals for purposes of determining eligibility or setting premiums based on health status previously enacted as part of HIPAA.   These existing rules already prohibit group health plans and health insurance issuers from discriminating based on health related factors including genetic information for purposes of determining eligibility or premiums. GINA expands these existing nondiscrimination requirements to further regulate group health plan’s use and collection of genetic information.   Under GINA’s nondiscrimination rules, group health plans and health insurers may not:

  • Request, require or purchase genetic information for underwriting purposes or in advance of an individual’s enrollment;
  • Adjust premiums or contribution amounts of the group based on genetic information;
  • Request or require an individual or family member to undergo a genetic test except in limited situations specifically allowed by GINA;
  • Impose a preexisting condition exclusion based solely on genetic information, in the absence of a diagnosis of a condition;
  • Discriminate against individuals in eligibility and continued eligibility for benefits based on genetic information; or
  • Discriminate against individuals in premium or contribution rates under the plan or coverage based on genetic information, although such a plan or issuer may adjust premium rates for an employer based on the manifestation of a disease or disorder of an individual enrolled in the plan.

GINA also prohibits insurers providing individual health insurance from establishing rules for eligibility, adjusting premiums or contribution amounts for an individual, imposing preexisting condition exclusions based on, requesting or requiring individuals or family members to undergo genetic testing.

Of particular concern to many plan sponsors and fiduciaries are the potential implications of these new rules on existing wellness and disease management features group health plans. Of particular concern is how regulators will treat the collection of family medical history and certain other information as part of health risk assessments used in connection with these programs. Although official guidance is still pending, many are concerned that regulators will construe certain commonly used practices of requiring covered persons to provide family medical histories or other genetic information through health risk assessments (HRAs) to qualify for certain financial incentives as a prohibited underwriting practice under GINA.  Even where health risk assessments are not used, however, most group health plan sponsors should anticipate that GINA will require specific amendments to their plan documents, communications and processes.

Taking timely action to comply with these nondiscrimination and collection prohibitions is important.  Under amendments to ERISA made by GINA, group health plan noncompliance can create significant liability for both the plan and its sponsor.  Participants or beneficiaries will be able to sue noncompliant group health plans for damages and equitable relief.  If the participant or beneficiary can show an alleged violation would result in irreparable harm to the individual’s health, the participant or beneficiary may not have to exhaust certain otherwise applicable Department of Labor administrative remedies before bringing suit.  In addition to these private remedies, GINA also authorizes the imposition of penalties against employers and other sponsors of group health plans that violate applicable requirements of GINA of up to $500,000. The minimum penalties generally are set at the greater of $100 per day or a minimum penalty amount ranging from $2,500 for de minimus violations corrected before the health plan received notice of noncompliance to $15,000 in cases in which the violations are more than de minimus.  GINA also includes language allowing the Secretary of Labor to reduce otherwise applicable penalties for violations that could not have been identified through the exercise of due diligence or when the plan corrects the violation quickly.

GINA Amendments To Health Plan Privacy Rules Under HIPAA

In addition to its nondiscrimination rules, GINA also amends HIPAA to make clear that “genetic information” as defined by HIPAA is protected health information protected by HIPAA’s Privacy & Security Standards of HIPAA. This means that it will require that all genetic information be treated as protected health information subject to the Privacy and Security Standards applicable to group health plans covered by HIPAA. Although the statutory provisions that accomplish these changes are deceptively simple, compliance with these requirements likely will require group health plans and their business associates to amend existing privacy policies, notices and practices to appropriately restrict disclosures for underwriting, operations and certain other uses to withstand scrutiny under the GINA privacy rule amendments. 

When contemplating these changes, many plan sponsors and administrators also will want to consider and begin preparing to comply with other refinements to their existing privacy and security practices required in response to HIPAA privacy and security rule amendments enacted as part of the HITECH Act provisions of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) provisions of the American Recovery and Reinvestment Act of 2009 (ARRA).  As GINA specifies that violations of its privacy rule restrictions trigger the same sanctions as other privacy rule violations, group health plans and their business associates also should give due consideration to these penalty exposures.  The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.  

GINA’s fractured assignment of responsibility and authority to develop, implement and enforce regulatory guidance of its genetic information rules can create confusion for parties involved in compliance efforts. Because the group health plan requirements of Title I of GINA are refinements to the group health plan privacy and nondiscrimination rules previously enacted as part of HIPAA, GINA specifically assigned authority to construe and enforce its group health plan requirements to the agencies responsible for the interpretation and enforcement of those original rules:  (1) the Department of Labor Employee Benefit Security Administration (EBSA); (2)  the Internal Revenue Services (IRS), and (3) the Department of Health & Human Services. 

These three agencies in early October published the interim final regulations construing the group health plan manatees of Title II of GINA, which are available for review here.  Group health plans, their employer and other sponsors, fiduciaries and service providers should act quickly to review and update their group health plan documents, procedures and other materials to comply with these new mandates.

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

Other Information & Resources

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

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

©2009 Cynthia Marcotte Stamer. All rights reserved. 


Senate Finance Chairman Baucus Introduces New Health Care Reform Bill

November 19, 2009

S.1796, America’s Healthy Future Act of 2009 Reflects Chairman’s Response To House’s Passage of HR 3962 & Other Feedback

Senate Finance Committee Chairman Max Baucus (D-MT) today (November 19, 2009) introduced his latest health care reform proposal, the America’s Healthy Future Act of 2009 (S.1796).  Chairman Baucus’ introduction of S. 1796 follows the November 7, 2009 passage by the U.S. House of Representatives of the massive health care reform proposal sponsored by Representative John Dingell (D-MI) and supported by Speaker Nancy Pelosi, the Affordable Health Care for America Act (HR. 3962).

Totaling 1504 pages in length, S.1796 proposes a lengthy and complex array of reforms to the U.S. health care coverage and delivery system, which would affect virtually each U.S. employer, health care provider, payer, and resident. As with the provisions of HR. 3962 and other versions of health care reform, the reforms outlined in the provisions of S.1796 include complexities and nuances which may not be apparent in partisan or non-partisan discussions or summaries of its goals or purposes. Consequently, individuals or businesses concerned about the proposed reforms are encouraged to begin and base their review and analysis on the actual text of S.1796, a copy of which as introduced is available for review here.  

The continuing emphasis of President Obama and other members of the Democratic Party Leadership in Congress on the passage of health care reform means that Senator Baucus and other Democratic Leaders in Congress are likely to continue to make passage of health care reform a priority.  U.S. businesses and individuals concerned about the proposed reforms should carefully review both the Senate and House bills and act quickly to provide their input on any matters of special interest and concern.

Selected Health Coverage Reform Highlights

Among other things, S.1796, as introduced, would enact sweeping health insurance coverage reforms that would create new obligations for employers, insurers, and individual workers.  In this respect, S.1796, among other things would:

  • Amend the Social Security Act (SSA) to add a new title XXII (Health Insurance Coverage) to ensure that all Americans have access to affordable and essential health benefits coverage.
  • Require all health benefits plans offered to individuals and employers in the individual and small group market to be qualified health benefits plans (QHBPs).
  • Amend the Internal Revenue Code to: (1) allow tax credits related to the purchase of health insurance through the state exchanges; and (2) impose an excise tax on individuals without essential health benefits coverage and on employers who fail to meet health insurance coverage requirements with respect to their full-time employees.
  • Prohibit QHBP from excluding coverage for preexisting conditions, or otherwise limiting or conditioning coverage based on any health status-related factors.
  • Require QHBPs to offer coverage in the individual and small group markets on a guaranteed issue and guaranteed renewal basis.
  • Amend the cafeteria plan rules of Internal Revenue Code § 125 to, among other things, require that in order for a health flexible spending arrangement (HFSA) to qualify as a qualified benefit eligible to be offered under a cafeteria plan, the cafeteria plan must limit the maximum salary reduction contribution per employee per taxable year to $2,500 beginning in 2011.
  • Increase the threshold for the itemized income tax deduction for medical expenses.
  • Require states to: (1) establish rating areas; (2) adopt a specified risk adjustment model; and (3) establish transitional reinsurance programs for individual markets.
  • Require QHBP offerors in the individual and small group markets to consider all enrollees in a plan to be members of a single risk pool.
  • Require the Secretary of Health and Human Services (HHS) to establish: (1) risk corridors for certain plan years; (2) high risk pools for individuals with preexisting conditions; (3) a temporary reinsurance program for retirees covered by employer-based plans; and (4) a program under which a state establishes one or more QHBPs to provide at least an essential benefits package to eligible individuals in lieu of offering coverage through an exchange.
  • Entitle a qualified individual to the choice to enroll or not to enroll in a QHBP offered through an exchange covering the individual’s state as well as QHBPs in the individual market while at the same time requiring that such individuals to be U.S. citizens or lawful residents.
  • Require each state to establish: (1) an exchange designed to facilitate enrollment in QHBPs in the individual market; and (2) a Small Business Health Options Program (SHOP) exchange designed to assist qualified small employers in facilitating the enrollment of their employees in QHBPs in either the individual or the small group market.
  • Direct the Secretary to: (1) establish a system allowing state residents to participate in state health subsidy programs; and (2) study methods exchange QHBPs can employ to encourage health care providers to make increased meaningful use of electronic health records.
  • Dictate the mandated contents of an essential health benefit benefits package, including little or no cost-sharing, no annual or lifetime limits on coverage, and preventive services.
  • Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
  • Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
  • With regard to abortions: (1) declare that the Act does not require health care benefits plans to provide coverage for abortions; prohibit QHBPs from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions; (3) continues application of state and federal laws regarding abortion; (4) prohibit the use of premium credits and cost-sharing subsidies for QHBPs covering abortion services for which federal funding is prohibited; (5) require the plan offeror to determine whether or not the plan provides coverage of abortion services for which federal funding is prohibited or is allowed; and  (6) require the Secretary to assure that at least one QHBP covers abortion services for which federal funding is prohibited or allowed; and at least one QHBP that does not cover abortion services for which federal funding is allowed.

Other Selected Health Care System, Reimbursement & Other Reform Highlights

S.1796 also would expand and modify existing Medicare, Medicaid, CHIP and other federal health care programs and enact a host of other new rules and requirements affecting health care providers, drug companies and other participants in the U.S. health care system.  Other proposed reforms include provisions that would:

  • Require the President to: (1) certify annually in the President’s Budget whether or not the provisions in this Act will increase the budget deficit in the coming fiscal year; and (2) instruct the HHS Secretary and the Secretary of the Treasury to make required reductions in exchange credits and subsidies.
  • Establish a new mandatory eligibility category under SSA title XIX (Medicaid) for all non-elderly, nonpregnant individuals who are otherwise ineligible for Medicaid.
  • Revise Medicaid benefits.
  • Rescind funds available in the Medicaid Improvement Fund for FY2014-2018.
  • Make appropriations for Aging and Disability Resource Center initiatives.
  • Increase the federal medical assistance percentage (FMAP) for states to offer home and community-based services as a long-term care (LTC) alternative to nursing homes.
  • Create a Community First Choice Option.
  • Add a new optional categorically needy eligibility group to Medicaid for individuals: (1) with income that exceeds 133% of the poverty line; and (2) certain other individuals, but only for benefits limited to family planning services and supplies.
  • Direct the Secretary to establish a grants program to support school-based health centers.
  • Remove smoking cessation drugs, barbiturates, and benzodiazepines from Medicaid’s excluded drug list.
  • Revise requirements for Medicaid disproportionate share hospital (DSH) payments.
  • Direct the Secretary to establish a Federal Coordinated Health Care Office within the Centers for Medicare & Medicaid Services (CMMS).
  • Direct the Secretary to establish a Medicaid Quality Measurement Program.
  • Revise requirements for the Medicaid and CHIP Payment and Access Commission (MACPAC) under SSA title XXI, Children’s Health Insurance Program.
  • Set forth special rules relating to American Indians and Alaska Indians.
  • Require the Secretary to establish procedures for sharing data collected under a federal health care program on race, ethnicity, sex, primary language, type of disability, and related measures and data analyses.
  • Amend SSA title V with respect to the Maternal and Child Health (MCH) block grant program.
  • Provide funding for abstinence education.
  • Incorporate reforms originally proposed under the Elder Justice Act of 2009 pursuant to which amendments would be made to the provisions of SSA title XX relating to Block Grants to States for Social Services with respect to elder abuse, neglect, and exploitation and their prevention.
  • Establish within the Office of the Secretary an Elder Justice Coordinating Council.
  • Direct the Secretary to establish a hospital value-based purchasing program under Medicare.
  • Extend the Medicare Physician Quality Reporting Initiative program (PQRI) incentive payments beyond 2010.
  • Modify the Physician Feedback Program.
  • Require the Secretary to develop a plan to implement a Medicare value-based purchasing program for home health agencies and skilled nursing facilities (SNFs).
  • Amend SSA title XVIII (Medicare) to direct the Secretary to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health.
  • Direct the President to convene an Interagency Working Group on Health Care Quality.
  • Amend the General Provisions of SSA title XI to provide for the establishment of a Center for Medicare and Medicaid Innovation within CMMS.
  • Amend SSA title XVIII to direct the Secretary to establish a shared savings program that promotes accountability for a patient population and coordinates items and services under Medicare parts A (Hospital Insurance) and B (Supplementary Medical Insurance).
  • Create a Hospital Readmissions Reduction Program.
  • Direct the Secretary to establish a Community-Based Care Transitions Program.
  • Revise requirements with respect to residents in teaching hospitals.
  • Increase the Medicare physician payment update.
  • Direct the Secretary to establish a Working Group on Access to Emergency Medical Care.
  • Extend the Medicare-Dependent Hospital Program.
  • Amend the Tax Relief and Health Care Act of 2006 with respect to the hospital wage index.
  • Establish a Medicare prescription drug discount program for brand-name drugs for beneficiaries who enroll in Medicare part D (Voluntary Prescription Drug Benefit Program) and have drug spending that falls into the coverage gap.
  • Establish an independent Medicare Commission to reduce the per capita rate of growth in Medicare spending.
  • Amend SSA title XI to add a new part D, Comparative Effectiveness Research, under which would be established a Patient-Centered Outcomes Research Institute.
  • Establish in the Department of Treasury the Patient-Centered Outcomes Research Trust Fund.
  • Establish a nationwide program for national and state background checks on direct patient access employees of long term care facilities and providers.
  • Direct the Secretary to establish new procedures for screening providers of medical or other items or services and suppliers under the Medicare, Medicaid, and CHIP programs.
  • Direct the Secretary to establish a self-referral disclosure protocol to enable health care service providers and suppliers to disclose violations.
  • Requires the Secretary to expand the number of areas included in Round Two of the durable medical equipment (DME) competitive bidding program.
  • Extend the period for collection of overpayments due to fraud.
  • Amend the Internal Revenue Code with respect to: (1) an excise tax on the excess benefit of high cost employer-sponsored health coverage; (2) distributions from health savings accounts for drugs and insulin that are prescribed drugs and insulin only; (3) a limitation on salary reduction contributions by employers to a health flexible spending arrangement; (4) expanded information reporting requirements; (5) additional qualifying requirements for charitable hospital organizations; and (6) a qualifying therapeutic discovery project tax credit.
  • Impose annual fees on: (1) manufacturers and importers of branded prescription pharmaceuticals or of medical devices; and (2) health insurance providers.
  • Prescribe a special rule to limit excessive remuneration by certain health insurance providers.
  • Exclude from an individual’s gross income the value of any qualified Indian health care benefit.

Monitoring & Responding To Health Care Reform Proposals

As was the case with HR. 3962, members of the Senate are likely to debate and weigh a variety of amendments and refinements to the provisions of S.1796 as it deliberates its enactment.  If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

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

If you have questions about or need assistance evaluating, commenting on or responding to health care or other legislative or regulatory reforms, or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment/Employee Benefits  Practice Chair Cynthia Marcotte Stamer. 

Ms. Stamer has more than 22 years of experience advising and assisting business, government and other clients to evaluate and respond to health care, pension reform, workforce and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws.  A member of the leadership council of the American Bar Association Joint Committee on Employee Benefits, Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally.  Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally.  In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally.  As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

In addition to her extensive work on health and other employee benefit matters, Ms. Stamer also is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and has continuously has advised and represented employers and others on labor and employment, compensation, employee benefit and other personnel and staffing matters throughout her career. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues.   Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association.  Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

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

Other Information & Resources

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

Proposed Chemical Facility Anti-Terrorism Bill Would Obligate Chemical Facilities To New Background Check, HR & Other Safety & Security Safeguards

IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

House Passes Affordable Health Care For America, Health Care Reform Debate Focus Now Moves To The Senate

SHRM Tells Members Say “NO!” To Pelosi-Backed Health Care Reform

IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

OSHA Proposes To Change Hazard Communication Standard

IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

New Study Shares Data On Migrant Health Care Challenges Along The Border

Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

HHS Reassignment Of HIPAA Enforcement Duties Signals Rising Seriousness of Enforcement Commitment

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

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

©2009 Cynthia Marcotte Stamer. All rights reserved. 


Legislation To Exempt Health Benefits For Domestic Partners and Other Beneficiaries Introduced In House & Senate.

June 3, 2009

June 3, 2009

Domestic partner benefits provided under employer or union sponsored health plans no longer would be taxable to enrolling employees if Congress adopts legislation recently proposed in the House and Senate.

HR 2625, the Tax Equity for Health Plan Beneficiaries Act and a companion bill, S 1153 S 1153 would amend the Internal Revenue Code of 1986 to extend the exclusion from gross income for employer-provided health coverage for employees’ spouses and dependent children to coverage provided to other eligible designated beneficiaries of employees, including domestic partners. According to a press release from Rep. McDermott, the bill would eliminate federal income and payroll taxes on health benefits provided to domestic partners. 

Currently, the value of health benefits provided to domestic partners of employees under an employer’s group health plan typically are taxable income to the employee for purpose of the Internal Revenue Code.  Valuing and reporting taxable payments on domestic partner benefits can be a headache for employers that provide those benefits.

If you need help responding to these proposals or with other questions relating to compliance or risk management under other federal or state employment, employee benefits, compensation, or internal controls laws or regulations, please contact Curran Tomko Tarski LLP Labor & Employment Practice Group Chair, Cynthia Marcotte Stamer at (214) 270.2402 or via e-mail here.   Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, “Cindy” works with businesses, speaks and publishes extensively on these and other labor and employment, employee benefit, internal controls and compensation matters.  For additional information about Curran Tomko Tarski LLP see the Curran Tomko Tarski Website.

Other Information & Resources

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

 ©2009 Cynthia Marcotte Stamer. All rights reserved.