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Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do

September 3, 2011

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

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

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

Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, incoming ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author, Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers and governments on health care, retirement, employment, insurance, :and tax program design, administration, defense and policy. Her experience includes extensive involvement in advising and representing these and other clients on ACA and other health care legislation, regulation, enforcement and administration. Widely published on health benefit and other related matters, Ms. Stamer’s insights and articles have been published by the Bureau of National Affairs, Aspen Publishers, Business Insurance, Employee Benefit News, the Wall Street Journal, the American Bar Association, Aspen Publishers, World At Work, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others.

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

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

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

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Posted by Cynthia Marcotte Stamer

New Affordable Care Act Guidance Helps Some Health Plans Stay Grandfathered

August 2, 2011

Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures Beginning In 2012

Contraception Mandate Might Not Apply To Certain Religious Employer Plans

Starting with plan years beginning after July 31, 2011, most employer and union sponsored group health plans and group and individual health insurers generally must cover contraceptive and certain other preventive services for women (“Women’s Preventive Services”) at no cost to comply with federal rules that these programs cover preventive care for members with no cost sharing enacted as part of the Patient Protection and Affordable Care Act (“ACA”).

On Monday, August 1, 2011, the Department of Health & Human Services (“HHS”) on Monday, August 1, 2011 announced guidelines (Women’s Preventive Services Guidelines”) that add contraception and a list of women’s health procedures to the preventive care procedures that ACA requires covered health plans and health insurance policies covered by the Affordable Care Act to cover without cost to members. ACA’s general preventive coverage rules generally have required covered health plans and policies to cover without cost a broad list of other preventive care procedures since the first plan year beginning after September 22, 2009.

Interim Final Regulations implementing ACA’s new preventive care mandate published July 14, 2010 interpreted this ACA preventive care mandate broadly to dictate that ACA covered health plans and health insurers cover as preventive services at no member cost hundreds of procedures.

Concerning the Women’s Preventive Services, however, the Interim Final Regulations delayed implementation of requirements to cover Women’s Preventive Services until August 1, 2011 to give time to HRSA time to issue its recommendations about what procedures should qualify as Women’s Preventive Services. When HRSA failed to finalize its input by August 1, 2011, HHS finalized its list of required Women’s Preventive Services now rather than to continue waiting for HRSA’s final input.

Finalization of the list of required Women’s Preventive Services now means covered health plans and policies must add coverage for these listed procedures with no co-pay beginning with all post-July 31, 2012 plan years.

While the published list of required Women’s Preventive Services generally mandates that ACA-covered health plans and policies cover contraceptive services for women at no cost beginning in 2012, some plans sponsored by religious employers and group health policies covering these groups may be exempt from the duty to coverage contraception under a new regulation that HHS, along with the Department of Labor Employee Benefit Services Administration (“EBSA) and the Department of Treasury Internal Revenue Service (“IRS”)(collectively, the “Agencies”) will jointly publish in the Federal Register on August 3, 2011. See here for more detailed information.

Plans & Insurers Should Review & Update Preventive Care & Other Wellness Benefits

Non-grandfathered health plans and policies, their sponsors, insurers, fiduciaries and administrators should carefully review and update their health plans for compliance with the existing preventive care mandates and other evolving rules about disease management and wellness benefits and coverages, as well as to consider the impending requirement to comply with additional Women’s Preventive Services coverage requirements in 2012 as part of their plan design and cost projections.

Existing health plans and health insurance should be reviewed to ensure that the programs appropriately cover all preventive services currently required by the applicable ACA mandates or other laws and re-reviewed for compliance with any updated rules before each plan year to identify any additional costs, changes to plan documents, communications, administrative procedures and vendor contracts required to administer the health plan in accordance with existing rules. For 2012, this should specifically consider the need to comply with the new Women’s Preventive Services coverage requirements that take effect next plan year also should be considered.

In addition to specifically planning for compliance with ACA’s preventive services coverage mandates, all health plans and policies, their sponsors, insurers, fiduciaries and administrators should review the other wellness and disease management components of their plans. In addition to ACA compliance, these arrangements may need redesign to minimize emerging exposures to challenge by the Equal Employment Opportunity Commission (“EEOC”) or private plaintiffs under the Americans With Disabilities Act (“ADA”). Since the Obama Administration took office, the EEOC has taken the position that many common wellness and disease management programs violate the ADA. In addition to these exposures, amendments to the nondiscrimination requirements of the Health Insurance Portability & Accountability Act (“HIPAA”), new nondiscrimination rules added by the Genetic Information & Nondiscrimination Act (“GINA”), federal mental health parity rules, evolving Affordable Care Act claims, coverage and other rules and guidance about essential benefits and other statutory, regulatory and enforcement changes often require updates to common disease management and wellness programs as well as other health plan provisions. Appropriate steps should be taken to review and update these and other plan terms, procedures, communications and practices to maintain compliance and support the ability to enforce plan terms and rely on plan cost projections.

The author of this update, attorney Cynthia Marcotte Stamer frequently conducts training and publishes on these and other matters. She is scheduled to speak about these and other changing health plan requirements in light of health care reform at the September 14, 2011 Houston WEB Chapter lunch and will be conducting briefings on preventive care, wellness and disease management and other rules for several other organizations over the next few months. You can find out about upcoming training or other events and get updates at www.CynthiaStamer.com.

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

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

Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 23 years of work, advocacy, education and publications on employee benefit and related matters.

A board certified labor and employment attorney Ms. Stamer continuously advises and 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 medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources programs and practices. She works extensively with plan sponsors, insurers, administrators, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.

Ms. Stamer is scheduled to conduct training on these and other health benefit requirements for a number of organizations over the upcoming month. For information about these and other training opportunities or for other resources and information, see here or contact Ms. Stamer directly.

For Help or More Information

If you have questions or need help understanding or responding to the Regulations, with other health benefit design, administration or operations concerns, or with other employee benefits, compensation, labor or employment or other workforce management concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.

Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, and a council member of the ABA Joint Committee on Employee Benefits, Ms. Stamer is nationally recognized for her more than 23 years pragmatic and innovative health program work.

Board certified in labor and employment law by the Texas Board of Legal Specialization with extensive leading edge health plan experience, Ms. Stamer has worked continuously throughout her career helping health plan sponsors, fiduciaries, administrators, insurers and others design, administer and defend health and other employee benefit and insurance programs domestically and internationally. She is widely recognized for her experience helping design and implement legally compliant self-insured and insured health reimbursement, mini-med, high-deductible health plans, limited benefit plans, 24-hour and occupational medicine, ex-pat and medical tourism, deductible reimbursement and other creative health benefit programs to solve a wide range of financial and other challenges while coping with changing regulatory and market realities. Her work includes both working with clients to design, document, implement and administer these and other arrangements, as well as the development of wellness and disease management, claims administration and appeals, eligibility, and other administrative services, processes and technologies. She also works with plan fiduciaries, plan sponsors, insurers, administrators, brokers and advisors, bankruptcy trustees, creditors, debtors, service providers and their officers and directors about the prevention, investigation, mitigation and resolutions of civil and criminal liability arising from suspected or known benefit administration claims, breaches of fiduciary duty, privacy and data security breach, vendor disputes and other disputes arising in relation to employee benefit and insurance arrangements. As a continuing part of this representation, Ms. Stamer regularly represents and defends plan sponsors, fiduciaries, third party administrators and other service providers and management officials in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. 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, World At Work, the ICEBS, SHRM 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

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Borzi Tells House Committee Current Fiduciary Regs Flawed; Must Fix Loopholes In Investment Advisor Definition To Protect Plans
Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics
Conviction Highlights Risks Of Misleading Investors
DOL Considers Easing Rules For Electronic Benefit Communications
Improving The Effectiveness Of Compliance & Risk Management By Getting Hr On The Compliance Team
IRS Establishes Safe Harbor Election For Allocating Success-Based Fees Paid On Certain Business Transactions
IRS Changing Substantiation Rules For Business Travel Expenses
9/22/11 Cutoff To Apply For Affordable Care Act Annual Limit Temporary Waiver
Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures
IRS Releases Health Savings Account, High Deductible Health Plan 2012 Indexed Amounts
IRS Guidance On Affordable Care Act Requirement That Employers Report Cost Of Health Coverage On W-2 Released
Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans Or Mismanage Employee Benefit Plan Responsibilities
Health Plans, Insurers Get Limited & Imperfect Relief From Grace Period Extension For Some New Affordable Care Act Health Claims & Appeals Rules
EEOC Finalizes Updates To Disability Regulations In Response To Ada Amendments Act: Employers Should Manage Risks
Employer Charged With Misclassifying & Underpaying Workers To Pay $754,578 FLSA Back Pay Settlement
Avoiding Liability For Another’s Health Plan Fraud
Health Plans & Employers Beware! $4.3 Million Civil Penalty Shows OCR Serious About HIPAA Enforcement
IRS Expands When HFSAS & HRAs May Allow Over-The-Counter Drug Purchases With Drug Cards
DOL Announces Changes To H-2b Prevailing Wage Calculation Rules
$1 Million + FLSA Overtime Settlement Shows Employers Should Tighten On-Call, Other Wage & Hour Practices
Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify
Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final Gina Regulations
EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination
DOL Proposes To Expand Investment Related Services Giving Rise To Erisa Fiduciary Status As Investment Fiduciary

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Posted by Cynthia Marcotte Stamer

Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do

July 29, 2011

Cynthia Marcotte Stamer will speak to the Houston Chapter of WEB at 11:30 a.m on September 14, 2011 on “Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do.” Get details and register online at www.webnetwork.org/houston.

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

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

Comments Off on Stamer Speaks 9/14 On Coping With Health Care Reform: What’s New, What Lies Ahead & What To Do | 105(h), Affordable Care Act, CHIP, COBRA, Employee Benefits, Employers, Employment Tax, ERISA, Excise Tax, Fiduciary Responsibility, FMLA, Health Care Reform, Health Plans, HIPAA, Human Resources, Income Tax, Insurance, Malpractice, Medicare Part D, Mental Health, Mental Health Parity, Patient Empowerment, Patient Protection and Affordable Care Act, Payroll Tax, Preemption, Prescription Drugs, Protected Health Information, Reporting & Disclosure, Tax Credit, Wellness Programs | Tagged: benefits, Employee Benefits, employee benefits policy, Health Care Reform, Health Insurance, Health Plans, health policy, Insurance, Speeches, Training, WEB | Permalink
Posted by Cynthia Marcotte Stamer

Labor Department 2011 Stats Show Employer Health Coverage & Other Benefit Statistics

July 29, 2011

A new 2011 U.S. Department of Labor Bureau of Labor Statistics Study of employee benefits offered shares key insights into how many employers offer employer-provided health and other benefits The study shows that health and other benefits offered by employers, how much employers contribute and when employees enroll in offered benefits varies widely varied by whether the employer is a government or private sector employer, the industry, size and other characteristics of the employer and the income, profession, education and other characteristics of the employee. It is no surprise that government employers that can pass along costs to taxpayers provide coverage more broadly and subsidize more of the cost.

With regard to health benefits, the report reveals that practices vary significantly among employers, on average, medical care benefits were available to 69 percent of private industry workers and half of workers participated in a medical plan. For single coverage, private sector employers paid 80 percent of the medical care premiums for full-time workers and 69 percent of medical care premiums for full-time workers in private industry. Data shows employees often elect not to take offered coverage.

In addition to data on medical benefits, the study also reports that paid leave remains the most commonly provided benefit nationally and includes data on other benefits.

The DOL highlights 1st time reporting of domestic partner status for 1st time in its announcement. Data also provided on paid vacation and other leave.

Read report summary and access report at http://www.bls.gov/news.release/ebs2.nr0.htm.

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Posted by Cynthia Marcotte Stamer

IRS Releases Health Savings Account, High Deductible Health Plan 2012 Indexed Amounts

May 18, 2011

The Department of Treasury released the inflation adjusted amounts for Health Savings Accounts (HSAs) applicable for purposes of § 223 of the Internal Revenue Code for 2012.

Under Revenue Procedure 2011-32, for 2012 the following inflation adjusted amounts will apply for purposes of applying the HSA limits during 2012:

Annual Contribution Limitation

For calendar year 2012, the annual limitation on deductions under § 223(b)(2)(A) is:

For an individual with self-only coverage under a high deductible health plan is $3,100.
For an individual with family coverage under a high deductible health plan is $6,250.

High Deductible Health Plan

For calendar year 2012, Revenue Procedure 2011-32 leaves the minimum deductible allowable for an arrangement to qualify as a “high deductible health plan” unchanged from the amounts implemented for 2011. This means that in 2012 a “high deductible health plan” will continue to be defined under § 223(c)(2)(A) as a health plan with an annual deductible that is not less than:

$1,200 for self-only coverage or
$2,400 for family coverage, and the annual out-of pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not exceed $6,050 for self-only coverage or $12,100 for family coverage.

HSA sponsors and administrators will want to ensure that their HSA plan documents, communications are timely and properly updated to reflect the adjusted numbers well in advance to the 2012 enrollment period. At the same time, high deductible health plan and HSA plan sponsors and administrators also should verify that their programs, as well as any health care flexible spending arrangements are updated for changes such as new rules conditioning reimbursement of over-the-counter medical expenses by HSAs and health care flexible spending accounts on the fulfillment of prescription requirements enacted as part of health care reform as well as other updates.

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Posted by Cynthia Marcotte Stamer

New Affordable Care Act Guidance Helps Some Health Plans Stay Grandfathered

April 20, 2011

Guidance published by the Departments of Health and Human Services (HHS), Labor and the Treasury (the Agencies) on April 1, 2011 provides welcome clarifications about the workings of the “grandfathered health plan rules” that play a key role in determining what health plans and insurance policies must comply with certain key health insurance coverage reforms enacted as part of the Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010 (the Reconciliation Act) (collectively, the Affordable Care Act).

Health plans, health insurers and sponsors, fiduciaries and service providers of these arrangements should monitor and consider carefully this and other emerging guidance when making decisions about the design and administration of health benefit programs in response to the Affordable Care Act.

Grandfathered Health Plan Status A Key Determinant of What Health Care Reform Rules Apply

While the Affordable Care Act generally requires that health plans and health insurance policies comply with a series of new mandates established by the Affordable Care Act beginning with the first plan year that begins after September 22, 2010, the Affordable Care Act, Interim Final Regulations originally jointly published June 17, 2010 as subsequently amended on November 17, 2011 (the Regulations).provide that certain plans or coverage existing on March 23, 2010 that qualify as “grandfathered health plans” are subject to only certain provisions of the Affordable Care Act. The Affordable Care Act and Regulations refer to these plans or health insurance coverage as “grandfathered health plans.”

Qualifying As Grandfathered Health Plan

For plans and insurers wishing to preserve the grandfathered health plan status of their programs, understanding when changes or other events affect the health plan’s ability to qualify as a grandfathered health plan is critical to understanding the consequences and potential costs of proposed plan design changes or certain other actions.

For purposes of determining when an arrangement that existed on March 22, 2010 qualifies as a “grandfathered health plan” for purposes of ACA, the Regulations require that the plan meet certain notification, documentation and other requirements set forth in the Regulations. The Regulation also provides a health plan that existed on March 23, 2010 will lose its eligibility for grandfathered status if the plan is amended to make significant changes that cut benefits or increase costs to covered persons. In order to avoid a loss of grandfathered health plan status, the Regulations require that except for certain “routine changes” identified in the Regulation, the health plan not have been modified or impacted by certain other changes after March 22, 2011. See HHS, DOL & IRS Rules Define “Grandfathered” Group Health Plans & Health Insurance Coverage under the Patient Protection and Affordable Care Act. Consequently, sponsors, insurers and administrators of health plans or health insurance policies that intend to rely upon grandfathered health plan status to limit the mandates applicable to their programs under the Affordable Care Act need a clear understanding of what changes and events will disqualify their plan or program for grandfathered health plans status.

April 1 Guidance

The FAQIV guidance jointly published April 1 by the Agencies helps to clarify certain aspects of the workings of the grandfathered health plan rules as construed and implemented under these Regulations. FAQIV, among other things:

Clarifies the date that a loss of grandfathered status becomes effective as a result of a plan amendment or other change is the date that the plan amendment or other change that will result in the loss of grandfathered status takes effect under the terms of the plan;
Shares a non-exhaustive list of reasons for transferring employees from a grandfathered health plan to another health plan that the Agencies recognize as “bona fide employment-based reasons” that permit the transfer of employees from one grandfathered health plan to another plan without a loss of grandfathered health plan status;
States that forfeiture of grandfathered health plan status does not result solely as a result of an increase in the participant co-payment or other cost-sharing under a health plan that results because a drug originally classified as having no generic alternative changes because a generic alternative becomes available and is added to the formulary, with a resulting increase in the cost-sharing level for the brand-name drug;
States that for purposes of determining if a health plan has experienced a change in the employer contribution rate that would result in a loss of grandfathered health plan status in a health plan where the employer contribution is determined based on a formula, an increase in the amount of the required employee contribution resulting as plan costs increase will not trigger a loss of grandfathered status if the employer contribution formula (or its underlying elements used to calculate the contribution) does not change;
Provides added guidance about when a health plan can add or expand value based design features to a health plan without forfeiting its grandfathered health plan status; and
Invites public input about how the Agencies should treat value based plan design or wellness program related additions or changes to health plans for purposes of the grandfathered health plan rules.

FAQIV is only one of a continuous stream of new guidance about the Affordable Care Act and other federal and state health benefit program mandates which plan sponsors, insurers, administrators and fiduciaries need to understand and respond to effectively as they deal with their health benefit programs and arrangements. Ms. Stamer is scheduled to conduct training on these and other health benefit requirements for a number of organizations over the upcoming month. For information about these and other training opportunities or for other resources and information, see here or contact Ms. Stamer directly.

For Help or More Information

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Health Plans, Insurers Get Limited & Imperfect Relief From Grace Period Extension For Some New Affordable Care Act Health Claims & Appeals Rules

March 24, 2011

The Departments of Labor, Health & Human Services and Internal Revenue Service are extending a previously announced enforcement grace period under which the agencies will not take enforcement against health plans or health insurers that attempt to operate in good faith compliance with, but fail to meet certain new requirements for handing medical claims and appeals enacted as part of the Patient Protection and Affordable Care Act (Affordable Care Act). While health plans and insurers working in good faith to comply with the new requirements may find the enforcement relief helpful for dealing with some areas of uncertainty about the interpretation of certain requirements, it is important to keep in mind that the enforcement grace period provides only limited and somewhat imperfect relief. As a result, health plans, health insurers and those responsible for their design and administration are encouraged to continue to move forward on efforts to comply with the new requirement in thoughtful and well-documented manners despite the announced grace period extension.

New Claims & Appeals Requirements & Enforcement Grace Period

As signed into law on March 23, 2010, the Affordable Care Act generally requires that health plans and health insurance policies that are not “grandfathered” to begin complying with a series of new requirements by the first day of the first plan year that begins after September 22, 2010. These new requirements include a number of new requirements about the way that nongrandfathered health plans and health insurance policies handle medical claims and appeals. For instance, the Affordable Care Act as construed by the agencies in interim final regulations published by the agencies on July 23, 201 will require that non-grandfathered group health plans and insurers issuing non-grandfathered health insurance plans and policies:

Implement specified internal and external review procedures that among other things mandate independent external review of medical judgment based decisions in accordance with the regulations for reviews of appeals of medical judgment based denials;
Provide a broad range of new information in notices regarding claims and do so in a culturally and linguistically appropriate manner;
Provide continued coverage pending the outcome of an internal appeal; and
Comply with a laundry list of additional criteria for ensuring that a claimant receives a full and fair review in addition to complying with the requirements of existing Labor Department claims and appeals procedures.

After the agencies jointly published interim final regulations defining and implementing these requirements on July 23, 2010, last September the agencies announced that they would not enforce certain elements (but not all) of the new requirements set forth in the interim final regulations against covered health plans or health insurers seeking to comply in good faith with the new requirements through July 1, 2011. In the March 18, 2011 announcement, the Department of Labor said that the agencies now have agreed to extend this reprieve from agency enforcement of the requirements listed in the guidance against plans seeking to comply in good faith with the new requirements until plan years beginning on or after January 1, 2012.

While offering welcome relief, covered health plans and insurers, their sponsors and issuers should not over-estimate the reach and protection provided by this new guidance. For instance:

First, in order to qualify for the enforcement grace period, efforts must be made to administer the health plan or health insurance policy in good faith compliance with the new requirements during the enforcement grace period.
Second, the enforcement grace period provides only limited relief. The extension to 2012 only four of a series of new requirements set forth in the interim final regulations. Nongrandfathered plans and their administrators and insurers remain accountable for prudently administering claims and appeals in accordance with all other requirements of the Affordable Care Act as well as pre-existing claims and appeals regulations set forth in 2000 claims regulations issued by the Department of Labor pursuant to the Employee Retirement Income Security Act.

Third, the enforcement grace period guidance only means that the agencies will not exercise their power to take action against a non-compliant plan. It does not prevent plan members, health care providers with benefit assignments or other plan beneficiaries from bringing lawsuits against health plans, health insurers or their administrators for failing to comply with the new requirements during post- September 22, 2010 plan years even if the enforcement grace period otherwise protects the plan or insurer from agency enforcement action. This means that health insurers and health plans may still run the risk that plan members or beneficiaries will ask courts to reverse claims or appeals denials or impose other penalties and sanctions against plans or their fiduciaries for failing to meet the new requirements for post-September 22, 2010 plan years.

Finally, and perhaps most significantly, the grace period guidance requires nongrandfathered plans and insurers to make “good faith” efforts to comply with the requirements covered by the relief during the grace period in order to be eligible to claim the relief offered by the enforcement grace period guidance.

Consequently, despite the relief announced March 18, nongrandfathered health plans still have significant work to do to comply with the new Affordable Care Act claims and appeals requirements even during the announced enforcement grace period.

For Help With Affordable Care Act or Other Employee Benefits or HR Needs

If you have any questions or need help responding to the Affordable Care Act or other any other health plan or insurance employee benefit, compensation, workforce or internal control concerns, please contact the author of this update, Cynthia Marcotte Stamer here or at (469)767-8872.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

IRS, HHS & DOL To Delay Enforcement of New Insured Group Health Plan Non-Discrimination Rules Pending Guidance; Seek Public Input on Rules

January 24, 2011

Implications of Announced Reprieve on Possible Participant Suits Unclear

The Internal Revenue Service (IRS), Department of Labor (DOL) and Department of Health & Human Services (HHS) recently announced that the agencies do not plan to enforce new rules that prohibit non-grandfathered insured group health plans from discriminating in favor of highly compensated employees until guidance is published on the workings of certain key elements of these requirements. The IRS announced the relief from enforcement of the new insured group health plan nondiscrimination requirements enacted as part of the Patient Protection and Affordable Care Act (Affordable Care Act) in Notice 2011-1, which was published in the Internal Revenue Bulletin on January 7, 2011. According to Notice 2011-1, the Agencies determined that questions about the construction of certain aspects of the non-discrimination rules made it inappropriate to require insured group health plans to comply or to impose sanctions for their failure to comply with the new non-discrimination rules until the agencies publish certain regulations or other administrative guidance. According to Notice 2011-1, pending the publication of further guidance, the agencies do not intend to enforce sanctions for non-compliance with the new non-discrimination rules and will not require insured group health plan sponsors to file IRS Form 8928 with respect to excise taxes resulting from the incorporation of Public Health Services Act (PHS Act) § 2716 into Internal Revenue Code (Code) § 9815. Its unclear how this guidance will impact possible participant or beneficiary suits to enforce the new rules under Section 512 of the Employee Retirement Income Security Act (ERISA).

New Insured Plan Non-Discrimination Rules

As part of the Affordable Care Act health care reforms, Congress amended the PHS, Code and ERISA to require insured non-grandfathered group health plans to satisfy non-discrimination rules like those applicable to self-insured group health plans under Code § 105(h). Unlike the taxation of highly compensated participants that generally results from a discriminatory self-insured group health plan, however, the Affordable Care Act provides for potentially draconian sanctions against an insured group health plan or its sponsor when an insured group health plan violates these non-discrimination requirements.

The Affordable Care Act generally provides that if a non-grandfathered insured employer-sponsored group health plan that discriminates in favor of highly compensated employees in a manner that would violate the non-discrimination requirements of Code § 105(h)(2) in any post-September 22, 2010 plan year, the plan or plan sponsor may face significant excise taxes, civil money penalties, and lawsuits to compel it to provide nondiscriminatory benefits to non-highly compensated participants equivalent to the discriminatory benefits provided to highly compensated participants.

According to Notice 2011-1, the agencies determined from initial public comments that without regulations or other administrative guidance under PSA § 2716, plan sponsors are uncertain how to apply the nondiscrimination provisions. Accordingly, Notice 2011-1 indicates that the agencies decided that their enforcement of the new insured group health plan nondiscrimination rules should be delayed until the publication of that guidance. Notice 2011-1 invites concerned plan sponsors and others to submit comments on a broad range of concerns relating to this guidance. According to Notice 2011-1, the deadline for submission of this input is March 11, 2011.

Implications of Relief For Insured Group Health Plans

While Notice 2011-1 indicates that HHS and DOL also plan to hold off enforcement of the new non-discrimination rules, it is unclear what effect, if any, the relief announced in the Notice will have on the ability of participants and beneficiaries to enforce the requirements by filing civil lawsuits under ERISA. Under ERISA § 512, participants and beneficiaries generally have the ability to sue plans and their fiduciaries for equitable relief to enforce violations of ERISA. As amended by the Affordable Care Act, the new non-discrimination requirements for insured group health plans of ERISA § 715(a)(1) are effective for all post-September 22, 2010 plan years. Accordingly, while insured group health plans and their sponsors still potentially risk participant or beneficiary law suits if their program is discriminatory.

While awaiting further guidance from the agencies, insured and self-insured group health plans, their sponsors and fiduciaries should document their attempt to prudently evaluate and determine their responsibilities under the non-discrimination rules, and other federal laws. In addition, plans, their fiduciaries, sponsors and service providers should begin implementing and administering the data collection and other processes that they are likely to need to test their programs for discrimination and perform other requirements. To encourage the agencies to adopt regulations that are sensitive to the challenges of plan sponsors and plans in meeting these requirements, plan sponsors, fiduciaries, insurers and service providers also should provide input to the agencies and Congressional health care policy leaders about these concerns.

For More Information Or Assistance

If you need assistance submitting comments to the agencies, evaluating or updating your plans in response to these new rules or auditing or assessing, updating or defending other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

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

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested in exploring other Solutions Law Press, Inc. ™ tools, products, training and other resources here and reading some of our other Solutions Law Press, Inc.™ human resources or other updates here.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

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Posted by Cynthia Marcotte Stamer

Affordable Care Act’s Health Plan External & Internal Review Safe Harbor & Other Regulations Require Health Plan Updates

August 26, 2010

The Patient Protection & Affordable Care Act (Affordable Care Act) generally mandates that all group and individual health plans and policies comply with these mandates no later than the first plan or policy year beginning after September 22, 2010 unless the plan or policy qualifies as a “grandfathered plan” under the Affordable Care Act. Employer and other health plan sponsors, insurers, fiduciaries and administrators of all federally-regulated employment-based health plans should move quickly to update plan documents, administrative procedures and agreements, decisional criteria, investigation and decision-making documentation, and claims and appeals-related notification and other communications to comply with a series of new Federal guidance governing health plan claims and appeals published in the Federal Register on July 23, 2010 as further supplemented by additional “safe harbor” external review procedures published in the Federal Register today (August 26, 2010) (collectively the ACA Appeals Rules”).

Although the ACA Appeals Rules technically apply only to non-grandfathered plans, Agency commentary about existing Labor Department health plan claims and appeals procedures published along with the ACA Appeals rules sends a strong signal that the adequacy of all health plan claims and appeals procedures is warranted. As many health plan sponsors and health insurers are deciding that compliance with Affordable Care Act mandates is more cost effective than meeting the conditions that federal regulations require for a health plan to maintain grandfathered plan status, most group health plans and policies will need to be updated to comply with these new rules quickly. Even if a plan qualifies as a grandfathered plan, however, comments contained included the preamble to the July 23, 2010 guidance and recent court decisions send a strong signal that a review and update of existing claims and appeals procedures and practices is warranted. Read more.

For assistance to review and update your health or other employee benefit claims and appeals or other terms, processes, notices and communication or other processes and procedures, please contact the author of this update, attorney Cynthia Marcotte Stamer at (469) 767-8872 or cstamer@solutionslawyer.net.

Learn More About Affordable Care Act Mandates: Order Recording of August 24 “2010 Health Plan Update”

Details of recently released guidance about federal health plan rules applicable to employment-based health plans under the Affordable Care Act and other federal health plan regulations were among the topics covered in a “2010 Health Plan Update” internet broadcast briefing on Tuesday, August 24 2010. For more information about this briefing, see here. If you are interested in purchasing a recording of this briefing, e-mail here.

For Assistance or More Information

If your organization needs assistance updating your heath care program documentation, policies or procedures in response to these or other requirements or with other employee benefit, insurance or human resources matters, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Current Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer continuously advises employers, health and other employee benefit plans, plan sponsors, fiduciaries, plan administrators, plan vendors, insurers and others about health program related legal, operational, documentation, public policy, enforcement, privacy, technology, litigation and risk management and other concerns. Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on these and other health and managed care program concerns and practices. She regularly speaks and conducts training for the ABA, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To contact Ms. Stamer or for additional information about Ms. Stamer, her experience, involvements, programs or Publishers of her many highly regarded writings on health industry and human resources matters include the Bureau of National Affairs, Aspen Publishers, ABA, AHLA, Aspen Publishers, Schneider Publications, Spencer Publications, World At Work, SHRM, HCCA, State Bar of Texas, Business Insurance, James Publishing and many others. You can review other highlights of Ms. Stamer’s experience here.

Other Resources

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

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

New Affordable Care Act Health Plan Appeals Regulations Require Health Plan Updates

July 23, 2010

Register For August 24^th 2010 Health Plan Update To Catch Up On Latest Federal Health Plan Regulations

Employer and other plan sponsors, administrators, and fiduciaries of non-grandfathered group health plans must move quickly to update their plan documents, administrative procedures and agreements, claims and other communications and other processes and procedures to comply with new regulations (Appeals Rules) implementing tightened health plan claims and appeals rules enacted under the Patient Protection & Affordable Care Act (Affordable Care Act) jointly published by the U.S. Departments of Health & Human Services (HHS), Labor (DOL) and Treasury yesterday (July 23, 2010). The new Appeals Rules are the latest in a wave of new Affordable Care Act and other federal regulations that require quick action by employment based health plans, their employer and other sponsors, fiduciaries, administrators and insurers. Regulations issued in previous weeks by the Departments define when health plans and health insurance policies qualify as “grandfathered” under the Affordable Care Act and interpret and implement many other federal health plan rule changes enacted by the Affordable Care Act. In addition to responding to these Affordable Care Act changes, most group health plans also will require updates in response to other federal health plan rule changes beyond those enacted under the Affordable Care Act. To assist concerned business leaders, plan fiduciaries and plan administrators to understand and cope with these new rules, Solutions Law Press invites you to participate in the live “2010 Health Plan Update,” internet workshop on August 24, 2010 from 11:00 a.m.-1:30 p.m. Central Time. To register or for other details, see here.

Affordable Care Act Appeals Rules & Other Federal Claims & Appeals Regulations Make Prompt Plan Review & Update Advisable

Currently, all group health plans covered by the Employee Retirement Income Security Act (ERISA) must prudently process and administer claims and appeals using reasonable claims and appeals procedures that comply with detailed Labor Department regulations. Recent Supreme Court and other decisions send a strong signal that many group health plans, their insurers, and administrators need to tighten their existing documentation and practices to promote the defensibility of claims and appeal decision making under the existing requirements of ERISA and the existing Labor Department regulations implementing these requirements. These existing claims and appeals requirements generally will continue to apply to all ERISA-covered group health plans without regard to whether the group health plan qualifies as grandfathered or non-grandfathered for purposes of the affordable care act.

The new requirements generally will apply to claims denials and coverage rescissions made by non-grandfathered health plans beginning with the first plan year beginning after September 22, 2010. Furthermore, non-grandfathered group and individual health policies subject to the Appeals Rules also may continue to be required to comply with state-mandated external and/or independent review and other state-imposed claims and appeals procedures.

In addition to complying with existing claims and appeals requirements, the new Appeals Rules also will require that non-grandfathered health plans modify existing claims and appeals procedures to comply with new federal appeals protections mandated under the Affordable Care Act. The Appeals Rules requirements for internal claims and appeals processes generally will apply to any denial, reduction, or termination of, or failure to provide or make a payment (in whole or in part) for a benefit, including any:

Rescission of coverage as defined in the regulations restricting rescissions
Determination of an individual’s eligibility to participate in a plan or health insurance coverage
Determination that a benefit is not a covered benefit
Imposition of a preexisting condition exclusion, source-of-injury exclusion, network exclusion, or other limitation on otherwise covered benefits
Determination that a benefit is experimental, investigational, or not medically necessary or appropriate
Other denial, reduction, or termination of, or a failure to provide or make a payment (in whole or in part) for a benefit can include both pre-service claims (for example, a claim resulting from the application of any utilization review), as well as post-service claims and
Any other instance where a plan pays less than the total amount of expenses submitted with regard to a claim, including a denial of part of the claim due to the terms of a plan or health insurance coverage regarding co-payments, deductibles, or other cost-sharing requirements.

When applicable, the new Appeals Rules among other things will require that non-grandfathered group health plans and insurers issuing non-grandfathered health insurance plans and policies:

Implement specified internal and external review procedures
Must continue to provide continued coverage pending the outcome of an internal appeal
Comply with the Appeals Rules’ additional criteria for ensuring that a claimant receives a full and fair review in addition to complying with the requirements of existing Labor Department claims and appeals procedures.

Highlights of some of these fair review requirements include:

Timely allowing a claimant to review the claim file and to present evidence and testimony as part of the internal claims and appeals process
Before issuing a final internal adverse benefit determination based on a new or additional rationale, timely proving the claimant free of charge, with the rationale
Complying with the Appeals Rules’ requirements for ensuring that all claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision
Providing certain notifications regarding appeals and other rights as required by the Appeals Rules

The Appeals Rules also state that if a plan or issuer that fails to strictly adhere to all of its requirements with respect to a claim, the claimant may initiate an external review and pursue any available remedies under applicable law, such as judicial review regardless of whether the plan or issuer asserts that it substantially complied with these requirements or that any error it committed was de minimis.

Both Grandfathered & Non-Grandfathered Plans Should Review Existing Claims & Appeals Procedures For Compliance With Existing Labor Department Regulations

Grandfathered health plans will not be required to comply with the new Appeals Rules. Like non-grandfathered plans, however, grandfathered plans will remain covered by the current claims and appeals requirements of ERISA and the existing Labor Department regulations. Along the Labor Department updated its existing claims and appeals regulations a decade ago, many plan fiduciaries, administrators and insurers have failed to fully update their plan documentation, processes and notifications to comply with these highly specific and detailed requirements. Furthermore, most grandfathered health plan sponsors and administrators also will want to consider whether any tightening of their health plan’s claims and appeals processes is warranted by language contained in the preamble to the Appeals Rules that that clarifies the Labor Department’s interpretation of existing claims and appeals procedures.

Other Affordable Care Act & Other Health Plan Rule Changes Require Prompt Action By Group Health Plans, Sponsors, Fiduciaries & Administrators

The Appeals Rules are the latest in a series of recently-issued guidance implementing various health coverage requirements of the Affordable Care Act. It follows closely the publication by the Agencies of regulations about when group health plans and insurance qualify as “grandfathered plans” for purposes of determining deadlines for complying with certain health care reform requirements imposed under the Affordable Care Act and a series of other regulations construing and implementing various other Affordable Care Act requirements. For additional information about these other Affordable Care Act requirements, see here.

These Affordable Care Act and other impending federal health plan changes will require employment-based group health plans, their employer and other plan sponsors, plan fiduciaries, plan administrators and other service providers and insurers to make quick decisions and to act quickly to meet impending federal compliance deadlines while preserving flexibility.

All employer and other group health plan sponsors, fiduciaries, insurers and administrators should be prepared to act quickly to update their health plan documents, communications, insurance and vendor agreements and other practices to comply with new federal requirements that become effective under the Affordable Care Act on the first day of the plan year beginning after September 22, 2010 and various other changes in federal health plan rules effective or scheduled to take effect during 2010 or 2011 plan years. Many plan sponsors also may need to act quickly to cancel or revise certain design or vendor changes planned or already implemented since March 23, 2010 to position their health plan to qualify for grandfather status. Quick action also may be needed to preserve options to claim small employer tax credits, retiree medical subsidies or other opportunities.

August 24 “2010 Health Plan Update” Internet Workshop Provides Key Information

The August 24, 2010 “2010 Health Plan Update” briefing will cover the latest guidance on Affordable Care Act and other federal health plan regulatory changes impacting employment-based group health plans and their sponsors for plan years beginning between September 23, 2010 and September 22, 2011 and other key information to help employers, group health plans, insurers, plan administrators, fiduciaries, broker and others working with these plans to understand and respond to these new requirements including:

How to qualify your health plan as a grandfathered plan under Affordable Care act
How to decide if maintaining grandfathered plan status is worthwhile
Claims & appeals requirements for grandfathered & non-grandfathered plans
Preventive care coverage mandates & wellness program requirements & rules under Affordable Care Act & other federal regulations
Updated dependent child eligibility, pre-existing condition & other requirements for grandfathered & non-grandfathered plans
Special enrollment, preexisting condition & other eligibility mandates for grandfathered & non-grandfathered plans under new Affordable Care Act, new FMLA, COBRA, Michelle’s Law, HIPAA & other federal regulations
Mental health & substance abuse, provider choice & other benefit mandates under Affordable Care Act, Mental Health Parity & other federal rules
Update on other recent & pending Affordable Care Act group health plan rule guidance
Tips to review & update your plans, vendor agreements & processes to meet Affordable Care Act & other federal group health plan dictates
Expected future Affordable Care Act & other federal rule changes & tips for preparing
Practical strategies for responding to new requirements & changing rules
Participant questions

To register or get additional information, see here.

About The Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employer and other plan sponsors, insurers, administrators, fiduciaries, governments and others design, administer and defend innovative health and other employee benefit programs and other human resources, compensation and management policies and practices. Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer also is recognized for her publications, industry leadership, workshops and presentations on these and other health industry and human resources concerns. You can review other highlights of Ms. Stamer’s experience here. If you need help with human resources or other management, concerns, wish to ask about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer here or (469)767-8872.

Solutions Law Press & Other Solutions Law Press Resources

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

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Posted by Cynthia Marcotte Stamer

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

May 19, 2010

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

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

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

About Ms. Stamer

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

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

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

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

Other Resources

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

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

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.

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.

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Posted by Cynthia Marcotte Stamer

Privacy Rule Changes & Posting of Breach Notices On OCR Website Signal New Enforcement Risks For Health Plans, Their Sponsors & Business Associates

February 23, 2010

By Cynthia Marcotte Stamer

The Department of Health and Human Services Office of Civil Rights (OCR) has begun disclosing on its website the employer and other health plans, health care providers, health care clearinghouses and their business associates (Covered Entities) that report breaches of unsecured protected health information (UPIC) affecting more than 500 individuals as required by new rules enacted as part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act). This posting of Covered Entities reporting breaches comes just days after these and other Covered Entities became subject on February 17, 2010 to a host of other tighter federal requirements for the use, access, protection and disclosure of protected health information under Privacy & Security Standards of the Health Insurance Portability & Accountability Act (HIPAA) also enacted as part of the HITECH Act. As failing to comply with the amended rules effective February 17, 2010 can trigger obligations under the Breach Regulations and other exposures, prompt action to manage risk under both the Breach Regulations and the revised HIPAA rules is critical to minimize Covered Entity and business associate exposures under both these rules. With criminal, administrative and civil prosecutions of such violations increasing and likely to expand, timely action to manage compliance and other risks is warranted. Health plans and their business associates also should prepare for increased awareness and oversight of the adequacy of their medical information safeguards as these disclosures and other enforcement actions heighten interest and awareness of employees and others in these rules.

Covered Entity Breach Notification Requirements

OCR posted the initial list of Covered Entities disclosing these breaches on its website for the first time yesterday (February 22, 2010) to comply with breach notification requirements imposed by Section 164.408 of the interim “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) published here.

The Breach Regulation requires Covered Entities subject to the Health Insurance Portability & Accountability Act (HIPAA) to notify affected individuals, OCR and certain other parties following a “breach” of “unsecured” protected health information occurring on or after September 23, 2009. The Breach Regulation implements new breach notification requirements added to HIPAA by Section 13402(e)(3) of the Health Information Technology for Economic and Clinical Health Act (HITECH Act). It and the posting of Covered Entities reporting breaches of protected health information are part of the ongoing implementation and enforcement of new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under provisions of the HITECH Act and expanded remedies for violations signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA).

You can review the list of Covered Entities that have reported breaches on the OCR website here. Learn more about the Breach Regulation requirements here.

Broader & Stricter Medical Privacy Mandates Effective 2/17/210

Just last Wednesday (February 17, 2010) Covered Entities and their business associates also became subject to tighter federal requirements for the use, access, protection and disclosure of protected health information under amendments to HIPAA’s Privacy & Security Standards enacted by the HITECH Act. The changes that became effective on February 17, 2010 generally require that Covered Entities and their business associates make specific changes to update their written policies, operational procedures, privacy notices, business associate agreements, training, and other management procedures in several respects. For more details, see here.

While the HITECH Act gave Covered Entities and business associates a year to complete the necessary arrangements to comply with these HITECH Act changes, many Covered Entities and business associates have remain unnecessarily exposed under these new requirements by not completing or otherwise failing to adequately implement the necessary arrangements despite expanding liability exposures that can result from noncompliance. To mitigate these exposures, Covered Entities and their business associates should act quickly to review and update their policies, procedures, training, business associate and other services agreements, and other practices and procedures, as well as to implement the training, oversight, and other management necessary to comply with the HITECH Act changes and to mitigate other HIPAA risks.

Exposures Significant & Growing

Covered Entities and business associates failing to devote adequate attention and resources to managing HIPAA compliance and associated risks risk increasing peril. Aside from the potential implications that disclosures of violations may have on patients and others impacting their business, the legal risks of noncompliance for Covered Entities, business associates and others mishandling protected health information are real and growing.

Timely action to comply with the amended HIPAA requirements and Breach Regulations is important both to preserve critical trust in the business, to avoid triggering breach notifications that can undermine this trust and fuel legal complaints, and to avoid exposure to an expanding range of sanctions that can result when a violation occurs.

Amendments made under the HITECH Act have expanded the size and availability of remedies that can be imposed for HIPAA violations as well as the parties empowered to pursue these remedies. Wrongful use, access or disclosure of protected health information in violation of HIPAA subjects participating health plans, health care providers, health care clearinghouses, their business associates and other workforce members and others to civil penalties, criminal prosecution and, since February 17, 2009, civil lawsuits brought by state attorneys general on behalf of citizens of their states whose HIPAA rights were violated. Since September 23, 2009, health plans and other HIPAA Covered Entities as well as their business associates also became obligated to provide breach notification under new mandates imposed by the HITECH Act. Coupled with increased enforcement emphasis by regulators, these expansions to HIPAA’s remedy provisions increase the risk that Covered Entities or business associates violating HIPAA face investigation and sanction. Furthermore, the wrongful use, access or disclosure of protected health information or other confidential information also increasingly is the basis of civil or criminal actions brought under a variety of other federal and state laws.

Expanded HIPAA & Other Federal Prosecutions & Remedies

The expanded requirements imposed under the Breach Regulation and the other HITECH Act changes that took effect on February 17, 2010 follow the implementation changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, when President Obama signed the HITECH Act into law. The HITECH Act amendments to HIPAA’s remedies significantly increase the risk that health plans and other Covered Entities and their business associates will face civil lawsuits, civil or criminal penalties or other consequences for violating HIPAA. Noncompliance with these and other HIPAA requirements subjects Covered Entities and business associates to civil penalties, criminal prosecution, civil damage awards under lawsuits brought by state attorneys general, and other legal remedies. In addition, timely update written policies, procedures, business associate agreements, training and documentation is imperative in order for Covered Entities and their business associates to fulfill their breach notification obligations under new rules enacted as part of the HITECH Act.

HITECH Amendments Expand Liability Exposures

The expanded risks stem in part from the HITECH Act’s amendments to HIPAA’s remedy provisions. Among other things, the HITECH Act amended HIPAA to:

Allow a State Attorney General to sue health plans or other Covered Entities, business associates or both that harm state citizens by committing HIPAA violations after February 16, 2009;
Expand the mandate by OCR to investigate violations and audit compliance with HIPAA;
Require Office of Civil Rights to impose civil sanctions against Covered Entities and business associates involved in violations of HIPAA in accordance with tightened standards added to HIPAA by the HITECH Act;
Revise the criminal sanctions that the Department of Justice can seek against Covered Entities, their business associates and others for violations of HIPAA; and
Amend HIPAA to make clear that HIPAA’s criminal sanctions also can imposed on business associates, workforce members and other persons that improperly use, access and disclose protected health information in violation of HIPAA.

State Attorney General Lawsuit Exposures

Covered Entities and their business associates now also need to be concerned about the potential that a state Attorney General may bring civil suit to remedy damages caused to state citizens by a breach of HIPAA.

The HITECH Act empowers a state attorney general to sue Covered Entities or business associates engaging in HIPAA violations that harms citizens of the state for statutory damages equal to the sum of the number of violations multiplied by 100 up to a maximum of $25,000 per calendar year plus attorneys fees and costs

A HIPAA civil lawsuit filed on January 13, 2010 demonstrates the willingness of at least some states to exercise the new authority created by the HITECH Act on February 17, 2009 to sue Covered Entities and business associates that violate HIPAA for civil damages.

On January 13, 2010 Connecticut Attorney General Richard Blumenthal sued Health Net of Connecticut, Inc. (Health Net) for failing to secure private patient medical records and financial information involving 446,000 Connecticut enrollees and promptly notify consumers endangered by the security breach. The suit also names UnitedHealth Group Inc. and Oxford Health Plans LLC, who have acquired Health Net. The first attorney general enforcement action brought based on amendments made to HIPAA under the HITECH Act, Connecticut charges that Health Net violated HIPAA by failing to safeguard protected medical records and financial information on almost a half million Health Net enrollees in Connecticut then allowing this information to remain exposed for at least six months before notifying authorities and consumers.

Stepped Up Federal Enforcement

Even before the HITECH Act amendments, however, OCR and Department of Justice already were stepping up HIPAA investigation and enforcement. The Department of Justice has obtained a variety of criminal convictions against violators of HIPAA. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information. Meanwhile, OCR also is emphasizing HIPAA enforcement. In February, 2009, for instance, OCR announced that CVS Pharmacies, Inc. would pay $2.25 million to resolve HIPAA charges. This announcement followed OCR’s announcement in July, 2008 that Providence Health Care would pay $100,000 to resolve HIPAA violation charges. OCR also has taken HIPAA enforcement actions against a broad range of other Covered Entities to redress HIPAA violations or other compliance concerns. To review examples of these other actions, see here. While not resulting in the significant payments involved in CVS or Providence, all Covered Entities involved in these and other enforcement actions or investigations have incurred significant legal and other defense costs, loss of community trust, or both.

In addition to these HIPAA-specific exposures, wrongful use, access or disclosure of medical information also can give rise to liability for health plans and other Covered Entities, business associates, employees and other members of their workforce and others improperly using, accessing or disclosing protected health information. Federal and state prosecutions may and increasingly do criminally prosecute individuals for improperly accessing or using medical or other personal information under a variety of other federal or state laws . See e.g., Cybercrime & Identity Theft: Health Information Security Beyond HIPAA; NY AG Cuomo Announcement of 1st Settlement For Violation of NY Security Breach Notification Law; Woman Who Revealed AIDs Info Gets A Year. Additionally, State courts also increasingly are permitting individuals harmed by HIPAA violations to use HIPAA as the foundation of state law duties used to maintain state negligence, invasion of privacy, retaliation or other claims for damages. Read more here.

State Civil Lawsuits

Meanwhile, disgruntled employees or other business partners also increasingly raise alleged HIPAA misconduct as a basis of their legal complaints. For instance, private plaintiffs employed by Covered Entities also are increasingly pointing to HIPAA as the basis for their retaliation or wrongful discharge claims. See, e.g., Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim. Coupled with the HITECH Act changes, these and other enforcement actions signal growing potential hazards for Covered Entities and their business associates that fail to properly manage their HIPAA compliance obligations and risks.

Given these and other developments, Covered Entities and their business associates generally should resist the temptation to underestimate their potential HIPAA exposure for a variety of reasons. In fact, a number of factors demonstrate that the risks are significant and growing for Covered Entities, business associates and others that breach HIPAA’s mandates or otherwise inappropriately access protected health information.

Covered Entities & Business Associates Urged To Act Promptly To Manage Expanded HIPAA Risks & Obligations

As a consequence of these collective HITECH Act changes and growing HIPAA-related and other exposures, Covered Entities, their business associates and business associates generally will find it necessary or advisable among other things to:

Conduct well-documented due diligence within the scope of attorney-client privilege on their own practices and procedures;
Review the adequacy of the practices, policies and procedures of the Covered Entities, business associates, and others that may come into contact with protected health information;;
Renegotiate their service provider agreements to detail the specific compliance obligations of each party relating to for auditing compliance, investigating potential breaches; providing required breach notifications; specify leadership and required cooperation in the event of a breach, charge, or other concern; indemnification and other liability allocations; and other related matters;
Update policies, privacy and other notices, practices, procedures, training and other practices as needed to promote compliance and defensibility;
Conduct well-documented training as necessary to ensure that business associates and other members of the Covered Entity’s workforce understand and are prepared to comply with the expanded requirements of HIPAA, can detect potential breaches or other compliance concerns, and understand and are prepared to follow appropriate procedures for reported suspected violations; and
Pursue appropriate liability and other protection as appropriate to improve their ability to demonstrate both their commitment to compliance and their realistic efforts to ensure that these commitments are both appropriately documented on paper and operationalized in performance.

As part of these compliance and risk management efforts, most Covered Entities and their business associates will find it advisable to devote significant attention to the business associate relationship and its associated business associate agreements. Proper management of the expanded compliance obligations and liability exposures created by the HITECH Act generally will necessitate that Covered Entities and their business associates focus significant attention on the reworking of their operating and contractual relationships including the definition of detailed procedures for monitoring, reporting, investigating, and resolving potential breaches or other compliance concerns.

Even before the impending HIPAA changes scheduled to take effect on February 17, 2010, a strong need for more detailed contracting and planning of these relationships already existed. Since the enactment of HIPAA, the practice of many Covered Entities and their business associates of appending generic “business associate” representations onto existing services contracts without specific tailoring and planning has created undesirable ambiguities in these agreements. Further updating and tailoring of these and other provisions of services agreements has become even more important over the past year in light of the new breach notification mandates that took effect under the HITECH Act in September, 2009, changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, and the impending extension by the HITECH Act to business associates of direct liability for compliance with HIPAA scheduled to occur on February 17, 2010.

These and other stepped up oversight and enforcement activities make it critical that all Covered Entities and their business associates update their policies and practices, conduct training, tighten their compliance and data breach monitoring processes, strengthen their internal controls and documentation, and take other steps to prepare to defend their actions under the newly strengthened Privacy Rules. Covered Entities and their business associates more than ever must ensure their ability to demonstrate to federal regulators the effectiveness of their HIPAA compliance efforts by both adopting the written policies and procedures required by HIPAA and continuously monitoring and administering these safeguards. Covered Entities should consider reviewing the adequacy of their current HIPAA Privacy and Security compliance practices taking into consideration the Corrective Action Plan, published OCR noncompliance and enforcement statistics, their own and reports of other security and privacy breaches and near misses, and other developments to determine if additional steps are necessary or advisable.

For Assistance With Compliance Or Other Concerns

If your organization need advice or assistance in reviewing, updating, administering or defending its HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting the author of this article, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail here.

Ms. Stamer is nationally known for her work, training and presentations, and publications on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts.

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 22 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

Other Recent Developments

If you found this information of interest, you also may be interested in information about upcoming programs to be presented by Ms. Stamer, acquiring a copy of a recording or materials from previous programs she has presented, or arranging training for your organization. For more information about these opportunities, contact Ms. Stamer directly.

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

Curran Tomko Tarski LLP Can Help

If your organization need advice or assistance in reviewing, updating, administering or defending its HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

A widely published author and speaker on HIPAA and other employee benefit and human resources related matters, Ms. Stamer has extensive experience advising health plans, their employer and other sponsors, health insurers, TPAs and other business associates and others about HIPAA and other health plan and privacy matters. Currently serving as both Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and as an ABA Joint Committee on Employee Benefits Council representative and Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has more than 23 years experience assisting employers, insurers, plan administrators and fiduciaries and others to design, implement, draft and administer health and other employee benefit plans and to defend audits, litigation or other disputes by private parties, the IRS, Department of Labor, Office of Civil Rights, Medicare, state insurance regulators and other federal and state regulators. A nationally recognized author and lecturer, 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.

Comments Off on Privacy Rule Changes & Posting of Breach Notices On OCR Website Signal New Enforcement Risks For Health Plans, Their Sponsors & Business Associates | Corporate Compliance, Data Security, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Privacy, Risk Management, Wellness Programs | Tagged: Corporate Compliance, Employee Benefits, Employer, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Medical Coverage, Privacy, Risk Management | Permalink
Posted by Cynthia Marcotte Stamer

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.

Comments Off on Stamer To Present “2010 Health Plan Checkup” At Annual DFW ISCEBS Employee Benefits Fundamentals Workshop | ARRA, CHIP, COBRA, COBRA Subsidy, Employee Benefits, Employers, ERISA, Excise Tax, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Medicare Part D, Mental Health, Mental Health Parity, Prescription Drugs, Stimulus Bill, Tax, Wellness, Wellness Programs | Tagged: COBRA, Disability Discrimination, Disease Management, Employer, Employers, Employment, ERISA, Health Care Reform, Health Insurance, Health Plans, HIPAA, Human Resources, Insurance, Insurer, Internal Controls, Managed Care, Medical Coverage, Military Leave, Premium Subsidy, Privacy, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Health Plans & Business Associates Face 2/17 Deadline To Update Policies, Contracts & Procedures For HIPAA Privacy Rule Changes

February 15, 2010

Connecticut AG Lawsuit Highlights Expanding Civil Damage Exposure Risks Of Noncompliance

By Cynthia Marcotte Stamer

By Wednesday, February 17, 2010, employer and other health plans and health insurers (“covered entities”) and service providers performing functions on behalf of these entities (“business associates”) must begin complying with tighter federal requirements for the use, access, protection and disclosure of protected health information under Privacy & Security Standards of the Health Insurance Portability & Accountability Act (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH Act). The changes scheduled to take effect February 17, 2010 are likely to require that health plans and their business associates update their written policies, operational procedures, privacy notices and business associate agreements in several respects.

While the HITECH Act gave covered entities and business associates a year to complete the necessary arrangements to comply with these impending HITECH Act changes, many health plans and business associates have not completed the necessary arrangements despite expanding liability exposures that can result from noncompliance. To mitigate these exposures, covered entities and their business associates should act quickly both to update their services agreements, plans and policies, practices, and procedures, and to implement the training, oversight, and other management procedures necessary to comply with the HITECH Act changes and to mitigate other HIPAA risks.

2/17/10 Deadline To Comply With HITECH Act HIPAA Amendments

On February 17, 2010, health plans and other covered entities and their business associates will become subject to the latest to take effect in a series of amendments to the HIPAA enacted under the HITEC Act. The new rules are part of a broader series of changes to HIPAA made by the HITECH Act that collectively both significantly expand the obligations of covered entities and their business associates to regarding the use, protection and disclosure of protected health information and the liability exposures that can result when covered entities or business associates violate these requirements.

The changes scheduled to take effect February 17, 2010 are likely to require that health plans and their business associates update their written policies, operational procedures, privacy notices and business associate agreements in several respects. For instance, effective February 17, 2010, the HITECH Act generally requires that covered entities and their business associates revise their written privacy policies, privacy notices and operating procedures:

To meet expanded requirements to honor individual’s requests for special restrictions on uses and disclosures of protected health information to health plans for payment purposes
To restrict protected health information disclosures to the minimum necessary required to accomplish otherwise allowable purpose;
To comply with new rules that require that the covered entity and its business associates treat any use, access or disclosure of any protected health information made for purposes of making communications about products or services as made for marketing, rather than operational, purposes which are prohibited by HIPAA except where HIPAA’s requirements are met;
To comply with new restrictions on certain fundraising communications made for operational purposes including expanded obligations to allow recipients to opt out of further fundraising communications;
To prohibit covered entities or business associates from selling protected health information without meeting the amended requirements of HIPAA that a valid HIPAA authorization from the subject of the information and specific reassurances from the purchaser concerning its subsequent use of the protected health information except as otherwise permitted by HIPAA;
To take into account these tightened restrictions on the use, access or disclosure of protected health information for purposes of complying with new HITECH Act breach notification requirements that took effect in September, 2009, which apply when a covered entity or its business associate knows or should know a breach of “unsecured protected health information” has occurred and for purposes of making the necessary changes in written policies and business associate agreements, training and operational procedures necessary to comply with these rules;
To directly require business associates comply with HIPAA’s requirements in the same manner as other covered entities and make it necessary or advisable that that service provider agreements between health plans and business associates be updated to reflect these and other changes to HIPAA; and
To implement the necessary written policy changes, notification updates, business associate agreement amendments, training, management oversight and other procedural changes necessary to demonstrate fulfillment with these requirements.

Noncompliance with these and other HIPAA requirements subjects covered entities and business associates to civil penalties, criminal prosecution, civil damage awards under lawsuits brought by state attorneys general, and other legal remedies. In addition, timely update written policies, procedures, business associate agreements, training and documentation is imperative in order for covered entities and their business associates to fulfill their breach notification obligations under new rules enacted as part of the HITECH Act.

Under the HITECH Act, health plans and other covered entities and their business associates have been obligated since September 23, 2009 to notify individuals who are the subject of protected health information, the Department of Health & Human Services and in some cases the media if and when a breach of “unsecured protected health information occurs. Failing to timely update written policies, procedures and training increases the likelihood that health plans, other covered entities or business associates will be obligated to provide breach notifications under these new rules, in addition to their otherwise applicable exposures under HIPAA.

HIPAA Enforcement & Liability Exposures Real and Rising

Health plans and other covered entities, their business associates and others involved in health plan design and operations generally should resist the temptation to underestimate their potential HIPAA exposure based on the limited enforcement of HIPAA by the Office of Civil Rights between 2003 and 2009 for a variety of reasons.

First, the changes taking effect on February 17, 2010 follow the implementation changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, when President Obama signed the HITECH Act into law and the new breach notification requirements added by the HITECH Act that took effect on September 23, 2009. The HITECH Act amendments to HIPAA’s remedies significantly increase the risk that health plans and other covered entities and their business associates will face civil lawsuits, civil or criminal penalties or other consequences for violating HIPAA.

The expanded risks stem in part from the HITECH Act’s amendments to HIPAA’s remedy provisions. Among other things, the HITECH Act amended HIPAA to:

Allow a State Attorney General to sue health plans or other covered entities, business associates or both that harm state citizens by committing HIPAA violations after February 16, 2009;
Expand the mandate by the Office of Civil Rights to investigate violations and audit compliance with HIPAA;
Require Office of Civil Rights to impose civil sanctions against health plans and other covered entities and their business associates involved in violations of HIPAA in accordance with tightened standards added to HIPAA by the HITECH Act;
Revise the criminal sanctions that the Department of Justice can seek against health plans and other covered entities, their business associates and others for violations of HIPAA;
Amend HIPAA to make clear that HIPAA’s criminal sanctions also can imposed on business associates, workforce members and other persons that improperly use, access and disclose protected health information in violation of HIPAA.

A HIPAA civil lawsuit filed on January 13, 2010 demonstrates the willingness of at least some states to exercise the new authority created by the HITECH Act on February 17, 2009 to sue covered entities and business associates that violate HIPAA for civil damages.

The HITECH Act empowers a state attorney general to sue covered entities or business associates engaging in HIPAA violations that harms citizens of the state for statutory damages equal to the sum of the number of violations multiplied by 100 up to a maximum of $25,000 per calendar year plus attorneys fees and costs

Even before the HITECH Act amendments, however, the Office of Civil Rights and Department of Justice already were stepping up HIPAA investigation and enforcement. The Department of Justice has obtained a variety of criminal convictions against violators of HIPAA. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information. Meanwhile, the Office of Civil Rights in February, 2009 announced that CVS Pharmacies, Inc. would pay $2.25 million to resolve HIPAA charges. This announcement followed the Office of Civil Rights announcement in July, 2008 that Providence Health Care would pay $100,000 to resolve HIPAA violation charges. While not resulting in the significant payments involved in CVS or Providence, the Office of Civil Rights also taken HIPAA enforcement actions against a broad range of other covered entities to redress HIPAA violations or other compliance concerns. To review examples of these other actions, see here.

Along side these governmental actions, state courts also increasingly are willing to allow individual plaintiffs to rely on violations of HIPAA as the basis for bringing state privacy, retaliation or other actions. While prior to the recent HITECH Act amendments, federal courts had ruled that private plaintiffs could not sue under HIPAA for damages they incurred from a covered entity’s violation of HIPAA, state courts have allowed private plaintiff’s to use the obligations imposed by HIPAA as the basis of a covered entity’s duty for purposes of certain state law lawsuits. In Sorensen v. Barbuto, 143 P.3d 295 (Utah Ct. App. 2006), for example, a Utah appeals court ruled a private plaintiff could use HIPAA standards to establish that a physician owed a duty of confidentiality to his patients for purposes of maintaining a state law damages claim. Similarly, the Court in Acosta v. Byrum, 638 S.E. 2d 246 (N.C. Ct. App. 2006) ruled that a plaintiff could use HIPAA to establish the “standard of care” in a negligence lawsuit. Meanwhile, private plaintiffs employed by covered entities also are increasingly pointing to HIPAA as the basis for their retaliation claims. See, e.g., Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim. Coupled with the HITECH Act changes, these and other enforcement actions signal growing potential hazards for covered entities and their business associates that fail to properly manage their HIPAA compliance obligations and risks.

Health Plans & Business Associates Should Take Timely Action To Comply & Manage Risks

As a consequence of these collective HITECH Act changes and growing HIPAA-related exposures, both health plans and business associates generally will find it necessary or advisable among other things to:

Conduct well-documented due diligence on each other’s practices and procedures to improve their ability to demonstrate both their commitment to compliance and their realistic efforts to ensure that these commitments are operationalized in performance;
Renegotiate their service provider agreements to detail the specific compliance obligations of each party relating to for auditing compliance, investigating potential breaches; providing required breach notifications; specify leadership and required cooperation in the event of a breach, charge, or other concern; indemnification and other liability allocations; and other related matters; and
Pursue appropriate liability and other protection as appropriate.

As part of these compliance and risk management efforts, most covered entities and their business associates will find it advisable to devote significant attention to the business associate relationship and its associated business associate agreements.

Proper management of the expanded compliance obligations and liability exposures created by the HITECH Act generally will necessitate that health plans and other covered entities and their business associates focus significant attention on the reworking of their operating and contractual relationships.

Further updating and tailoring of these and other provisions of services agreements has become even more important over the past year in light of the new breach notification mandates that took effect under the HITECH Act in September, 2009, changes to HIPAA’s civil and criminal sanctions that took effect on February 17, 2009, and the impending extension by the HITECH Act to business associates of direct liability for compliance with HIPAA scheduled to occur on February 17, 2010.

Given these changes and the associated obligations and risks, both health plans and other covered entities and their business associates generally should act quickly to manage their own compliance and to minimize exposures that may result from the other’s compliance deficiencies. As part of these efforts, both covered entities and their business associates generally should review and tighten business associate and other service agreement provisions to provide for more specific and comprehensive HIPAA-related contractual assurances, as well as improved cooperation, coordination, management and oversight.

Curran Tomko Tarski LLP Can Help

If your organization need advice or assistance in reviewing, updating, administering or defending its HIPAA or other privacy policies, practices, business associate or other agreements, notices or other related activities, consider contacting Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer.

A widely published author and speaker on HIPAA and other related matter, Ms. Stamer has extensive experience advising health plans, their employer and other sponsors, health insurers, TPAs and other business associates and others about HIPAA and other health plan and privacy matters. Currently serving as both Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and as an ABA Joint Committee on Employee Benefits Council representative and Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has more than 23 years experience assisting employers, insurers, plan administrators and fiduciaries and others to design, implement, draft and administer health and other employee benefit plans and to defend audits, litigation or other disputes by private parties, the IRS, Department of Labor, Office of Civil Rights, Medicare, state insurance regulators and other federal and state regulators. As part of this work, she regularly assists clients to review and update policies, practices, contracts, notices and procedures to comply with HIPAA and other requirements. A nationally recognized author and lecturer, 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

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

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Posted by Cynthia Marcotte Stamer

Inapplicability of HIPAA Privacy To Disability Insurer Not License To Impose Unreasonable Claims Requirements

February 8, 2010

By Cynthia Marcotte Stamer

While finding the Privacy Standards imposed by the Health Insurance Portability & Accountability Act (HIPAA) inapplicable to disability insurers, a recent Louisiana Court of Appeals nevertheless ruled that the insurer was not entitled to dismissal of the lawsuit challenging the denial of disability benefits brought by a state employee for failure to meet proof of loss requirements based on his failure to sign insurer required medical authorization. Disability insurers and plan fiduciaries should heed the decision as a reminder that exemption from HIPAA does not amount to a license to impose unreasonable proof of loss or requirements inconsistent with a reasonable reading of the terms of the applicable plan or policy, or other applicable regulations.

Harris v. Metropolitan Life Ins. Co., — So.3d —-, 2010 WL 415262, 2009-0034 (La.App. 1 Cir. 2/5/10), involved a lawsuit challenging the continuing refusal of Metropolitan Life Insurance to and its designates to approve the disability benefit claim of Louisiana Supreme Court employee Jack Harris. Metropolitan repeatedly asked insisted that Mr. Harris submit to a physical examination and sign various medical and other authorizations including an “Attending Physician’s Statement” and an “Employee Authorization,” and sign certain other documents. While Mr. Harris sent the “Attending Physician’s Statement” to his treating physician, he declined to sign the Employee Authorization and certain other subsequently requested consents on the grounds of HIPAA. While he provided to a HIPAA-compliant authorizations to his medical providers to release all medical records, medical opinions, and medical reports relating to Mr. Harris’ past and current treatment for purposes of the claim, he declined and instead filed suit contending that the information and releases already provided met the proof of loss requirements of the policy.

Upon motion of Metropolitan, the trial court found that Mr. Harris’ failure to sign the authorizations and submit to the medical examination required by Metropolitan rendered his claim “premature.” Upon appeal, however, the Court of Appeals overruled this determination. While the Court of Appeals agreed with the trial court that the special authorization rules imposed by HIPAA did not apply to a disability insurer such as Metropolitan, it also ruled that its right to require a claimant to sign authorizations, submit to medical examinations or meet other proof of loss conditions must be reasonable in light of the terms of the policy. Accordingly, although the Court of Appeals agreed that the proof of loss and other provisions of the disability policy authorized Metropolitan to require a disability claimant to undergo an independent medical examination “as often as reasonably required,” the Court of Appeals ruled that Mr. Harris’ submission to the independent medical examination was not a condition precedent to the initiation of litigation by an insured and that the “medical authorization” demanded by Metropolitan was far broader than what the policy allowed as reasonably required for the independent medical examination. Accordingly, the Court of Appeals overruled the trial court’s dismissal of the disability claim and remanded the action to the trial court for hearing.

While affirming that the HIPAA Privacy Standards don’t directly apply to disability insurers, the Harris decision also demonstrates that disability insurers should not over-estimate the effect of this exemption. While HIPAA may not apply, disability insurers generally remain bound by the reasonable construction of their policy terms, taking into account otherwise applicable laws and regulations. Accordingly, disability and other HIPAA-exempt insurers and plans should not confuse the inapplicability of the HIPAA authorization requirements for carte blanche to impose unreasonable authorization or other proof of loss requirements inconsistent with their policy terms.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employee benefit, 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 Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer has more than 22 years experience advising and assisting employers, employee benefit plan and their fiduciaries, insurers, administrators, and others about policy and plan, process, and product design, administration, documentation, risk management and defense under ERISA, COBRA, HIPAA, labor and employment, tax, state banking and insurance, and other laws. Her work includes extensive experience advising and defending employee benefit plan fiduciaries and insurers about the investigation of disability, health and other claims and appeals. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks, writes and conducts training 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.

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Posted by Cynthia Marcotte Stamer

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

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

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Posted by Cynthia Marcotte Stamer

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.

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Posted by Cynthia Marcotte Stamer

New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans

January 14, 2010

By Cynthia Marcotte Stamer

Regulations published by the Department of Labor today (January 14, 2010) offer employers the opportunity to know their deposit of employee contributions and other amounts withheld from wages or otherwise received from employees with a pension, profit-sharing, health, or other welfare benefit plan is timely for purposes of the fiduciary responsibility requirements of the Employee Retirement Income Security Act (“ERISA”) and the prohibited transaction rules of the Internal Revenue Code (the “Code”) by depositing those amounts with the plan within the seven day period specified in a new safe harbor included in the Regulations.

Certainty about the timeliness of these deposits is important, as mishandling of these employee contributions, participant loan repayments or other employee benefit plan assets frequently triggers judgments, fines and penalties against companies that sponsor employee benefit plans as well as owners, board members, or other members of management. See Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Leaders. Consequently, businesses sponsoring employee benefit programs and owners, officers, directors or other members of management with authority over or responsibility for the handling or application of amounts withheld or collected from employees as employee contributions or plan loans should make arrangements for these amounts to be properly handled and timely deposited with the appropriate employee benefit plan in accordance with these new plan asset regulations.

Title I of ERISA generally requires that employee benefit “plan assets” be held in trust, prudently handled and invested, used for the exclusive benefit of the plan and its participants, and otherwise used and administered in accordance with ERISA’s fiduciary responsibility rules. Meanwhile, the use of “plan assets” of certain employee benefit plans in a manner prohibited by the Code’s prohibited transaction rules also may trigger excise taxes and other penalties.

For purposes of both ERISA and the Code, Labor Department Regulation § 2510.3-102, specifies that amounts (other than union dues) that an employer withholds from wages or otherwise collects from employees as employee contributions or loan repayments to an employee benefit plan generally become plan assets subject to these fiduciary responsibility rules “as of the earliest date on which such contributions or repayments can reasonably be segregated from the employer’s general assets.” Since employers, business owners, members of management can risk exposure to damages, administrative penalties and/or excise taxes, knowing when amounts collected from employees are considered plan assets is a critical first step to managing these risks.

Unfortunately, the subjectivity of this standard leaves room for much uncertainty and debate about the precise deadline by which employee contributions, plan loans and other amounts from employees must be received by the plan. The subjectivity inherent in this standard leaves many employers uncertain about the adequacy of their compliance efforts and frequently fuels debate among plans, debtors, creditors, regulators or others about the when amounts earmarked to be withheld from employee wages cease to be assets of the debtor employer and become plan assets.

To mitigate debate and uncertainty about the timing of these events, Labor Department Regulation § 2510.3-102 as published in final form today includes a new “safe harbor” rule for plans with fewer than 100 participants at the beginning of the plan year. Under the safe harbor, employee contributions, plan loans and other amounts withheld from wages or received from employees for payment to an employee benefit plan are treated as treated timely paid to the plan if deposited with the plan not later than the 7th business day following the day on which such amount is received by the employer (in the case of amounts that a participant or beneficiary pays to an employer), or the 7th business day following the day on which such amount would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant’s wages). While this safe harbor assures employers and others that withhold from wages or receive employee contributions or participant loan payments owing to less than 100 participant plans that their deposit will be considered timely if received by the plan within seven days, the plan asset regulations leave open that deposit with the plan more than 7 after receipt might still be considered timely deposit with the plan under certain circumstance.

Where deposit with the plan is not made within the seven-day period established by the safe harbor, the plan asset rules continue to leave room for great subjectivity in the determination of the deadline for deposit. In addition to the seven-day safe harbor, the plan asset regulations clearly establish bright-line deadlines after which the deposit of employee contribution or plan loan amounts always will be considered untimely. Thus, the plan asset rules provide that the deadline for depositing employee contributions and plan loans with the plan in no event ever extends beyond the applicable of the following dates (the “Latest Date”)

For pension plans, the 15th business day of the month following the month in which the employee contribution or participant loan repayment amounts are withheld or received by the employer;
With respect to a SIMPLE plan that involves SIMPLE IRAs the 30th calendar day following the month in which the participant contribution amounts would otherwise have been payable to the participant in cash; and
For health and other welfare benefit plans, 90 days from the date on which the employee contribution is withheld or received by the employer.

In all other instances, the plan asset regulations leave open to uncertainty and debate when and if an employer’s deposit of employee contributions and plan loans more than seven-days after payroll deduction or receipt but before the Latest Date will qualify as timely for purposes of ERISA Title I or the Code’s prohibited transaction provisions.

Companies and owners, officers and directors of businesses that harm plans by failing to ensure that these amounts are timely deposited into an employee benefit plan or otherwise are involved in the mishandling of these funds frequently become subject to prosecution, damage awards, civil penalties and excise taxes. To mitigate potential exposure to these risks, businesses and leaders of businesses that withhold from wages or collect employee contributions or plan loan payments from employees should make arrangements to ensure that these amounts timely are deposited with the appropriate plans and otherwise handled appropriately in accordance with ERISA and the Code.

If your business or employee benefit plan needs assistance evaluating or responding to these or other employee benefit, or other employment, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.

Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. She is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with these and other applicable federal regulations as well as well as advising and defending employers and others against tax, employee benefit, 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 also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

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

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

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Posted by Cynthia Marcotte Stamer

Stamer Speaks To CPAs About “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” January 12, 2010

December 28, 2009

Accountants and their clients face increasing regulatory and business pressures to protect the sensitive business and personal information collected and maintained in the course of their operation to minimize their exposure to personal identity theft and other cybercrime scams by employees, business partners and others. Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer will speak about “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” to members of the Dallas CPA Society on January 12, 2010 beginning at 2:00 p.m.

Part of the Dallas CPA Society Member Appreciation CPE Series Meeting, Ms. Stamer’s presentation will be part of four hours of free CPE training to be provided at a program open to members only at the Hilton Lincoln Centre Hotel located at 5410 LBJ Freeway, Dallas TX 75240 from 1 p.m. to 4:50 p.m. Central Time. (Parking at the facility costs $5.00). To register or for additional information, see here.

If you need help responding to these developments or other legislative, regulatory or enforcement concerns, Curran Tomko Tarski LLP can help. Curran Tomko and Tarski LLP and its attorneys have significant experience assisting businesses and business leaders to manage and defend privacy, data security, tax employee benefit, employment, health care, environmental, safety, securities and other compliance and risk management concerns.

Curran Tomko Tarksi LLP Partner Cynthia Marcotte Stamer has more than 22 years experience helping businesses to use the law, process and technology to manage people and processes, and to manage technology, privacy and data security, employment and other legal and operational risks affecting their businesses. Author of “Privacy & Securities Standards-A Brief Nutshell,” “Privacy Invasions of Medical Care-An Emerging Perspective,” and “E-Health Business and Transactional Law Other Liability-Tort and Regulatory;” published by The Bureau of National Affairs, Inc., and many other publications, Ms. Stamer has extensive experience advising a accounting firms, law firms, banks and financial services organizations, insurers, consultants, health plans, health care providers and others about HIPAA, FACTA, and other privacy, trade secret and other information security and data breach risk management and compliance concerns. Ms Stamer also speaks, publishes and provides public policy input extensively on data security, technology and other internal controls and risk management matters. Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Ms. Stamer also is Board Certified in Labor & Employment law. 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.

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

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Posted by Cynthia Marcotte Stamer

3 Articles On Employee Benefit Risk Management Published In ABA RPTE E-Report

December 23, 2009

Curran Tomko Tarski LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer the author of three articles in the December 2009 Issue of the American Bar Association Real Property Probate & Trust Section E-Report:

Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Cynthia Marcotte Stamer is nationally and internationally recognized for her work assisting businesses, employee benefit plan fiduciaries and vendors, insurers, administrative services providers, governments, and other entities to develop administer and defend cost-effective employee benefit other human resources programs, policies and procedures to meet their budgetary, risk management and compliance and other objectives. Board certified in Labor & Employment law, Ms. Stamer applies her extensive experience regarding employment, employee benefit, and other related laws to assists clients in a wide range of business and litigation contexts. The co-founder of the Solutions Law Consortium, Ms. Stamer, also is the publisher of Solutions Law HR & Benefits Update. She speaks and writes extensively about employee benefits and other human resources, compensation and internal controls matters.

If your organization or employee benefit plan needs assistance with employee benefits, labor and employment or other internal controls and risk management matters, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or another Curran Tomko Tarski, LLP attorney of your choice. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

Other Helpful Resources & Information

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 CTT HR & Employee Benefits Update distributions in blog form via RSS feed here. You also may be interested in staying abreast of emerging internal controls and compliance challenges by reviewing and registering for our Corporate Compliance, Risk Management & Internal Controls distributions. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.com.

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

Other Information & Resources

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

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
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
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
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

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

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Posted by Cynthia Marcotte Stamer

President Signs Law Extending & Expanding Temporary AARA COBRA Subsidy Requirements For Group Health Plans

December 22, 2009

By Cynthia Marcotte Stamer

Employer and union sponsored group health plans, their sponsors and administrators must act quickly to comply with the extension and expansion of temporary “COBRA Subsidy Rules” for “assistance eligible individuals” originally added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“AARA”) last February.

The Department of Defense Appropriations Act (H.R. 3326) signed into law by President Obama on December 19, 2009 extended the period that employer and union-sponsored group health plans must allow employees and members of their family that lose group health plan coverage due to an involuntary employment loss to continue their group medical coverage under the reduced premium and other temporary ARRA COBRA Subsidy Rules and lengthened the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual.

Original COBRA Subsidy Rules

As originally enacted, the ARRA COBRA Subsidy Rules limited the COBRA premium that a COBRA-covered group health plan could charge a COBRA-eligible employee or dependent whose group health plan eligibility ended due to an involuntary employment loss between September 1, 2008 and December 31, 2009 (“assistance eligible individual”) to 35% of the otherwise applicable COBRA premium (the “Reduced ARRA Premium”) for a period of up to 9 months (the “Subsidy Period”). ARRA dictated that employers sponsoring these group health plans must pay the remaining 65% of the COBRA premium (the “COBRA Subsidy”) for the assistance eligible individual during the Subsidy Period, but allowed employers to seek reimbursement by claiming a payroll tax credit for these COBRA Subsidy payments by complying with applicable IRS procedures. AARA also mandated that group health plans offering a choice of coverage options offer assistance eligible individuals the option to switch coverage options and required group health plans to notify assistance eligible individuals of the special COBRA Subsidy Rules.

H.R. 3326 COBRA Subsidy Rules Extension

As signed into law on December 19, 2009, H.R. 3326:

Extends the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual for an additional two months (from December 31, 2009 to February 28, 2010);
Adds an additional six months (from 9 to 15 months) the Subsidy Period during which an assistance eligible individual experiencing an involuntary loss of employment between September 1, 2008 and February 28, 2010 is entitled to pay the Reduced AARA Premium;
Requires group health plans to notify assistance eligible individuals of the extension; and
Requires group health plans to allow additional time for assistance eligible individuals who had exhausted their original 9-month Subsidy Period before H.R. 3326 extended the Subsidy Period to 15 months to pay the Reduced AARA Premium related to the extension.

Group health plans, their employer or union sponsors, administrators, insurers and service providers will need to act quickly to prepare and provider required updated notifications to assistance eligible individuals of these extended eligibility periods and their resulting rights, and otherwise update their plan documents, procedures, and COBRA notifications in light of these new rules.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. The author of the “Health Plan Eligibility Toolkit,” Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with COBRA and other applicable federal regulations 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.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 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.

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Posted by Cynthia Marcotte Stamer

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

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E) PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take EffectBusinesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures OSHA Final Rule Updates OSHA Personal Protective Equipment Standards “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

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Posted by Cynthia Marcotte Stamer

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 here. FLU.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

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

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Posted by Cynthia Marcotte Stamer

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.

Other Information & Resources

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

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Posted by Cynthia Marcotte Stamer

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

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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.

Comments Off on Senate Finance Chairman Baucus Introduces New Health Care Reform Bill | Data Security, Employee Benefits, Employers, ERISA, Health Care Reform, Health Plans, HIPAA, Human Resources, I-9, Immigration, Income Tax, Tax, Wellness | Tagged: America's Healthy Future Act, Baucus, Corporate Compliance, Disease Management, Employee Benefits, Employer, Employment, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, S.1796, Senate Finance Committee, Tax, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

HIT Standards Committee Meets October 14

September 29, 2009

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

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

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

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

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

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

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

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

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

Other Recent Developments

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

For More Information

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

Comments Off on HIT Standards Committee Meets October 14 | Uncategorized | Tagged: EHR, Electronic Medical Records, EMI, Employee Benefits, ERISA, Health Care Reform, Health Insurance, Health IT, Human Resources, Meaningful Use | Permalink
Posted by Cynthia Marcotte Stamer

Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations

September 2, 2009

September 10, 2009 – Noon to 1:30 P.M. Central Time Participate In Person or Via Remote!

Health care providers, health plans, health clearinghouses and their business associates (Covered Entities) must comply with the new “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) by September 23, 2009.

Catch up on what the Breach Rule means for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Thursday, September 10, 2009 from Noon to 1:30 P.M. Central Time for a registration fee of $45.00. Registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For information about registering for this program or other questions here,

The Breach Rule requires Covered Entities to notify affected individuals following a “breach” of “unsecured” protected health information. Just published August 24^th, the Breach Regulation is part of a series of guidance that HHS is issuing to implement new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA). The briefing will cover:

Who must comply, health plans, employers, others?
What your organization must do
How to qualify protected health information as exempt from the breach regulations as “secure” protected health information
What is considered a breach of unsecured protected health information
What steps must a covered entity take if a breach of unsecured protected information happens
What liabilities do covered entities face for non-compliance
What new contractual requirements, policies and procedures Covered Entities and Business Associates will need
How the Breach Regulation, the Privacy Regulation, impending FTC red flag rules and state data breach and privacy rules interrelate
Other recent developments
Practical tips for assessing, planning, moving to and defending compliance
Participant questions
More

About The Presenter

The program will be presented by Curran Tomko and Tarski LLP Health Care & Employee Benefits Practice Leader and Partner Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her work, publications and presentations on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts. Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, a ABA Joint Committee on Employee Benefits Council Representative, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 20 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or another Curran Tomko Tarski LLP Partner of your choice.

Other Helpful Resources & Other Information

If you find this of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review 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 at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

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

Comments Off on Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations | Corporate Compliance, Data Security, Disease Management, Employers, GINA, Health Plans, HIPAA, Human Resources, Insurance, Internal Controls, Privacy, Protected Health Information | Tagged: Corporate Compliance, Employee Benefits, Employer, Employers, Employment, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Internal Controls, Managed Care, Medical Coverage, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

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

August 25, 2009

Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the Americans with Disabilities Act (ADA) “in favor of broad coverage of individuals” do not apply to actions taken before effective date of the ADAAA, January 1, 2009, according to a recent decision of the U.S. Circuit Court of Appeals for the District of Columbia. While the holding provides some comfort for employers in relation to pre-January 1, 2009 actions, employers need to take appropriate steps to mitigate disability claim risks for actions on or after the January 1, 2009 effective date of the ADAAA.

As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

In Lytes v. DC Water and Sewer Authority, D.C. Cir. No. 08-7002 (July 21, 2009), the D.C. Court of Appeals considered and rejected the retroactivity argument made by Lytes in his appeal from a trial court’s finding that he was not disabled under the ADA. As the ADAAA took effect while his action was pending, Lytes sought to convince the Appeals Court to apply the ADAAA amended definition retroactively. Contending that the ADAAA amendment merely clarified the existing law under the ADA, Lytes argued that the Court should apply the broader definition of disability when considering the legality of his termination from employment in 2004.

Rejecting Lytes’ retroactivity argument, the Court of Appeals ruled that the ADAAA amendment of the definition of “disability” under the ADA applies only on a prospective basis based on its finding that Congress had clearly provided that the ADAAA amendments only would apply to post-December 31, 2008 actions. Accordingly, the Court of Appeals affirmed the District Court’s finding that Lytes termination in 2004 did not violate the ADA as then effective as his lack of disabled status under the then-applicable definition of disability meant he was not entitled to accommodation.

In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the Equal Employment Opportunity Commission (EEOC) to update its existing guidance to confirm with the ADAAA Amendments.

Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits. Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).

While the Lytes decision indicates that businesses will not be required to defend pre-2009 actions under the amended disability standards enacted by the ADAAA, businesses should prepare to meet new challenges in defending ADA claims arising from actions taken after December 31, 2008. The ADAAA amendments make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA. Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA. Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment.

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions. For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information. The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA.

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008. Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws. For instance, GINA’s employment related provisions include rules that will:

Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Curran Tomko Tarksi LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer at 214.270.2402.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review 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 at here.

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Posted by Cynthia Marcotte Stamer

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

August 24, 2009

Employer and other health plans, health care providers, health clearinghouses and their business associates must start complying with new federal data breach notification rules on September 23, 2009.

The new “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) published here in today’s Federal Register requires health plans, health care providers, health care clearinghouses and their business associates (Covered Entities) covered under the personal health information privacy and security rules of the Health Insurance Portability & Accountability Act (HIPAA) to notify affected individuals following a “breach” of “unsecured” protected health information.The Breach Regulation is part of a series of guidance that HHS is issuing to implement new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA).

You are invited to catch up on what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9 2009 from Noon to 1:30 P.M. Central Time.

HITECH Act Data Breach and Unsecured PHI Rules

Published in the August 24, 2009 Federal Register, the new Breach Regulation implements the HITECH Act requirement that Covered Entities and their business associates notify affected individuals, the Secretary of HHS, and in some cases, the media, when a breach of “unsecured protected health information” happens and the form, manner, and timing of that notification. Covered Entities must begin complying with the new Breach Regulation on September 23, 2009.

Part of a series of new HHS rules implementing recent changes to HIPAA enacted under the HITECH Act to strengthen existing federally mandates requiring Covered Entities to safeguard protected health information, the Breach Regulation will obligate Covered Entities and business associates to provide certain notifications following a breach of “protected health information” that not secured at the time of the breach through the use of a technology or methodology meeting minimum standards issued by HHS pursuant to other provisions of the HITECH Act.

Under the HITECH Act, the breach notification obligations contained in the Breach Notification only apply to a breach of “unsecured protected health information.” The Breach Regulation exempts breaches of protected health information that qualify as “secured” under separately issued HHS and Federal Trade Commission (FTC) standards for encryption and destruction of protected health information from its breach notification requirements.

For purposes of the HITECH Act, electronic protected health information is considered “unsecured” unless the Covered Entity has satisfied certain minimum standards for the protection of that data established pursuant to the HITECH Act. Earlier this year, HHS and the FTC issued interim rules defining the minimum encryption and destruction technologies and methodologies that Covered Entities must use to render protected health information unusable, unreadable, or indecipherable to unauthorized individuals for purposes of determining when protected health information is “unsecured” for purposes of the HITECH Act. Concurrent with its publication of the Breach Regulation, HHS also released guidance updating and clarifying this previously issued guidance.

Read the Breach Regulation here . To review the HITECH Act Breach Notification Guidance and Request for Information, see here .

Register For September 9, 2009 “HITECH Act Health Data Security & Breach Update”

Interested persons are invited to register here now to learn what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9, 2009 from Noon to 1:30 P.M. Central Time. For a registration fee of $45.00, registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For questions or other information about this program, e-mail here.

Conducted by Curran Tomko and Tarski LLP Partner Cynthia Marcotte Stamer, the briefing will cover:

Who must comply
What your organization must do
How to qualify protected health information as exempt from the breach regulations as “secure” protected health information
What is considered a breach of unsecured protected health information
What steps must a covered entity take if a breach of unsecured protected information happens
What liabilities do covered entities face for non-compliance
What new contractual requirements, policies and procedures Covered Entities and Business Associates will need
How the Breach Regulation, the Privacy Regulation, impending FTC red flag rules and state data breach and privacy rules interrelate
Other recent developments
Practical tips for assessing, planning, moving to and defending compliance
Participant questions
More

About The Presenter

The program will be presented by Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her work, publications and presentations on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts.

Past Chair of the ABA Health Law Section Managed Care & Insurance Section and currently the Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Section and a Council Representative of the ABA Joint Committee On Employee Benefits, Ms. Stamer has more than 20 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or another Curran Tomko Tarski LLP Partner of your choice.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review 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 at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

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Posted by Cynthia Marcotte Stamer

House Democratic Majority Hopes To Iron Out Differences In Key Health Care Reform Legislation During August Recess

August 4, 2009

Democratic Leaders in the House of Representatives plan to hammer out differences three versions of the America’s Affordable Health Choices Act (H.R. 3200) as separately passed by three key House Committees in July before House members return from their August recess in hopes of bringing the agreed to version of H.R. 3200 to the full house in September. Each version of H.R. 3200 would impose significant new obligations, regulations and costs on employers, health insurers and health plans, and employees.

After negotiating a last minute pre-August recess deal with certain Blue Dog Democrat Committee members, the House Energy and Commerce Committee on July 31, 2009 passed its version of H.R. 3200, the America’s Affordable Health Choices Act (H.R. 3200). The version of H.R. 3200 passed by the House Energy and Commerce Committee incorporates a series of amendments to the language of H.R. 3200 as originally introduced. For instance, this version of H.R. 3200 provides incentives for states to adopt certain tort reforms, provides for a public plan option that would reimburse physicians based on negotiated rates rather Medicare rates, and would allow states to offer both state-based heath insurance exchanges and health insurance co-ops. To review H.R. 3200 as amended by the House Energy and Commerce Committee, see here.

The approval by the Energy and Commerce Committee of its version of H.R. 3200 follows the July 17, 2009 approval by the House Ways and Means Committee and Education and Labor Committee of their own versions of H.R. 3200. For details on the version of H.R. 3200 approved by the House Ways and Means Committee, see here. For details on the version of H.R. 3200 approved by the House Education and Labor Committee, see here.

Leading House Democrats have announced their intention to work to resolve differences between these three versions of H.R. 3200 as passed by these Committees during August recess in hopes of bringing the agreed to version of H.R. 3200 to a vote of the full House of Representatives in September.

Meanwhile, House members from both parties also generally are using the August recess as an opportunity to reconnect with local constituents on health care reform and other core issues.

For More Information

The author of this article, Curran Tomko and Tarski LLP Partner Cynthia Marcotte Stamer has extensive experience advising and assisting employers and other health plan sponsors, insurers and others about health benefit and other benefits, human resources and health care matters. The current Chair of the American Bar Association Real Propoerty, Probate & Trust Section Employee Benefit Plans and Other Compensation Committee and former Chair of the ABA Health Law Section Managed Care & Insurance Group, she regularly advises these and other clients about the design, administration, defense and regulation of health benefit, wellness and disease management, managed care, onsight wellness, and other benefit and insurance regulations, legislative and regulatory reforms impacting these and other arrangements, and related matters.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other proposed health care or other regulatory reforms or with other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner.

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Posted by Cynthia Marcotte Stamer

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

August 3, 2009

The Department of Health & Human Services (HHS) today (August 3, 2009) transferred authority for the administration and enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule to the Office for Civil Rights (OCR). Prior to this announcement, responsibility for interpretation and enforcement of the Security Rule rested with the Centers for Medicare & Medicaid Services (CMS). The change reflects the growing seriousness of HHS and others about enforcing federal privacy and data security mandates for health information. HHS anticipates the transfer of authority will eliminate duplication and increase efficiencies in how the department ensures that Americans’ health information privacy is protected.

HHS has the authority for administration and enforcement of the federal standards for health information privacy called for in HIPAA. The Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. OCR has been responsible for enforcement of the Privacy Rule since 2003. The Security Rule specifies a series of administrative, technical, and physical security procedures for covered entities to use to assure the confidentiality of electronic protected health information. The Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009 (ARRA), mandated improved enforcement of the Privacy Rule and the Security Rule.

Through a separate delegation, CMS continues to have authority for administration and enforcement of the HIPAA Administrative Simplification regulations, other than privacy and security of health information.

The transfer of Security Rule enforcement authority comes as guidance about new data breach rules for electronic protected health information is impending. This impending guidance relates to the implementation of new breach notification rules for covered entities and their business associates concerning their obligation to use of technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals, as required by amendments to HIPAA enacted under the Health Information Technology for Economic and Clinical Health (HITECH) Act passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA) last February. OCR officials have stated that they are working to publish the next set of regulations regarding these new breach notifications before the end of August, 2009.

In addition to adding the breach notification requirements, the HITECH Act also tightened the HIPAA mandates in several other respects. Among other things, it amended HIPAA to:

Broaden the applicability of the HIPAA’s Privacy Rules and penalties to include business associates;
Clarify that HIPAA’s criminal sanctions apply to employees or other individuals that wrongfully use or access PHI held by a covered entity;
Increase criminal and civil penalties for HIPAA Privacy Rules violators;
Allow State Attorneys General to bring civil damages actions on behalf of certain state citizens who are victims of HIPAA Privacy and Security Rule violations;
Modify certain HIPAA use and disclosure and accounting requirements and risks;
Prohibits sales of PHI without prior consent;
Tighten certain other HIPAA restrictions on uses or disclosures;
Tighten certain HIPAA accounting for disclosure requirements;
Clarify the definition of health care operations to excludes certain promotional communications; and
Expand the Business Associates Agreement Requirements.

These and other developments make it imperative HIPAA covered entities and their business associates take prompt action to immediately review and update their data security and privacy practices to guard against growing liability exposures under HIPAA and other federal and state laws. Covered entities must update policies and practices to avoid these growing liabilities. Business associates that have not already done so also must appoint privacy officers and adopt and implement privacy and data security policies and procedures fully compliant with HIPAA and other applicable federal and state rules, including amendments enacted as part of the American Recovery and Reinvestment Act of 2009 signed into law on February 17, 2009.

For more information about today’s announcement, see here. See here for the initial guidance and request for comments issued by HHS regarding these new security standards.

Chair Elect of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Cynthia Marcotte Stamer is nationally and internationally recognized for her work assisting businesses, employee benefit plan fiduciaries and vendors, governments, and other entities to develop administer and defend cost-effective employee benefit other human resources programs, policies and procedures to meet their budgetary, risk management and compliance and other objectives. Board certified in Labor & Employment law, Ms. Stamer applies her extensive experience regarding employment, employee benefit, tax, privacy and data security and other related laws to assists clients in a wide range of business and litigation contexts. The co-founder of the Solutions Law Consortium, Ms. Stamer also makes extensive use of cloud computing and other technology in her own practice and provides input to human resources and other clients others about the use of these and other technology tools to manage employee benefit, human resources, internal controls and other operations. In connection with this work, Ms. Stamer has works, writes and consults extensively with a diverse range of clients about the development, use technology and other processes to streamline health and other benefit, payroll and other human resources, employee benefits, tax, compliance and other business processes and the management and protection of sensitive personal and other information and data.

If your organization or employee benefit plan needs assistance managing or evaluating options or responsibilities associated with the use of technology and data in connection with its health care, employee benefits, tax or other operation or other human resources, employee benefits or and compliance concerns, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

More Information & Resources

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

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Posted by Cynthia Marcotte Stamer

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

August 1, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Blue Dog Members and their telephone numbers are :

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

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

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

Curran Tomko Tarski LLP Can Help

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

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

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

More Information & Resources

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

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Posted by Cynthia Marcotte Stamer

Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

July 22, 2009

Businesses that fire or discipline employees increasingly face retaliation claims by disgruntled workers claiming the protection of nondiscrimination and other federal and state whistleblower and anti-retaliation laws.

The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant vigilance to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities. While the decision specifically addressed retaliation under Title VII, the use of similar language in other federal laws regulating business conducting – including those covered by the Federal Sentencing Guidelines – makes it likely that the decision has much broader implications.

Technically, the Crawford decision specifically applied to retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) in the context of a sexual harassment complaint investigation. However, business should anticipate that creative plaintiffs and their legal counsel soon will ask courts to apply the Crawford holding beyond sexual harassment to reach to claims brought by employees claiming injury in retaliation for statements made in relation to investigation of other federal statutes prohibiting retaliation. A host of federal and state employment and other laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain rights legally protected rights. Because many of these statutes use the same or similar language to the anti-retaliation provisions of Title VI, share the same or similar purpose, or both, businesses should anticipate that certain courts will be inclined to view the Crawford rationale, if not its holding, as applicable to retaliation claims under certain of these other federal statutory prohibitions. Accordingly, pending further guidance, most businesses interested in minimizing exposures to retaliation claims will want to design and administer investigations to avoid the impression of illegal retaliation against witnesses in sexual harassment investigations as other investigations where similar anti-retaliation provisions may apply. Accordingly, most U.S. businesses will treat Crawford as having potential implications both in relation to sexual harassment and other investigations under Title VII as well as investigations conducted other federal laws containing similar anti-retaliation provisions.

The Crawford Decision

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

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

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

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

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

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

Other Broader Potential Implications & Lessons From Crawford

Although the report by Ms. Crawford involved her notification to the employer that she too may have been sexually harassed, the implications of the Crawford decision reach more broadly.

Crawford specifically construed the anti-retaliation provisions of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”, or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”. This provision of Title VII and other equal employment opportunity laws, as well as the Family & Medical Leave Act and various other employment laws commonly contain similar prohibitions against an employer or business discriminating against protected persons for opposing unlawful practices or making charges, testifying, assisting or participating in investigation of practices prohibited under the applicable employment law. Consequently, there exists a significant probability that courts will apply the Crawford holding to retaliation claims brought by employees for testimony or other participation in investigation in other equal employment opportunity charges under Title VII and other employment laws.

It also is possible that employees ask the courts to extend the holding of Crawford to retaliation claims brought by employees claiming to have been retaliated against for participating in the investigation of or expressing opposition to illegal practices under a wide range of other statutes. Beyond the employment context, many other federal laws incorporate similar prohibits against employer discrimination against employees for opposing practices made unlawful under their provisions or providing testimony or participating in investigations of potential violations of their provisions. For example, in connection with its criminal prohibition of major fraud against the United States, paragraph (h) of 18 U.S.C § 1031 creates a right for individuals discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by an employer because of lawful acts done by the employee on behalf of the employee or others “in furtherance of a prosecution under this section (including investigation for, initiation of, testimony for, or assistance in such prosecution)” to recover for job and seniority reinstatement, 2 times the amount of back pay, interest, litigation costs and reasonable attorneys fees and other special damages.

Given these similarities, pending further guidance, U.S. businesses generally will want to exercise sensitivity when dealing with employees who express opposition, testify or otherwise participate in investigations or prosecutions of potential violations under Title VII and other federal laws that contain the same or similar anti-retaliation provisions.

Read from this perspective, the Crawford decision highlights the advisability for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint.

Businesses generally should listen carefully when conducting investigations, employee counseling and discipline meetings, and exit interviews with an eye out for the need to investigate potential legal violations, defend against retaliation charges, or both.

Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure, the Crawford decision reminds businesses not to overestimate the protection afforded by the establishment of formal reporting procedures.

Crawford also highlights the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exist interview.

Additionally, businesses also should seek to evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights such as taking a protected leave or the like.

Likewise, as in the defense of other employment claims, Crawford also reflects the value and importance of businesses appropriately documenting performance concerns relating to a specific employee and legitimate business challenges motivating employment actions as they arise, in the event that it subsequently becomes necessary to present evidence of a valid performance or business justification to defend against allegations by an employee claiming to have been discharged or otherwise discriminated against in retaliation for engaging in protected conduct under Title VII or other similar federal anti-retaliation laws.

Finally, businesses should keep in mind the potential value of strong documentation. When seeking to defend against claims of discrimination or retaliation, the strength of the employer’s documentation often can play a significant role in the cost and ease of defense of the claim or charge. Businesses should work to prepare and retain documentation not only of allegations, investigations and determinations regarding both employee performance and discipline, as well as the handling of alleged violations of equal employment opportunity or other laws. Documentation should be prepared and retained on a systematic basis with an eye to strengthening the organization’s ability to prevent and defend against charges that the organization violated the core obligations under the applicable law as well as to defend employment decisions involving employees who may be in a position to assert retaliation claims.

The importance of good investigation and documentation practices takes on particular importance in the current tough economic environment. While retaliation claims have been rising for many years, the recent economic downturn is fueling an increase in the number of employees seeking to claim protection in the tightening economy based on retaliation or other employment law protections. Workforce dissention and changes in personnel also can complicate further the ability to defend these claims just as the Department of Labor and other federal regulators are turning up the enforcement heat. As a result, appropriate investigation and documentation procedures are particularly important in the current environment.

Curran Tomko Tarski LLP Can Help

If your business needs assistance auditing, updating or defending its human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employers and others about compliance with federal and state equal employment opportunity and other labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising ad defending employers against federal and state employment discrimination and other labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on wage and hour and a diverse range of other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years.

More Information & Resources

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

Comments Off on Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision | Corporate Compliance, EEOC, family leave, Human Resources, I-9, Internal Controls, Internal Investigations, medical leave, Risk Management, Sexual Harassment, Tax | Tagged: ADA, Corporate Compliance, Disability Discrimination, Discrimination, Employee Benefits, Employment, Equal Employment Opportunity, ERISA, GINA, Health Insurance, Human Resources, Insurance, Internal Controls, Internal Investigations, Labor, Minimum Wage, Overtime, Retaliation, Risk Management, Sexual Harassment, Whistleblower | Permalink
Posted by Cynthia Marcotte Stamer

Contact House Blue Dog Democrats About Health Care Reform Bill Concerns

July 18, 2009

Individuals concerned about the “American’s Affordable Health Care Choices Act of 2009” health care reform proposal introduced by the House Democratic Leadership earlier this week should target their input on the Democrats in Congress most likely to listen to those concerns. In the House of Representatives, these members likely are the “Blue Dog Democrats” in the House. Read about Blue Dog Democrats here.

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

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

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

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

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

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

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

The Blue Dog Members and their telephone numbers are :

Altmire, Jason (PA-04),(202)225-2565

Arcuri, Mike (NY-24), (202)225-3665

Baca, Joe (CA-43),(202)225-6161

Barrow, John (GA-12), (202) 225-2823

Berry, Marion (AR-01), (202) 225-4076

Bishop, Sanford (GA-02), (202) 225-3631

Boren, Dan (OK-02), (202) 225-2701

Boswell, Leonard (IA-03), (202) 225-3806

Boyd, Allen (FL-02), (202) 225-5235

Bright, Bobby (AL-02), (202) 225-2901

Cardoza, Dennis (CA-18), (202) 225-6131

Carney, Christopher (PA-10), (202) 225-3731

Chandler, Ben (KY-06), (202) 225-4706

Childers, Travis (MS-01), (202) 225-4306

Cooper, Jim (TN 5^th), (202) 225-4311

Costa, Jim (CA 20^th), (202) 225-3341

Cuellar, Henry (TX 28^th), (202) 225-1640

Dahlkemper, Kathleen A. (PA 3^rd), (202) 225-5406

Davis, Lincoln (TN 4^th),(202) 225-6831

Donnelly, Joe (IN 2^nd), (202) 225-3915

Ellsworth, Brad (IN 8^th), (202) 225-4636

Giffords, Gabrielle (AZ 8^th), (202) 225-2542

Gordon, Bart (TN 6^th), (202) 225-4231

Griffith, Parker (AL 5^th), (202) 225-4801

Harman, Jane (CA 36^th), (202) 225-8220

Herseth Sandlin, Stephanie (SD At Large), (202) 225-2801

Hill, Baron P. (IN 9^th), (202) 225-5315

Holden, Tim (PA 17^th), (202) 225-5546

Kratovil, Frank Jr. (MD 1^st), (202) 225-5311

McIntyre, Mike (NC 7^th), (202) 225-2731

Marshall, Jim (GA 8^th), (202) 225-6531

Matheson, Jim (UT 2^nd), (202) 225-3011

Melancon, Charlie (LA 3^rd), (202) 225-4031

Michaud, Michael H. (ME 2^nd), (202) 225-6306

Minnick, Walt (ID 1^st), (202) 225-6611

Mitchell, Harry E. (AZ 5^th), (202) 225-2190

Moore, Dennis (KS 3^rd), (202) 225-2865

Murphy, Patrick J. (PA 8^th), (202) 225-4276

Nye, Glenn C. (VA 2^nd), (202) 225-4215

Peterson, Collin C. (MN 7^th), (202) 225-2165

Pomeroy, Earl (ND At Large), (202) 225-2611

Ross, Mike (AR 4^th), (202) 225-3772

Salazar, John T. (CO 3^rd), (202) 225-4761
Sanchez, Loretta (CA 47^th), (202) 225-2965

Schiff, Adam B. (CA 29^th), (202) 225-4176
Scott, David (GA 13^th), (202) 225-2939

Shuler, Heath (NC 11^th), (202) 225-6401

Space, Zachary T. (OH 18^th), (202) 225-6265

Tanner, John S. (TN 8^th), (202) 225-4714

Taylor, Gene (MS 4^th), (202) 225-5772

Thompson, Mike (CA 1^st), (202) 225-3311

Wilson, Charles (OH-06), (202) 225-5705

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

If you need assistance evaluating or formulating comments on the proposed reforms contained in the House Bill or on other health industry matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney.

Other Helpful Resources & Other Information

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

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Posted by Cynthia Marcotte Stamer

House Democrats Introduce Their Version of Health Care Reform, the “America’s Affordable Health Choices Act of 2009”

July 15, 2009

House Democrats introduced their proposal for health care reform this afternoon (July 14, 2009), the “America’s Affordable Health Choices Act of 2009 (the “House Bill”). Introduced under the sponsorship of three key House committees -Energy and Commerce, Ways and Means, and Education and Labor — the 1018 page House Bill details the sweeping and comprehensive health care reforms that Democrat Leaders in the House are touting. A copy of the House Bill as introduced may be reviewed here.

The House Bill proposes sweeping reforms built around the establishment of a public plan option while technically continuing to permit private plans to operate but in a federally regulated form allowing for little meaningful plan design control to private payers, health care providers or the individuals choosing among the plan options. The Congressional Budget Office estimates that the coverage side of the bill will cost $1 trillion and cover 97 percent of the legal population within 10 years.

The following is a brief overview of certain key provisions of the House Bill drawn mostly from a series of high level summaries released by House Democrats along with the House Bill. Long on politically comforting phrasing and short on details, you can read these summaries here.

Public Plan Option. The House Bill proposes the establishment of a public health insurance option that would compete with allowable private plans, both of which would be subject to sweeping federal controls. Democrat House co-sponsors represent the House Bill:

Provides a public health insurance option that would compete with private insurers within the Health Insurance Exchange.
The public health insurance option would be made available in the new Health Insurance Exchange (Exchange) along with private health insurance plans that comply with the design dictates established in the House Bill.
The public health insurance option and private plan options meet the same benefit requirements and comply with the same insurance market reforms
The public option’s premiums would be established for the local market areas designated by the Exchange.
Individuals with affordability credits could choose among the private carriers and the public option.
Require that the public health plan and private health plan options and private options each must be financially self-sustaining
Promote primary care, encourage coordinated care and shared accountability, and improve quality.
Institute new payment structures and incentives to promote these critical reforms.
Specify health care provider participation in the plans will be voluntary; Medicare providers are presumed to be participating unless they opt out.
Provides for provider reimbursements for services from the plans initially will be established using “rates similar to those used in Medicare with greater flexibility to vary payments.
Speaker of the House Nancy Pelosi has announced plans to proceed immediately on mark up on the House Bill with the intention to of scheduling a vote on the House Bill by the end of July. Assuming that House leaders adhere to this schedule, the planned timetable leaves little opportunity for critical evaluation and input by members of Congress or the public who may have questions or concerns about the proposed legislation. Prompt and coordinated action is required for individuals with concerns about any of the proposed reforms.

Federal Mandates Health Plan Benefits. In order to achieve affordable, quality health care for all, the House Bill would impose federal standards regulating the benefits that the public health plan and private health plans would be required and permitted to offer. Under these provisions, the House Bill would:

Establish a standardized benefit package that covers essential health services.
Vest the power in the Secretary of Health & Human Services to decide the coverage that would be included in this mandated standardize benefit package.
Eliminate cost-sharing for preventive care (including well baby and well child care)
Impose caps annual out-of-pocket spending for individuals and families.
Create a new independent Benefits Advisory to recommend to the Secretary and update the core package of benefits.
Provide for the public health plan option to offer four tiers of benefit packages from which consumers can choose to best meet their health care needs. Each allowable plan would be required to provide the dictated core benefits.
- The Basic Plan would include the federally mandated core set of covered benefits and cost sharing protections;
- The Enhanced Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Basic plan;
- The Premium Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Enhanced plan; and
- The Premium Plus Plan would include the federally mandated core set of covered benefits, the more generous cost sharing protections of the Premium plan, and additional covered benefits (e.g., oral health coverage for adults, gym membership, etc.) that will vary per plan. In this category, insurers must disclose the separate cost of the additional benefits so consumers know what they’re paying for and can choose among plans accordingly.

The House Bill empowers the Secretary of Health & Human Services to decide the federally dictated, required core set of benefits provides coverage with input from a newly created Benefits Advisory Commission. These core benefits are intended to include inpatient hospital services, outpatient hospital services, physician services, equipment and supplies incident to physician services, preventive services, maternity services, prescription drugs, rehabilitative and habilitative services, well baby and well child visits and oral health, vision, and hearing services for children and mental health and substance abuse services. However, the particular, terms and scope of these benefits is left to HHS to define.

Health Insurance Exchange. The House Bill also calls for the establishment of a “Health Insurance Exchange” meeting federal mandates through which low income individuals initially, and certain small businesses would be offered the option to purchase health care coverage through federally mandated purchasing groups. In the first year, the House Bill provides for the Health Insurance Exchange to accept those without health insurance, those who are buying health insurance on their own, and small businesses with fewer than 10 people. In the second year, the Health Insurance Exchange could accept small businesses with fewer than 20 people. After that, “larger employers as permitted by the Commissioner.” In other words, expansion is discretionary, not mandated.

Affordability & Subsidies. The House Bill provides sliding-scale affordability credits for individuals and families with incomes above the Medicaid thresholds but below 400% of poverty and imposes a cap on total out-of-pocket spending for individuals and families covered under the plans regardless of income. In addition, the House Bill would broaden Medicaid coverage to include individuals and families with incomes below 133% of poverty.

Effective 2013, sliding scale affordability credits would be provided provided to individuals and families between 133% to 400% of poverty. That means the credits phase out completely for an individual with $43,320 in income and a family of four with $88,200 in income (2009).

The sliding scale credits limit individual family spending on premiums for the essential benefit package to no more than 1.5% of income for those with the lowest income and phasing up to no more than 11% of income for those at 400% of poverty.

The affordability credits also subsidize cost sharing on a sliding scale basis, phasing out at 400% of poverty, ensuring that covered benefits are accessible.

The Health Insurance Exchange would administer the affordability credits in relationship with other federal and state entities, such as local Social Security offices and Medicaid agencies.

The essential benefit package, and all other benefit options, limit exposure to catastrophic costs with a cap on total out of pocket spending for covered benefits. Special provisions would apply to Medicaid.

Effective 2013, individuals with family income at or below 133% of poverty ($14,400 for an individual in 2009) are eligible for Medicaid. State Medicaid programs would continue to cover those individuals with incomes above 133% of poverty, using the eligibility rules states now have in place.

Paying The Tab. House Democrats propose to finance approximately half of the estimated $1 trillion bill for their proposed reforms through projected $500 billion or so in savings from Medicare and Medicaid achieved by a variety of reimbursement and benefit cutbacks and other reforms. The rest of the financing would come from a combination of revenue expections from employer and individual mandates (an estimated $200 billion over 10 years) and a surtax on the richest 1.5 percent of Americans. The surtax is 1 percent on income between $350,000 and $500,000; 1.5 percent on income between $500,000 and $1,000,000; and 5.4 percent in income above $1,000,000. The House Bill permits the amount of this surtax to vary if the bill is less or more expensive than initially anticipated.

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

Other Helpful Resources & Other Information

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Posted by Cynthia Marcotte Stamer

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

June 11, 2009

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

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

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

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

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

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

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

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

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

Assistance Monitoring & Responding To Health Care Reform Proposals

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

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

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

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

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

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

Additional Resources & Information

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Posted by Cynthia Marcotte Stamer

Registration Open For June 23 Dallas HR 2009 Health Plan Eligibility Update Program

June 9, 2009

Amid soaring health care costs and tightening corporate budgets, employers and other group health plan sponsors, fiduciaries and administrations now also must update their group health plan eligibility and enrollment practices to comply with the American Recovery and Reinvestment Act of 2009 (the “Stimulus Bill”), COBRA subsidy mandates, HIPAA special enrollment rule amendments and a host of other changes to federal eligibility mandates that already have or will take effect this year. Meanwhile, employers must keep a careful watch on Congress as it considers enacting sweeping health care reforms that are likely to place more obligations on employers.

Health plan eligibility design and administration plays a critical role in controlling health benefit costs and is a leading and growing source of health plan legal risk for employers, fiduciaries and administrators. Understanding and properly managing these concerns is imperative for employers and others sponsoring or administering these programs.

Stamer Discusses Health Plan Eligibility Rules June 23

Cynthia Marcotte Stamer will explain newly effective COBRA Subsidy Rules, genetic information nondiscrimination rules and other recent and impending changes to federal health plan eligibility mandates will be explained on June 23, 2009 during a 2009 Health Plan Eligibility Update briefing hosted by the Dallas Human Resources Management Association including:

Cynthia Stamer will explain to attendees what they need to know and do about:

New Stimulus Bill COBRA Subsidy Rules and other special COBRA rules that took effect on February 17
New GINA group health plan information scheduled to take place in 2009
Changes to HIPAA special enrollment and nondiscrimination rules
Implications for group health plans based on recent changes to FMLA and USERRA regulations
Medicare, Medicaid and CHIP nondiscrimination rules
Impending college student continuation mandates
And more….

Get details or register on line here or by telephoning Dallas Human Resources Management Association at 214-631-8775.

Stamer’s Health Plan Experience Extensive

The immediate past Chair of the American Bar Association’s Managed Care & Insurance Section, Cynthia Marcotte Stamer is a highly regarded legal advisor, author and speaker recognized both nationally and internationally for her expertise in the areas of health benefits and other human resource compliance matters. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, “Cindy” recently joined Curran Tomko Tarski, LLP as the Chair of its Labor & Employment and Health Care Practices April 1, 2009.

The Managing Editor of Solutions Law Press and an Editorial Advisory Board Member and author for Employee Benefit News and other publications, Ms. Stamer is a widely published author and popular speaker. In addition to hundreds of publications on health plan and other human resources, employee benefit and internal controls issues, Ms. Stamer is the author of the “Health Plan Eligibility Toolkit.” 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.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other health plan and other employee benefit, labor and employment, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, 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 more information and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website.

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here, For more information and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website.

You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources here. 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.

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Posted by Cynthia Marcotte Stamer

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

June 4, 2009

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

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

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

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

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

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

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Posted by Cynthia Marcotte Stamer

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.

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Posted by Cynthia Marcotte Stamer

Labor Department Gears Up To Enforce COBRA Premium Subsidy Rules

May 29, 2009

Pressure is mounting for group health plans and their employer and other sponsors and administrators to complete the details required to comply with special medical coverage continuation rules (COBRA Subsidy Rules) added to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA) by the American Recovery and Reinvestment Act of 2009 (Stimulus Bill).

The U.S. Department of Labor Employee Benefits Security Administration (EBSA) recently (May 21, 2009) announced its appeal process for assistance eligible individuals to use to complain to the EBSA when they believe they wrongfully have been denied a premium subsidy for their group health plan continuation coverage in violation of the temporary modifications (COBRA Subsidy Rules) to the group health plan medical coverage continuation requirements of the COBRA Stimulus Rules. These are the expedited complaint and appeals procedures mandated under the Stimulus Bill.

The COBRA Subsidy Rules, new genetic information nondiscrimination rules and other recent and impending changes to federal health plan eligibility mandates will be explained on June 23, 2009 during a 2009 Health Plan Eligibility Update briefing hosted by the Dallas Human Resources Management Association. Get details or register here.

The Stimulus Bill allows individuals denied the premium subsidy to get expedited review by the EBSA. Under the appeals procedures announced May 21, individuals begin this review process by completing an appeals application available on line at http://www.dol.gov/ebsa/COBRA/main.

Employers and group health plans and their plan administrators and plan insurers have been required to provide notifications and COBRA premium subsidies for certain former employees and their dependents that qualify as assistance eligible individuals and take other actions to comply with the COBRA Subsidy Rules since the COBRA Subsidy Rules took effective on February 17, 2009. While many employers and plan administrators undertaken some efforts to comply with these new COBRA mandates, many still have not fully completed all of the compliance arrangements.

With procedures to receive and administer appeals, the EBSA now is prepared to investigate possible violations of the Stimulus Bill COBRA rules. Accordingly, employers, plan administrators and insurers sponsoring or administering group health plan should prepare to respond to investigations that may be initiated by the filing of a request for EBSA review.

You can read details about the COBRA Subsidy Rules here.

Stimulus COBRA Rules In A Nutshell

Congress enacted the COBRA Subsidy Rules that took effect February 17, 2009 to help certain involuntarily terminated former employees and their dependents maintain COBRA coverage by requiring COBRA-covered group health plans temporarily to extend certain special COBRA treatment for “assistance eligible individuals.”

The Stimulus Bill temporarily limits the COBRA premium that a COBRA-covered group health plan can require an “assistance eligible individual” to pay for COBRA Coverage to 35% of the otherwise applicable COBRA premium (the “Reduced Premium”) for a period of up to 9 months (the “Subsidy Period”) beginning with the individual’s first period of COBRA Coverage beginning after February 17, 2009. The employer or insurer that collects this Reduced Premium must pay the remaining 65% of the COBRA premium (the “COBRA Subsidy”) for the assistance eligible individual during the Subsidy Period. However, the Stimulus Bill provides for that employer or insurer to claim a payroll tax credit equal to the amount of these COBRA Subsidy payments by complying with applicable IRS procedures.

The Stimulus COBRA Rules also requires group health plans to offer a second COBRA enrollment period to each assistance eligible individual not enrolled in COBRA Coverage on February 17, 2009. These second electors must be allowed to elect prospectively to enroll in COBRA coverage until the date that their COBRA Coverage eligibility otherwise would have ended if they had maintained COBRA Coverage since their termination.

Additionally, COBRA-covered group health plans that offer employees different plan options allow assistance eligible individuals the option to change their coverage choice from a higher cost option to a lesser cost option. Group health plan administrators also must provide certain notifications to assistance eligible individuals concerning these changes.

“Assistance Eligible Individuals”

The Stimulus COBRA Rules only apply to qualified beneficiaries whose loss of coverage resulted from the “involuntary termination of employment” of a covered employee. The Stimulus Bill definition of “assistance eligible individual” generally includes any COBRA “qualified beneficiary” who meets all of the following requirements:

ü Has a loss of coverage within the meaning of COBRA (“qualifying event”) as a result of the “involuntary termination of employment” of a covered employee from September 1, 2008 to December 31, 2009;

ü Is eligible for COBRA Coverage at any time during the period beginning September 1, 2008 and ending December 31, 2009; and

ü Elects COBRA coverage when first offered or as during the additional second election period required for assistance eligible individuals not enrolled in COBRA Coverage on February 17, 2009.

IRS Notice 2009-27 defines an “involuntary termination” as “a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services” based on all the facts and circumstances.

For COBRA Premium Assistance purposes, the facts and circumstances determine whether a termination is involuntary. Thus, IRS Notice 2009-27 states that a termination designated as voluntary or as a resignation nevertheless will be considered involuntary where the facts and circumstances indicate that the employer would have terminated the employee’s services, and that the employee had knowledge that the employee would be terminated.

Notice 2009-27 identifies as examples of terminations that fall within this definition of “involuntary termination” as including the following facts and circumstances:

ü The employer’s failure to renew a contract at the time the contract expires, if the employee was willing and able to execute a new contract providing terms and conditions similar to those in the expiring contract and to continue providing the services;

ü An employee-initiated termination from employment if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee;

ü An involuntary reduction of hours of employment to zero hours, such as a lay-off, furlough, or other suspension of employment, resulting in a loss of health coverage;

ü An employee’s voluntary termination of employment in response to an employer imposed reduction of hours of employment where the reduction in hours is a material negative change in the employment relationship for the employee;

ü An employer’s action to end an individual’s employment while the individual is absent from work due to illness or disability (but not mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment);

ü A termination designated on account of “retirement” if the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s services, and the employee had knowledge that the employee would be terminated;

ü The covered employee resigned as the result of a material change in the geographic location of employment for the employee;

ü A lockout initiated by an employer but not a work stoppage as the result of a strike initiated by employees or their representatives; and

ü A termination elected by the employee in return for a severance package (a “buy-out”) where the employer indicates that after the offer period for the severance package, a certain number of remaining employees in the employee’s group will be terminated

Notice 2009-27 also clarifies that the termination of employment giving rise to the loss of group health plan coverage and the loss of the group health plan coverage both must occur between September 1, 2008 and December 31, 2009 in order for an individual to qualify as an assistance eligible individual. Consequently, if the involuntary termination occurs before September 1, 2008, but the loss of coverage resulting in eligibility for COBRA Coverage occurs after September 1, 2008 (but no later than December 31, 2009), Notice 2009-28 states that the individual will not qualify as an assistance eligible individual. Likewise, where an individual’s involuntary termination occurs by December 31, 2009, but the loss of coverage resulting in eligibility for COBRA Coverage occurs after December 31, 2009, the qualified beneficiary will not qualify as an assistance eligible individual for purposes of the Subsidy COBRA Rules. According to Notice 2009-27, where the involuntary termination of employment and loss of coverage as a covered employee or dependent occur between September 1, 2008 and December 31, 2009, the election of COBRA Coverage need not occur by December 31, 2009.

Many group health plans are drafted to provide that the date that employee or dependent coverage ends or changes as a result of an employment loss is the last day of the month or some other date after the actual date of the employment termination. Under group health plans where the loss of coverage due to the qualifying event is delayed, Notice 2009-27 also reminds employers and plan administrators of the need to focus on how group health plan provisions, separation agreements and other related documents define when the loss of coverage occurs under a group health plan when applying these rules.

For purposes of COBRA, Notice 2009-27 states that when a loss of coverage under a group health plan occurs under these circumstances depends on how the group health plan treats the provision of health coverage between the date of the employment loss and the date of the resulting loss of employee and/or dependent coverage. If the plan treats the provision of health coverage as deferring the loss of coverage, Notice 2009-27 indicates the loss of coverage generally occurs when the individual ceases to be entitled to employee or dependent coverage on the same terms and conditions as would have applied had he not experienced the qualifying event. However, if the plan treats the continued provision of health coverage from the termination date until employee or dependent coverage later ends as a result as reducing the period of required COBRA Coverage, then the loss of coverage occurs on the termination date or other later date. Appropriate drafting is important to support the desired characterization.

Calculation of 35% of COBRA Premium

Based on the guidance in Notice 2009-27, many employers will want to terminate severance or other arrangements under which former employees are allowed to pay less than the maximum COBRA premium for some period of time. According to Notice 2009-29,.the premium used to determine the 35% share that must be paid by (or on behalf of) an assistance eligible individual is the cost that would be charged to the assistance eligible individual for COBRA Coverage if the individual were not an assistance eligible individual. If absent the Stimulus COBRA Rules, the group health plan would require the assistance eligible individual to pay 102% of the “applicable premium” for continuation coverage, i.e., generally the maximum permitted, the Reduced Premium equals 35% of the 102% of the applicable premium. As no good deed goes unpunished, however, if the premium the group health plan would charge the assistance eligible individual is less than the maximum allowable COBRA premium, the Reduced Premium will be 35% of that lesser amount. In determining whether an assistance eligible individual has paid 35% of the premium, payments on behalf of the individual by another person (other than the employer with respect to which the involuntary termination occurred) are taken into account.

Coverage Eligible For Premium Reduction

Notice 2009-27 also provides guidance about what types of group health plan coverage qualifies for premium reduction. According to the Notice, the premium reduction is available for COBRA Coverage of any group health plan, except a health flexible spending arrangement (FSA) under section 106(c) offered under a section 125 cafeteria plan. This includes vision-only or dental-only plans, “mini-med plans” and certain health reimbursement accounts (HRAs).

The Notice 2009-27 distinguishes exempted FSAs from covered health reimbursement arrangements (HRAs) for purposes of these rules. According to Notice 2009-27, while an HRA may qualify as an FSA under section 106(c), the exclusion of FSAs from the premium reduction is limited to FSAs provided through a section 125 cafeteria plan, which would not include an HRA.

Notice 2009-27 also indicates that retiree coverage can qualify for the premium reduction where the retiree coverage does not differ from the coverage made available to similarly situated active employees.

Premium Reduction Period Duration

Notice 2009-27 also provides guidance about when periods of coverage and the Premium Reduction Period begin and end. Under the Stimulus COBRA Rules, the premium reduction applies as of the first period of coverage beginning on or after February 17, 2009 (February 17, 2009) for which the assistance eligible individual is eligible to pay only 35% of the premium and be treated as having made full payment. For this purpose, a period of coverage is a monthly or shorter period with respect to which premiums are charged by the plan with respect to such coverage.

According to Notice 2009-27, when the Premium Reduction Period begins for an assistance eligible individual depends on the period the plan charges COBRA premiums. Where a group health plan requires an individual who loses coverage other than on the last day of the month who wishes to enroll in COBRA Coverage to pay a pro-rata portion of the monthly premium, Notice 2009-27 states the first period of coverage to which the premium reduction applies for an assistance eligible individual who loses coverage after February 17, 2009 generally is the individual’s first partial month of coverage. A different rule applies when the assistance eligible individual elects COBRA Coverage under the second election period required by the Stimulus Bill Rules, however. Whether a plan requires COBRA Coverage be paid for based on a calendar month or pro rata basis, March 1, 2009 is the beginning of the first period of coverage within the Premium Reduction Period for any assistance eligible individual enrolling during the second enrollment period and the Reduced Premium only applies to that individual for COBRA Coverage from March 1, 2009 through the end of his otherwise applicable Premium Reduction Period.

End Of Premium Reduction Period

An assistance eligible individual ceases to qualify for the premium reduction on the earliest of:

ü The first date the assistance eligible individual becomes eligible for other group health plan coverage (with certain exceptions) or Medicare coverage,

ü The date that is nine months after the first day of the first month for which the Stimulus Bill premium reduction provisions apply to the individual, or

ü The date the individual ceases to be eligible for COBRA Coverage.

Notice 2009-27 confirms that the Premium Reduction Period of an assistance eligible individual ends on the first date he becomes eligible for other group health plan coverage or Medicare effect even if the assistance eligible individual does not enroll in the other group health plan coverage.

According to Notice 2009-27, whether an offer of retiree coverage that is not COBRA Coverage simultaneously with the offering of COBRA Coverage ends the Premium Reduction Period depends on whether the retiree coverage is offered under the same group health plan as the COBRA Coverage or under a different group health plan. If offered under the same group health plan, the offer of the retiree coverage has no effect on the Premium Reduction Period. If offered under a different group health plan, the offer of retiree coverage that is not COBRA coverage ends the Premium Reduction Period. However Notice 2009-27, however, If offered to someone whose eligibility for COBRA coverage arose between September 1, 2008 and February 17, 2009, the offer render the individual ineligible for the premium reduction only if the period the individual is given for enrolling in the retiree coverage extends to at least February 17, 2009.

Notice 2009-27 also addresses when eligibility for coverage under an HRA ends eligibility for the premium reduction. It states that becoming eligible for HRA coverage ends the Premium Reduction Period unless the HRA qualifies as an FSA under section 106(c). Under section 106(c), an FSA is health coverage under which the maximum amount of reimbursement which is reasonably available to a participant of the coverage is less than 500% of the value of the coverage. For this purpose, the maximum amount of reimbursement which is reasonably available is generally the balance of the HRA and the value of the HRA coverage would generally be the applicable premium for COBRA continuation of the HRA coverage.

Notice 2009-27 also clarifies that the Premium Reduction Period of an eligible individual may extend beyond December 31, 2009 for individuals who qualify as assistance eligible individuals on or before December 31, 2009. For example, the Premium Reduction Period of an assistance eligible individual whose Premium Reduction Period begins on December 1, 2009 could extent until August 31, 2010, assuming the individual does not become eligible for other group health plan coverage or Medicare or lose eligibility for COBRA Coverage before that date.

With regard to the effect of Medicare eligibility on an assistance eligible individual’s Premium reduction Period, Notice 2009-27 indicates that an individual currently enrolled in Medicare when the involuntary termination of employment occurs is ineligible for premium reduction, even though they may be eligible to elect COBRA continuation coverage by paying the otherwise applicable unreduced COBRA premium.

Dealing With Assistance Eligible Individuals Not Eligible For Premium Subsidy Based On Eligibility For Other Group Coverage

Under the Stimulus Bill, assistance eligible individuals are required to provide notification and resume paying the unreduced usual COBRA premium when they become eligible for Medicare or other group health coverage. Where an assistance eligible individual fails to provide the required notice and continues to take advantage of the premium reduction after his Premium Reduction Period terminates due to his becoming eligible for other coverage or Medicare, Notice 2009-27 states the employer is not responsible for recovering the additional premium or otherwise recouping the COBRA premium.

Dealing With Assistance Eligible Individuals Subject to Phase Out of Premium Subsidy Eligibility Based On Income

The Stimulus COBRA Rules include tax provisions designed phase out the COBRA Subsidy for certain highly compensated employees by taxing a portion of those amounts. Notice 2009-7 discusses the mechanics through which highly compensated employees can avoid this tax liability by electing to waive the Premium Reduction and Premium Subsidy.

An assistance eligible individual who wants to make a permanent election to waive the right to the premium reduction makes the election by providing a signed and dated notification (including a reference to “permanent waiver”) to the employer or other person who is reimbursed for the premium reduction under the COBRA Premium Subsidy provisions of Code § 6432. No separate additional notification to any government agency. If an assistance eligible individual makes the permanent election to waive the right to the premium reduction, the individual may not later reverse the election and may not receive the premium reduction for any future period of COBRA Coverage in 2009 or 2010, regardless of modified adjusted gross income in those years.

Notice 2009-27 makes clear that these rules don’t allow employers to deny the Reduced Premium to these assistance eligible individuals. According to Notice 2009-27, “Even if an assistance eligible individual’s income is high enough that the recapture of the premium reduction would apply, COBRA Coverage must be provided upon payment of 35% of the premium unless the individual has notified the plan that the individual has elected the permanent waiver of the premium reduction (or the period for the premium reduction has ended).

Second COBRA Election Period

The Stimulus Bill also requires group health plans to offer a second election period to assistance eligible individuals not enrolled in COBRA Coverage on February 17, 2009 whose employment terminated between September 1, 2008 and February 16, 2009. Notice 2009-27 confirms that any individual (including a dependent) who did not have an election of COBRA Coverage in effect on February 17, 2009, but who would have been an assistance eligible individual if the election were in effect must be offered this second election period. For those electing COBRA Coverage during this second election period, the resulting coverage begins with the first period of COBRA continuation coverage beginning on or after February 17, 2009. Notice 2009-27 confirms that this extended election period is available for all individuals who are qualified beneficiaries as the result of an involuntary termination during the period from September 1, 2008, through February 17, 2009, even if they still have an open COBRA election period as of February 17, 2009. If these individuals elect COBRA under their original COBRA election period, COBRA coverage is retroactive to their loss of coverage and the premium reduction does not apply to the periods of coverage prior to the first period of coverage beginning on or after February 17, 2009 (generally, periods of coverage before March 2009 for plans with monthly coverage periods).

If, as a result of the extended election period, an assistance eligible individual becomes eligible for COBRA Coverage under a group health plan that requires payment of COBRA premiums on a calendar month basis, the individual’s first period of coverage will begin on March 1 and the Reduced Premium only applies prospectively from that date. According to Notice 2009-27, this does not change even if the plan otherwise requires individuals who lose coverage before the last day of the month and who wish to enroll in COBRA continuation coverage to pay a pro-rata portion of the monthly premium for the first partial month of coverage.

In contrast, where a group health plan determines the required COBRA premiums based on the loss of coverage, Notice 2009-27 states that the first period of coverage begins on the first day after the loss of coverage and ends on the day of the following month corresponding to the day of the loss of coverage. For example, if the last day of coverage was October 3, 2008, the period of coverage runs from the fourth of the month to the third of the following month, and thus the first period of coverage on or after February 17, 2009, is the period March 4, 2009, through April 3, 2009.

Notice 2009-27 also discusses the operation of these rules as applied to certain HRAs

Who Pays The Premium Subsidy & Claims The Payroll Tax Credit

In previously issued guidance, the IRS indicated that between the sponsoring employer or union and a group insurer, the party that collects the Reduced Premium bears responsibility to pay the 65% Premium Subsidy then claiming the payroll tax credit under the Stimulus COBRA Rules. According to Notice 2009-27, if the insurer and the employer of insured, single employer group health plan have agreed that the insurer will collect the premiums directly from the qualified beneficiaries, the insurer must treat an assistance eligible individual paying 35 of the premium as having paid the full premium, even before the employer pays the insurer the remaining 65%. If the insurer fails to treat a 35% payment by an assistance eligible individual as a payment of the full premium, the insurer may be liable for the excise tax under Code § 4980B(e)(1)(B), which applies to persons responsible for administering or providing benefits under the plan and whose act or failure to act caused (in whole or in part) the failure, if the person assumed responsibility for the performance of the act to which the failure relates.

For More Information or Assistance

If your organization needs help responding to the COBRA Subsidy Rules or other group health plan or other employee benefit or human resources matters, please contact Cynthia Marcotte Stamer. Ms. 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 its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer at e-mail, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website or Cynthia Marcotte Stamer, P.C. Website.

We hope that this information is useful to you. You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources at CynthiaStamer.com For additional information about Ms. Stamer and her experience, see 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 Currant contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

Tell Senate Committee Today Not To Mess Up Health Benefits

May 27, 2009

Today is the last day that individuals and businesses concerned about health care can provide feedback to Congress on health care reform proposals on the fast track for adoption by Congress and have their opinion included in the official hearing record of the May 12, 2009 Senate Finance Committee Hearing on “Financing Comprehensive Health Care Reform.” Start speaking up today and keep speaking out until you are heard.

Senate health care reform leaders have announced their intention to have the Senate vote and pass health care reform legislation that would drastically change the U.S. health care and health insurance system during June. Individuals and businesses concerned about Congressional proposals to private health benefits with federal government benefits, to tax individuals and businesses on health benefits, and to make other radical changes in our health care programs should e-mail their concerns to Congress today. Recent statements by Congressional leaders and President Obama indicate that the intend to act quickly to pass major health care reforms within the next few months, beginning with action by the Senate in June.

The Senate Finance Committee discussed the proposed changes during a “Roundtable Discussion” hearing on May 12, 2009. Among the changes that this hearing reflects to be under serious consideration by Congress are proposals:

To tax individuals on health benefits and/or coverage
Reduce or eliminate employer tax benefits for providing health coverage
Mandate individuals and/or employees pay government mandated health insurance premiums
Replace existing employer and private health insurance programs with government run or mandated benefit programs
Involve the federal government in deciding who and when Americans get care
Establish other burdensome federal requirements and regulations on health benefits and health care providers.

You can review or listen to the testimony and learn more about what Congress plans to do to your and your employees’ health benefits here.

If you or others that you know are concerned about all or any of these proposals, we urge you to share your feedback TODAY as follows and staying involved as Congress moves to act:

E-mail the Health Care Reform Leadership of the Senate Finance Committee at Health_reform@finance_dem.senate.gov
E-mail each member of the Senate Finance Committee at http://finance.senate.gov/sitepages/committee.htm
Call (202) 224-4515 and share your views with Congressional Staffers Erin Shields (Baucus) and Jill Gerber (Grassley), Committee on Finance, 219 Dirksen Senate Office Building, Washington, D.C. 20510-6200
Tell your Senators and Representatives you oppose Congressional plans to fast track health care reform the way Congress enacted the Stimulus Bill
Tell your Senators and Representatives you will support members of Congress who vote responsibly on health care reform
Tell your Senators and Representatives in Congress and political party leaders you will work to defeat members and candidates that advocate these and other irresponsible health care reform legisltation
Carry through on your promises
Keep speaking out until you are heard and Congress gets the message.

Cynthia Marcotte Stamer is an attorney, author and health care advocate known for her work and writings nationally and internationally on health care and coverage policy and legal matters . If your organization needs assistance with assessing, managing or communicating its concerns about this legislation or other health care and insurance, employment or employee benefit practices, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the http://www.cttlegal.com.

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 at CynthiaStamer.com 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 Currant contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

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Posted by Cynthia Marcotte Stamer

New GINA Health Plan Nondiscrimination Rules Effective For Plan Years Beginning On or After Today

May 21, 2009

New restrictions on the collection, use and disclosure of genetic information applicable to employer and union-sponsored group health plans enacted under Title I of the Genetic Information Nondiscrimination Act of 2008, Public Law No. 110-233 (GINA) for group health plan years that begin on or after today (May 21, 2009). For non-calendar year plans with plan years beginning between June 1 and December 1, the effective date occurs on first day of their 2009 plan year. For example, the effective date will be June 1, 2009 for a plan with a 2009 plan year that begins June 1. For calendar year plans, the compliance deadline is January 1, 2010. All employer-sponsored group health plans are required to comply with GINA. There are no small group exceptions.

GINA In A Nutshell

GINA amended federal law to include specific prohibitions against certain discrimination based on genetic information by group health plans and health insurers (Title I) and to prohibit discrimination based on genetic information by employers of 15 or more employees (Title II).

Meanwhile, employers, unions and others face their own new prohibitions against genetic information based employment discrimination added by Title II of GINA, which take effect November 21, 2009. The Equal Employment Opportunity Commission (EEOC) published proposed regulations interpreting Title II of GINA in March, 2009.

Broad Definition of “Genetic Information”

The broad range of information included within GINA’s broad definition of “genetic information” means its new restrictions have a sweeping reach when applied to most group health plans. GINA defines “genetic information to include with respect to any individual, information about:

Such individual’s genetic tests;
The genetic tests of family members of such individual; and
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” 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.

Group Health Plan Genetic Testing Collection and Nondiscrimination Rules

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 Amendments To Health Plan Privacy Rules Under HIPAA

The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.

Regulatory Guidance Status

As the the deadline for compliance for post May 20, 2009 plan years is rapidly approaching, however, many group health plans and their sponsors will need forward with their compliance arrangements in the absence of regulatory guidance interpreting these requirements.

The Department of Labor Employee Benefit Security Administration (EBSA);
The Internal Revenue Services (IRS), and
The Department of Health & Human Services.

While these three agencies previously published a request for public comments about issues under Title I’s provisions, see http://edocket.access.gpo.gov/2008/pdf/E8-24194.pdf, none of these three agencies as of May 20, 2009 has published interim or other regulations interpreting the GINA provisions within their scope of responsibility since the formal comments period ended December 9, 2009. Although the EBSA Spring 2009 regulatory agenda reflected it intended to publish interim regulations by today and agency officials continue to indicate they intend to publish guidance “soon,” no guidance had been published as of May 20, 2009.

Even if the agencies issue guidance by the end of May plan sponsors and administrators of group health plans with new plan years beginning in the next 60 to 90 days are expressing concern that they will have inadequate time to complete compliance arrangements. As a result, in addition to guidance about GINA’s requirements generally, some are hopeful that the guidance with include transition rules or other relief to allow more time to comply with the regulations when finally issued. Regulators as of May 20, 2009 had not given any indication that they plan or perceive that they are authorized to provide such relief.

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 at CynthiaStamer.com 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 Currant contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com. If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here.

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Posted by Cynthia Marcotte Stamer

Most Employers, Plans Still Have Work To Do To Comply With Stimulus Bill COBRA Rules

May 14, 2009

Many employers have used the Model Notices posted March 19, 2009 by the Department of Labor (DOL) to meet the April 17, 2009 deadline to provide initial notification to employees and dependents whose group health coverage terminated as a result of an involuntary termination of employment between September 1, 2008 and February 17, 2009 under the temporary rules added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“Stimulus Bill”). However, most employers including many distressed and reorganizing companies and their group health plan administrators, fiduciaries and insurers have additional work to do to complete the arrangements to comply with these new Stimulus Bill COBRA rules

Although many employers and group health plans have taken preliminary action to comply, most employers and group health plan insurers, administrators and fiduciaries have not fully completed the steps needed to complete compliance arrangements. Among the companies sponsoring group health plans most likely to be behind in their compliance efforts are those in bankruptcy and distressed companies, where internal human resources and employee benefit staff and outside vendor relationships are likely to be reduced, overextended, or otherwise distracted.

In some instances, parties responsible for sending notifications and making other compliance arrangements have not begun to comply. More typically, however, employers sponsoring group health plans, their administrators, insurers or fiduciaries may mistakenly believe that preliminary compliance efforts fulfilled their compliance responsibilities. As a result, many have failed to complete all of the steps necessary to comply. For instance:

Many employers, health plan fiduciaries and administrators have not formally amended their group health plans, updated their COBRA initital notifications and summary plan descriptions, implemented required procedures and finished other arrangements necessary to bring their group health plans into compliance with the Stimulus Bill COBRA requirements.
Many employers, insurers, administrators and fiduciaries who used the Model Notices initially to provide required notices are finding additional refinements to their notices and procedures to reduce questions and confusion by recipients attributable to poor tailoring of the information to their particular plan design.
Many employers who outsource the collection of COBRA premiums or other aspects of COBRA administration will want to revise Model Notice language to avoid unnecessarily undermining previously negotiated allocations of fiduciary responsibility to those third parties for responsibilities outsourced.

Employers, health plan administrators, and health insurers involved in the sponsorship or administration of COBRA-covered group health plans should consult with counsel about the suitability of using the Model Notices to provide required notifications of the new Stimulus Bill COBRA rules and other steps necessary to comply with the new requirements. Compliance with the Stimulus Bill COBRA rules is mandatory for all COBRA-covered group health plans and certain other arrangements including group health plans sponsored by businesses in bankruptcy where the entity or a commonly controlled or affiliated entity continues to maintain a group health plan.

Stimulus Bill COBRA Rule Basics

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

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

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

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

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

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

March 19, 2009 & Other Piecemeal Guidance

The March 19, 2009 DOL Guidance containing the Model Notices is part of a series of interim and evolving guidance separately issued by the IRS and DOL between February and April. The March 19, 2009 DOL Guidance includes:

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

In addition to the March 19, 2009 Guidance, the DOL and IRS previous also had issued a series of other guidance relating to the implementation and application of the Stimulus Bill COBRA rules on a piecemeal basis. These include separately issued IRS guidance detailing the documentation and procedures that the IRS has indicated that employers or others who collect discounted COBRA premiums from Stimulus Bill assistance eligible individuals must meet in order to comply with the COBRA Stimulus Bill mandates and to recover additional amounts that the employer pays as a COBRA premium subsidy on behalf of assistance eligible individuals through the payroll tax credit provisions of the Stimulus Bill COBRA rules. You can review:

The current Deparment of Labor Guidance at www.dol.gov/ebsa/COBRA.html
The current IRS Guidance at www.irs.gov/newsroom/article/0,,id=204505,00.html/COBRA.html.

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

More Resources, Information & Assistance

Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer consults with clients and writes and speaks extensively about COBRA and other group health plan matters. Author of the “Health Care Eligibility Toolkit” and nationally known for her experience on COBRA matters, her Solutions Law Press article discussing the highlights of these IRS requirements and other previous guidance at http://www.cynthiastamer.com/documents/alerts/20090303_NEW%20IRS%20&%20DOL%20Guidance%20On%20Stimulus%20Bill%20COBRA%20Relief.pdf is just one of many helpful publications she has written on the Stimulus Bill COBRA Rules and other related matters. The Stimulus Bill COBRA rules were among the updates discussed by Cynthia Marcotte Stamer during a March 11, 2009 Health Plan Update Teleconference she presented for Solutions Law Press.

If you are an employer or other group health plan sponsor, administrator, insurer or fiduciary and need assistance in preparing required notifications or with other matters relating to the Stimulus Bill COBRA Rules or any other health or other employee benefits matter, contact Cynthia Marcotte Stamer at CStamer@SolutionsLawyer.net or via telephone at 972.419.7188. For information about how to purchase a recording of this teleconference or to review other breaking news updates about these Stimulus Bill COBRA Rules, e-mail CStamer@cttlegal.com.

You also can register to receive these and other updates by registering for this blog or by registering to receive other helpful Curran Tomko Tarski LLP publications at CTTLegal.com.

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Posted by Cynthia Marcotte Stamer

EEOC GIVES EMPLOYERS LIMITED EMPLOYER GUIDANCE ABOUT ADA ISSUES IN SWINE FLU RESPONSE

May 13, 2009

Recent concerns over the H1N1 Swine Flu (swine flu) pandemic and warnings of a possible resurgence of the swine flu pandemic or some other pandemic in the future is forcing many employers to question when concerns that an employee suffers from a contagious disease can justify the employer making inquires about the health of an employee or the exclusion of the employee from the workplace. New guidance set forth in the “U.S. Equal Employment Opportunity Commission ADA-Compliant Employer Preparedness For the H1N1 Flu Virus” (Guidance) published by the U.S. Department of Labor Equal Employment Opportunity Commission (EEOC) on May 4, 2009 provides some insights for employers about the EEOC’s perspective on these questions.

The Guidance details the EEOC’s answers to certain basic questions about when the EEOC views certain workplace preparation strategies for responding to the 2009 flu virus as compliant with the Americans with Disabilities Act (ADA). Employers considering updates to their current pandemic and infectious disease response plans are cautioned that in addition to potential ADA exposures, practices for periods after November 21, 2009 also generally must be tailored to comply with new restrictions on employer’s collection of and discrimination based on genetic information based on the Genetic Information Nondiscrimination Act of 2008 (GINA). Proposed regulations interpreting the employment provisions of GINA published by the EEOC in March 2009 do not specifically address the implications of GINA on employer planning or response to pandemic concerns.

ADA Concerns Apply To Employers Planning For & Applying Swine Flu Response

Title I of the Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination. Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. The Guidance confirms that the EEOC views this requirement as affecting when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

Effective January 1, 2009, Congress amended the Americans with Disabilities Act pursuant to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to change the way that the ADA’s statutory definition of the term “disability” historically has been interpreted by certain courts. The ADAAA amendments generally are intended and expected to make it easier for certain individuals to qualify as disabled under the ADA. While the Guidance announces that the EEOC intends to revise its ADA regulations to reflect the broader group of persons protected as disabled under the ADAAA amendments, it also indicates that the EEOC does not perceive that the ADAAA changes the actions prohibited by the ADA as they relate to common pandemic planning and response activities. Consequently, the Guidance states that the EEOC views the guidance in “Disability-Related Inquiries & Medical Examinations of Employees Under the ADA” published by the EEOC in 2000 and its “Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations” published in 1995 as setting forth the governing rules for medical testing, inquires and other pandemic response planning under the ADA.

Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment.

At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.
At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

Employers deviating from these requirements when administering their pandemic planning or response risk disability discrimination liability under the ADA unless they otherwise can defend their action under one of the exceptions to the ADA’s disability discrimination prohibitions. When making post-offer inquiries or requiring post offer examinations or imposing other conditions for safety reasons, the Guidance and EEOC in unofficial discussions have emphasized the importance of the employer’s ability to demonstrate the job or safety relevance of the medical inquiry or examination based on credible scientific evidence such as the latest scientific evidence available from the World Health Organization (WHO) and the Centers for Disease Control and Prevention (CDC).

Other than emphasizing the importance of acting appropriately in response to credible scientific evidence and pointing to preexisting guidance, the Guidance does not extensively address with specificity the circumstances under which the EEOC will view any particular action taken by an employer as defensible under the safety or other exceptions of the ADA. Likewise, the Guidance does not discuss in any details the conditions, if any, under which the EEOC would view suffering, a history of suffering or association with or exposure to swine flu as qualifying an individual as disabled or perceived to be disabled for purposes of the ADA. Consequently, employer must rely on other less specifically tailored guidance for purposes of assessing the defensibility of a proposed action on these grounds.

Planning for Absenteeism Under ADA

When planning for a possible pandemic, employers must be careful about when and how they ask employees about factors, including chronic medical conditions that may cause them to miss work in the event of a pandemic. According to the Guidance, an employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity). The Guidance includes a sample of what the EEOC views as ADA-compliant survey that could be given to all employees before a pandemic.

The Guidance also indicates that where appropriate safeguards are applied to comply with the ADA, it also may be appropriate for an employer under certain limited circumstances, to require entering employees to have a medical test post-offer to determine their exposure to the influenza virus. According to the EEOC, the ADA permits an employer to require entering employees to undergo a job relevant medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination. Thus, the Guidance reflects that the requirement by an employer as part of its pandemic influenza preparedness plan that all entering employees in the same job categories undergo the same post offer medical testing for the virus in accordance with recommendations by the WHO and the CDC in response to a new influenza virus may be ADA-compliant.

Infection Control in the Workplace Under the ADA

The Guidance also discusses the EEOC’s perceptions about the ADA implications of employer use of certain infection control practices in the workplace during a pandemic provided that the requirements are applied in a nondiscriminatory fashion consistent with the ADA. For instance, the Guidance states that employers generally may apply with following infection control practices without implicating the ADA:

Require all employees to comply with certain infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal without implicating the ADA;
May require employees to wear personal protective equipment provided that where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), employer provides these accommodations absent undue hardship;
Encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions or offer telework as a possible reasonable accommodation.

In all cases, of course, the Guidance cautions that employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by the ADA or any of the other federal Equal Employment Opportunity laws.

Impending GINA Rules

As signed into law, GINA amends Title VII of the Civil Rights Act, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), 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 “genetic information” by employers, employment agencies, labor organizations, joint labor-management committees, group health plans and insurers and their agents. GINA’s group health plan restrictions are scheduled to take effect May 21, 2009. The employment related genetic testing rules of GINA take affect November 21, 2009. Employers and other covered entities will need to carefully review and timely update their pandemic and other infectious disease response practices as well as their group health plan, family leave, disability accommodation, and other existing policies in light of these new federal rules.

Although EEOC has not finalized its implementing regulations for GINA yet, employers should anticipate that GINA will impact their pandemic and other related practices. The implications of GINA for employers and other entities covered by its provisions because of its broad definition of genetic information.

Under GINA, “genetic information” is defined to mean with respect to any individual, information about:

Such individual’s genetic tests;
The genetic tests of family members of such individual; and
The manifestation of a disease or disorder in family members of such individual.

Pending issuance of final regulatory guidance, Gina’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of wellness and safety, leave, and other employment and benefit practices, particularly as apparently will reach a broader range of conditions than those currently protected under the disability discrimination prohibitions of the Americans With Disabilities Act (“ADA”).

Depending on the contemplated inquiry or practice, certain inquiries or actions intended for use as part of an employer’s pandemic preparedness or response activities could fall within the scope of GINA’s protections. For this reason, employers also should consider the potential treatment of a proposed pandemic preparation or response activity intended to be applied after GINA takes effect in light of GINA. Additionally, employers also should consider the risk that information collected under existing or previously applied pandemic or other infectious disease prevention and response activities might qualify for additional protection when GINA takes effect in November, 2009.

Other Resources

“Planning for the Pandemic” authored available at http://www.cynthiastamer.com/documents/speeches/20070530%20Pan%20Flu%20Workplace%20Privacy%20Issues%20Final%20Merged.pdf;
“Dealing With Leave & Other Workplace Fallout of Swine Flu Pandemic Response” available at http://cttlegalhr.wordpress.com/2009/05/04/dealing-with-leave-other-workplace-fallout-of-swine-flu-pandemic-response; and
“Workforce Swine Flu Pandemic Survival Preparedness Tips For Business” available at http://cttlegalhr.wordpress.com/2009/04/29/hello-world.

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Posted by Cynthia Marcotte Stamer

COBRA Premium Reduction and Extended Eligibility Provisions in the American Recovery and Reinvestment Act of 2009

May 2, 2009

The U.S. Department of Labor (“DOL”) today (May 1, 2009) continued its efforts to increase awareness of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provisions in the American Recovery and Reinvestment Act of 2009 (“ARRA”) by sharing information with state agencies and asking their assistance in helping dislocated workers, businesses, and partners in understanding the new law.

Under ARRA, employees involuntarily terminated between September 1, 2008 and December 31, 2009 and their dependents may be able to qualify for a 65% discount in the required premium they must pay to maintain COBRA coverage under their former employer’s group health plan for up to 9 months. Special rules also apply to former employees who qualify for Trade Adjustment Assistance or affected by certain Pension Benefit Guarantee Corporation insurance programs.

Employers must pay the remaining amount of the otherwise required COBRA premium, but can request reimbursement from the Internal Revenue Service by filing for a payroll tax credit under the provisions of ARRA.

Group health plans were required to begin complying with the new ARRA rules beginning February 17, 2009 and to notify workers of the new rules no later than April 18, 2009. Many employers and their group health plan sponsors are still working to complete the necessary arrangements to comply with these new requirements.

The communication of information about the new provisions by the DOL, group health plans, employers and the media have prompted an outpouring of questions from many employees and their dependents, confused about their eligibility for the ARRA COBRA Subsidy and its workings.

In Training And Employment Notice No. 42-08, which is addressed to state workforce agencies, labor commissioners and other state workforce regulators, the Employment and Training Administration (“ETA”):

Shared certain basic information about ARRA’s COBRA, Trade Adjustment Assistance and other workforce assistance relief;
Detailed some of the training and other resources provided by the DOL to help States and their citizens understand these new provisions and the procedures for their use; and
Asked the regulators to assist in communicating and disseminating the information to individuals who might qualify for benefits and other interested parties.

Interested persons can review the announcement at http://wdr.doleta.gov/directives/attach/TEN/ten2008/TEN42-08acc.pdf.

Cynthia Marcotte Stamer is nationally known for her knowledge and experience on COBRA and other health benefit and employee benefit matters,. You will find several of these previous publications on the new ARRA COBRA provisions on prior editions of the Solutions Law Press HR & Benefits Update. You also can access some of the many practical updates that she has prepared on these and other COBRA matters by e-mailing or contacting her. She and other members of Curren 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 its COBRA or other employee benefit or human resources practices, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402 or your favorite Curren Tomko Tarski, LLP attorney.

For additional information about the experience and services of Ms. Stamer and other members of the Curren Tomko Tarksi, LLP team, see the http://www.cttlegal.com.

Comments Off on COBRA Premium Reduction and Extended Eligibility Provisions in the American Recovery and Reinvestment Act of 2009 | COBRA, Corporate Compliance, Employers, Employment Tax, ERISA, Health Plans, Insurance, Stimulus Bill, Tax | Tagged: Compensation, Corporate Compliance, Employee Benefits, Employer, Employers, ERISA, Health Insurance, Health Plans, HealthP Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, Risk Management, Stimulus Bill, Subsidy Bill, Tax | Permalink
Posted by Cynthia Marcotte Stamer

New IRS COBRA Subsidy Guidance Defines Involuntary Termination; Other Workings of Rules

April 3, 2009

Employers, plan administrators and group health plan insurers have more information about what terminations are considered “involuntary” and the meaning of other requirements imposed by temporary modifications (COBRA Subsidy Rules) to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA) enacted under the American Recovery and Reinvestment Act of 2009 (Stimulus Bill).

The Internal Revenue Service (IRS) yesterday (April 1, 2009) released additional guidance about the COBRA Subsidy Rules. Part of a series of guidance trickling out from the IRS, the Department of Labor (DOL) and the Department of Health & Human Services (HHS) about the COBRA Subsidy Rules. The IRS publication of this guidance follows the release by March 20, 2009 of its Model Notices notify certain current and former participants and beneficiaries about some of the Stimulus COBRA Rules.

IRS Notice 2009-27 includes guidance about:

ü Who qualifies as an “assistance eligible individual;

ü When the IRS views a reduction in hours or termination of employment as qualifying as an involuntary termination of employment for purposes of the COBRA Premium Assistance Rules;

ü How to calculate the 35% of the standard COBRA premium is calculated for purposes of determining the reduced COBRA premium amount (the “Reduced Premium”) that an assistance eligible individual must pay during the period (Premium Reduction Period) he qualifies for the premium subsidy assistance provided for under the Stimulus Bill;

ü The types of group health plan coverage eligible for the Reduced Premium under the Stimulus Bill;

ü The beginning and end of the Premium Reduction Period;

ü When and how an assistance eligible individual’s income and eligibility for Medicare or other group health plan coverage affects his eligibility for the Reduced Premium;

ü The mechanics that employers and highly compensated assistance eligible individuals must use if the individual wishes to waive the Reduced Premium and resulting COBRA Subsidy

ü The application of the second election period required for assistance eligible individuals not enrolled in COBRA Coverage on February 17, 2009 and

ü Other details of the COBRA Subsidy Rules.

Stimulus COBRA Rules In A Nutshell

“Assistance Eligible Individuals”

ü Is eligible for COBRA Coverage at any time during the period beginning September 1, 2008 and ending December 31, 2009; and

ü Elects COBRA coverage when first offered or as during the additional second election period required for assistance eligible individuals not enrolled in COBRA Coverage on February 17, 2009.

Notice 2009-27 identifies as examples of terminations that fall within this definition of “involuntary termination” as including the following facts and circumstances:

ü An involuntary reduction of hours of employment to zero hours, such as a lay-off, furlough, or other suspension of employment, resulting in a loss of health coverage;

ü The covered employee resigned as the result of a material change in the geographic location of employment for the employee;

ü A lockout initiated by an employer but not a work stoppage as the result of a strike initiated by employees or their representatives; and

Calculation of 35% of COBRA Premium

Coverage Eligible For Premium Reduction

Premium Reduction Period Duration

End Of Premium Reduction Period

An assistance eligible individual ceases to qualify for the premium reduction on the earliest of:

ü The first date the assistance eligible individual becomes eligible for other group health plan coverage (with certain exceptions) or Medicare coverage,

ü The date that is nine months after the first day of the first month for which the Stimulus Bill premium reduction provisions apply to the individual, or

ü The date the individual ceases to be eligible for COBRA Coverage.

Dealing With Assistance Eligible Individuals Not Eligible For Premium Subsidy Based On Eligibility For Other Group Coverage

Dealing With Assistance Eligible Individuals Subject to Phase Out of Premium Subsidy Eligibility Based On Income

Second COBRA Election Period

Notice 2009-27 also discusses the operation of these rules as applied to certain HRAs

Who Pays The Premium Subsidy & Claims The Payroll Tax Credit

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

More Information

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

Comments Off on New IRS COBRA Subsidy Guidance Defines Involuntary Termination; Other Workings of Rules | COBRA, Employers, Health Plans, Human Resources, Stimulus Bill | Tagged: COBRA, Employers, Health Insurance, Health Plans, Medical Coverage, Premium Subsidy, Subsidy Bill | Permalink
Posted by Cynthia Marcotte Stamer

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