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Learn About Rising Group Health Plan Mental Health Mandate Risks From 6/27 “2017 Federal Group Health Plan Mental Health Rules Update”

June 22, 2017

Register Now To Participate In

“2017 Federal Group Health Plan Mental Health Rules Update”

Solutions Law Press, Inc™ Health Plan Update WebEx Briefing

Tuesday, June 27, 2017

10:30 A.M.-11:30 P.M. Eastern | 11:30 A.M.-12:30 P.M. Central

EXPANDING REGULATORY REQUIREMENTS & ENFORCEMENT SPELL TROUBLE FOR HEALTH PLANS AND THEIR SPONSORING EMPLOYERS.

Solutions Law Press, Inc.™ invites employer and other group health plan sponsors, fiduciaries, insurers, administrative service providers, plan brokers and consultants are invited learn critical information about their expanding risks and responsibilities arising from existing and proposed changes to rules and enforcement of federal group health plan mental health and substance abuse (MH/SUB) coverage and privacy rules under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), as supplemented by the Patient Protection and Affordable Care Act (ACA) and the 21st Century Cures Act (Cures Act) and the Privacy Rules of the Health Insurance Portability & Accountability Act (HIPAA) conducted by attorney Cynthia Marcotte Stamer, a Fellow in the American College of Employee Benefits recognized as among the “Best Lawyers” in employee benefits for her health and other benefit knowledge, experience, policy advocacy and thought leadership. Register here now!

Tightening Health Plan Mental Health & Substance Abuse Rules & Enforcement Make Group Health Plan Compliance Critical

New and proposed guidance jointly published June 16, 2017 by the Departments of Labor (DOL), Health & Human Services (HHS) and Treasury is the latest in a series of regulatory and enforcement developments over the past year alerting group health plans and their employer and other group health plan sponsors, fiduciaries, insurers, administrative services providers, plan brokers and consultants involved in health plan design, funding, or administration to get serious about their group health plans’ compliance with the MHPAEA federal group health plan mental health and substance abuse coverage and benefit requirements, as supplemented by the ACA and the Cures Act without running afoul of the Privacy Rules of HIPAA.

Building upon federal group health plan mental health parity mandates originally implemented under the Mental Health Parity Act, the MHPAEA generally requires that any financial requirements or treatment limitations group health plans impose on mental health and substance use disorder (MH/SUD) benefits not be restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. MHPAEA also imposes several disclosure requirements on group health plans and health insurance issuers. Not satisfied with the MHPAEA coverage and disclosure protections, however, Congress subsequently broadened federal MH/SUD benefit rights under group health plans through the enactment of the ACA and the Cures Act. Congress also has imposed special requirements and protections for mental health treatment records adds additional responsibilities for group health plans and their service providers when dealing with information and records in connection with the administration of MH/SUD benefits.

After a long period of lax oversight and enforcement of these federal group health plan mental health rules, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) since October, 2016 have begun both tightening the rules and acting to increase oversight and enforcement. The Departments have issued a series of joint guidance clarifying and broadening their interpretations of these MH/SUD benefit and disclosure mandates while simultaneously taking steps to increase awareness and enforcement of these rights. As part of these ongoing efforts, Departments’ on June 16, 2017 expanded this guidance with their publication of new Mental Health Parity Implementation FAQs Part 38 discussing their joint interpretation of the broadening effect of the enactment of the ACA and the Cure Act on these plan requirements. Concurrently, the Departments signaled their intention to add additional responsibilities for group health plans and insurers by publishing along with FAQ Part 38 a Draft MHPAEA Disclosure Template and request for comments. This latest guidance package reaffirms that the Departments are continuing efforts to increase oversight of and enforcement of MH/SUD compliance against group health plans, their sponsors, fiduciaries, insurers, and their administrative and other service providers. In the face of these developments and the reported initiation of enforcement actions by the Departments, the group health plans, their employer and other sponsors, fiduciaries, insurers, and their administrative and other service providers should move quickly to understand and update their plans and practices to comply with these recent developments while bracing for the likely need to deal with further expanded disclosure and other additional responsibilities under the MHPAEA jointly proposed by the Departments on June 16, 2017.

Beyond fulfilling these expanding MHPAEA responsibilities, health plan fiduciaries, administrators, insurers and sponsors also must ensure their health plan and its business associates comply with special rules concerning the protection, use and disclosure of mental health treatment records and information that may impact certain mental health treatment and other records received, used, retained or disclosed in the course of administering mental health, substance abuse or other provisions of their group health plans under the HIPAA Privacy Rules. Keeping in mind that HHS audit and enforcement of compliance by health plans and other HIPAA covered entities with HIPAA’s medical privacy and data security rules, health plan sponsors, fiduciaries, insurers and administrative and other service providers also should take the opportunity to verify that their plans and practices comply with special HIPAA rules impacting authorizations and other dealings with certain mental health and substance abuse health information and records and other HIPAA medical privacy and security requirements.

Given these developments, group health plans, their sponsors, fiduciaries, insurers and administrator must take steps to verify and maintain compliance with these federal MH/SUD requirements. Ensuring proper compliance with these federal rules is particularly important to avoid triggering the substantial liability that health plans, their employer and other sponsors, insurers, and administrators can incur if their health plan violates these mandates. Obviously, plans and their sponsors, insurers and fiduciaries can expect to pay additional plan expenses necessary to pay wrongfully denied benefits and other expenditures these plan or its fiduciaries expend to investigate, defend and resolve claims or compliance audits, investigations, litigation or actions brought by the Departments, state insurance regulators with respect to state governments or insurers, or private litigation by participants or beneficiaries. Many employer or other plan sponsors may be unaware that these violations also generally expose employers and other health plan sponsors to liability to self identify, self-report on Internal Revenue Service Form 8928 and self-pay and excise tax of up to $100 per participant per day per uncorrected violation by the due date for filing of their annual corporate tax return.

With oversight and enforcement already rising and the Departments proposing to expand further both disclosure duties and enforcement, group health plans, their employer and other sponsors, insurers, fiduciaries and administrators clearly need to take prompt action to verify their existing health plan provisions and administrative practices are up-to-date and administered to withstand challenge from the Departments, participants, beneficiaries, health care providers and others. Consequently, employer and other group health plan sponsors, fiduciaries, insurers, administrative services providers, plan brokers and consultants involved in health plan design, funding, or administration should act quickly to verify their plan terms and practices are updated to comply with existing rules and share their input in response to the Departments June 16, 2017 requests for comments.

ABOUT CYNTHIA MARCOTTE STAMER

Recognized as “Legal Leader™ Texas Top Rated Lawyer” in both Health Care Law and Labor and Employment Law, a “Texas Top Lawyer,” and an “AV-Preeminent” and “Top Rated Lawyer” by Martindale-Hubble, singled out as among the “Best Lawyers In Dallas” in employee benefits by D Magazine; Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely recognized for her nearly 30 years’ of work and pragmatic thought leadership, publications and training on health coverage and health care, health plan and employee benefits, workforce and related regulatory and other compliance, performance management, risk management, product and process development, public policy, operations and other concerns.

Throughout her legal and consulting career, Ms. Stamer has drawn recognition for combining extensive knowledge and experience with her talents as an insightful innovator and problem solver when advising, representing and defending employer and other plan sponsors, insurers, fiduciaries, insurers, electronic and other technology, plan administrators and other service providers, governments and others about health coverage, benefit program design, funding, documentation, administration, data security and use, contracting, plan, public and regulatory reforms and enforcement, and other risk management and operations matters as well as for her work and thought leadership on a broad range of other health, employee benefits, human resources and other workforce, insurance, tax, compliance and other matters. Her experience encompasses leading and supporting the development and defense of innovative new programs, practices and solutions; advising and representing clients on routine plan establishment, plan documentation and contract drafting and review, administration, change and other compliance and operations crisis prevention and response, compliance and risk management audits and investigations, enforcement actions and other dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, Justice, state legislatures, attorneys general, insurance, labor, worker’s compensation, and other agencies and regulators, She also provides strategic and other supports clients in defending litigation as lead strategy counsel, special counsel and as an expert witness.

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

Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, the Society of Professional Benefits Administrators, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients, serves on the faculty and planning committee of many workshops, seminars, and symposia, and on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email to here or via telephone to (469) 767-8872.

About Solutions Law Press

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

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Parties accessing or using any of Solutions Law Press, Inc.™ competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The publisher and the author expressly disclaim all liability for this content and any responsibility to provide any update or otherwise notify anyone of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

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Posted by Cynthia Marcotte Stamer

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

March 2, 2015

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

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

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

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

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

Prepare Employment Discrimination Defenses

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

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

For Advice, Training & Other Resources

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

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

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

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

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

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

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

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Posted by Cynthia Marcotte Stamer

Private Exchanges: Employer Health Program Panacea or Problem? Consider Carefully!

November 20, 2014

Employers trying to continue offering affordable health and welfare benefits amid the expanding costs and regulations enacted under the Patient Protection & Affordable Care Act (ACA) often are encouraged by some consultants and brokers to consider offering coverage options pursuant to a “private exchange” offering employees the options to get reimbursement for individual health coverage from a health reimbursement account (HRA) (collectively the “agencies”) or other choice optand cions.

While these options sound attractive, not all of these options work for all employers. The consumer driven health care and other private exchange lingo used to describe these arrangements often means different things to different people. Some “private exchanges” are little more than high-tech online cafeteria enrollment arrangements. See, e.g. A ‘Cynical’ Look at Private Exchanges Employers need to carefully scrutinize these proposals both for their compliance and other legal risks, affordability and cost, and other suitability.

When considering a private exchange or other arrangement, it is important to understand clearly the proposal, its design, operation, participating vendors, the charges, what is excluded or costs extra, and who is responsible for delivering what. Assuming an employer views the cost and operations merit considering the option, it also needs to carefully evaluate the legal compliance and risks of the arrangements.

The agencies have issued a long stream of guidance cautioning employers about the use of arrangements where the employer provides pre- or after-tax dollars to pay for or reimburse premiums for individual policies, and employers from paying or reimbursing employees for the cost of enrolling in coverage under a public health insurance exchange or both. See, e.g., DOL Technical Release 2013-03; IRS Notice 2013-54; Insurance Standards Bulletin, Application of Affordable Care Act Provisions to Certain Healthcare Arrangement; IRS May 13, 2014 FAQs available here. Most recently, for instance, the new FAQS About Affordable Care Act Implementation (XXII) (FAQ XXII) published by the agencies on November 6, 2014 reiterates previous agency guidance indicating that tax basis for purchasing individual coverage in lieu of group health plan coverage. FAQ XXII, among other things, states

HRAS, health flexible spending arrangements (health FSAs) and certain other employer and union health care arrangements where the employer promises to reimburse health care costs: are considered group health plans subject to the Public Health Service Act (PHS Act) § 2711 annual limits, PHS Act § 2713 preventive care with no cost-sharing and other group market reform provisions of PHS Act §§ 2711-2719 and incorporated by reference into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) but
HRA or other premium reimbursement arrangements do not violate these market reform provisions when integrated with a group health plan that complies with such provisions. However, an employer health care arrangement cannot be integrated with individual market policies to satisfy the market reforms. Consequently, such an arrangement may be subject to penalties, including excise taxes under section 4980D of the Internal Revenue Code (Code).

FAQ XXII reaffirms and reinforces this prior guidance, stating “Such employer health care arrangements cannot be integrated with individual market policies to satisfy the market reforms and, therefore, will violate PHS Act sections 2711 and 2713, among other provisions, which can trigger penalties such as excise taxes under section 4980D of the Code. Under the Departments’ prior published guidance, the cash arrangement fails to comply with the market reforms because the cash payment cannot be integrated with an individual market policy.”

Another potential arises under the various tax and non-discrimination rules of the Code and other federal laws. For instance, Code sections 105, 125 and other Code provisions prohibitions against discrimination in favor of highly compensated or key employees could arise based on the availability of options or enrollment participation. Historically many have assumed that these concerns could be managed by treating the premiums or value of discriminatory coverage as provided after-tax for highly compensated or key employees. However IRS and Treasury leaders over the past year have made statements in various public meetings suggesting that the IRS does not view this as a solution. Of course, FAQ XXII also highlights the potential risks of underwriting or other practices of offering individual or other coverage in a manner that discriminates against disabled, elderly or other employees protected against federal employment discrimination, Medicare, Medicaid, veterans or other federal employment or related laws.

In addition to confirming that the arrangement itself doesn’t violate specific Code or other requirements, employers and others responsible for structuring these arrangements also should exercise care to critically evaluate and document their analysis that the options offered are suitable. Like other employee benefit arrangements, ERISA generally requires that individual or group products offered by employers, unions or both be prudently selected and managed. Employers sponsoring or considering sponsoring these arrangements should expect that the DOL will expect that each product or benefit option offered be prudently selected in accordance with ERISA’s rules. Compensation arrangements for the brokers and consultants offering these arrangements also should be reviewed for prudence, as well as to ensure that the arrangements don’t violate ERISA’s prohibited transaction rules. Eligibility and other enrollment and related administrative systems and information sharing also should be critically evaluated under ERISA, as well as to manage exposures under the privacy and security rules of the Health Insurance & Portability Act (HIPAA) and other laws.

As a part of this analysis, employers and others contemplating involvement in these arrangements also will want to critically review the vendor contracts and operating systems of the vendors that will participate in the program both for legal compliance, prudence for inclusion, prohibited transactions, and other legal compliance, as well as to ensure that the contract by its terms holds the vendor responsible for delivering on service and other expectations created in the sales pitch. In reviewing the contract, special attention should be given to fiduciary allocations, indemnification and standards of performance, business associate or other privacy and data security assurances required to comply with HIPAA and other confidentiality and data security requirements and the like. As HHS discovered with the rollout of the Healthcare.gov exchange, unctionality also plays a big role in the value proposition justified, the contractual commitments from the vendor also should cover expected operational performance and reliability as well as legal compliance and risk management.

About Author Cynthia Marcotte Stamer

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

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

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

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

About Solutions Law Press

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

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

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Posted by Cynthia Marcotte Stamer

Stamer Kicks Off Dallas HR 2015 Monthly Lunch Series With 2015 Federal Legislative, Regulatory & Enforcement Update

November 10, 2014

Human resources and other management leaders are watching Washington to see if the change in Congressional control resulting from the November 4, 2014 mid-term election ushers in a more management friendly federal legal environment. Since President Obama took office, the Democrats aggressive pursuit of health care, minimum wage and other federal pro-labor legislation, regulations and enforcement has increased management responsibilities, costs and liabilities.

Nationally recognized management attorney, public policy advisor and advocate, author and lecturer Cynthia Marcotte Stamer will help human resources and other management leaders prepare for 2015 when she speaks on “2015 Federal Legislative, Regulatory & Enforcement Update: What HR & Benefit Leaders Should Expect & Do Now” at the 2015 Dallas HR monthly luncheon series kickoff meeting on January 13, 2014.

About The Program

While November 4, 2014 Republican election victories gave Republicans a narrow majority in both the House and Senate when the new Congress takes office January 3, 2015, the new Republican Majority may face significant challenges delivering on their promises to move quickly to enact more business-friendly health care, guest worker, tax and other key reforms Republicans say will boost the employment and the economy.

While President Obama and Democrat Congressional leaders say they plan to work with the new majority, President Obama already is threatening to use vetoes, regulations and executive orders to block Republicans from obstructing or rolling back his pro-labor policy and enforcement agenda. When the new Congress takes office, the narrowness of the Republican Majority in the Senate means Republicans can’t block a Democratic filibuster or override a Presidential veto without recruiting some Democratic support.

As the Democrats and Republicans head into battle again, Board Certified Labor & Employment attorney and public policy advocate Cynthia Marcotte Stamer will help human resources and other management leaders get oriented for the year ahead by sharing her insights and predictions on the legislative, regulatory and enforcement agendas that HR, benefit and other business leaders need to plan for and watch in 2015. Among other things, Ms. Stamer will:

Discuss how management can benefit from monitoring and working to influence potential legislative, regulatory and enforcement developments when planning and administering HR and related workforce policies;
Discuss the key workforce and other legislative, regulatory and enforcement priorities and proposals Democrats and Republicans plan to pursue during 2015;
Share her insights and predictions about how the narrow Republican majority, Mr. Obama’s lame duck presidency and other factors could impact each Party’s ability to pursue its agenda
Share tips management leaders can use to help monitor developments and to help shape legislation, regulation and enforcement through Dallas HR, SHRM and other organizations as well as individually;
Learn tips for anticipating and maintaining flexibility to respond to legislative, regulatory and enforcement developments; and
More

To register or get more details about the program, DallasHR, or both, see http://www.dallashr.org.

About Ms. Stamer

Board certified labor and employment attorney, public policy leader, author, speaker Cynthia Marcotte Stamer is nationally and internationally recognized and valued for her more than 25 years of work advising and representing employers, insurers, employee benefit plans, their fiduciaries and advisors, business and community leaders and governments about workforce, employee benefits, social security and pension, health and insurance, immigration and other performance and risk management, public policy and related regulatory and public policy, management and other operational concerns.

Throughout her career, Ms. Stamer continuously both has helped businesses and their management to monitor and respond to federal and state legislative, regulatory and enforcement concerns and to anticipate and shape federal, state and other laws, regulations, and enforcement in the United States and internationally.

Well known for her leadership on workforce, health and pension policy through her extensive work with clients as well as through her high profile involvements as the Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment, a founding Board member of the Alliance for Health Care Excellence, a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA), and the State Bar of Texas leadership and other involvements with the ABA including her annual service leading the annual agency meeting of Joint Committee on Employee Benefits (JCEB) representatives with the HHS Office of Civil Rights and participation in other JCEB agency meetings, past involvements with legislative affairs for the Texas Association of Business and Dallas HR and others, and many speeches, publications, and other educational outreach efforts, Ms. Stamer has worked closely with Congress and federal and state regulators on the Patient Protection & Affordable Care Act and other health care, pension, immigration, tax and other workforce-related legislative and regulatory reforms for more than 30 years. One of the primary drafters of the Bolivian Social Security reform law and a highly involved leader on U.S. workforce, benefits, immigration and health care policy reform, Ms. Stamer’s experience also includes working with U.S. and foreign government, trade association, private business and other organizations to help reform other countries’ and U.S. workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Ms. Stamer also contributes her policy, regulatory and other leadership to many professional and civic organizations including as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, a Substantive Groups & Committee Member; a member of the leadership council of the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; the current Vice Chair of the ABA TIPS Employee Benefit Committee, and the past Coordinator of the Gulf Coast TEGE Council TE Division.

The publisher and editor of Solutions Law Press, Inc. who serves on the Editorial Advisory Boards of Employee Benefit News, HR.com, InsuranceThoughtLeadership.com and many other publications, Ms. Stamer also is a prolific and highly respected author and speaker, National Public Radio, CBS, NBC, and other national and regional news organization, Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Telemundo, Modern Healthcare, Business Insurance, Employee Benefit News, the Employee Benefits News, World At Work, Benefits Magazine, InsuranceThoughtLeadership.com, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, CEO Magazine, CFO Magazine, CIO Magazine, the Houston Business Journal, and many other prominent news and publications. She also serves as a planning faculty member and regularly conducts training and speaks on these and other management, compliance and public policy concerns for these and a diverse range of other organizations. For additional information about Ms. Stamer, see www.cynthiastamer.com.

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

New DOL, IRS & HHS FAQ Confirms Employers Can’t Pay, Use HRAs to Reimburse Employees For Individual Policy Premiums

November 6, 2014

Employer and other sponsors of healthcare reimbursement arrangements (HRAs), health flexible spending arrangements (Health FSAs) or other arrangements that reimburse employees for health premiums, their fiduciaries, insurers and administrators should re-evaluate the defensibility of these arrangements in light of supplemental guidance about the treatment of these arrangements under the annual limits, preventive care without cost-sharing and other Patient Protection & Affordable Care Act (ACA) group market reform rules, in the new FAQS About Affordable Care Act Implementation (XXII) (FAQ XXII) published November 6, 2014. It

FAQ XXII confirms that employers can’t reimburse employees on a pre-tax or after-tax basis for purchasing individual coverage in lieu of group health plan coverage as promoted by various vendors and others.

Employers Can’t Reimburse Employees For Individual Premiums

Concerning employer reimbursement of employees for premiums to purchase individual coverage, FAQ XXII makes clear that the Departments object to this practice. FAQ XXII makes clear that the Departments consider ACA’s market reforms to outlaw any arrangement pursuant to which an employer provides cash reimbursement to employees for the purchase of an individual market policy, regardless of whether the reimbursement is paid on a pre- or after-tax basis. According to the FAQ XXII, the Departments view any such employer’s payment arrangement part of a plan, fund, or other arrangement established or maintained for the purpose of providing medical care to employees regardless if the employer treats the money as pre-tax or post-tax to the employee that is group health plan coverage subject to the market reform provisions of ACA.

This position is consistent with a series of previous guidance that the Departments have published previously in which the Departments have stated, among other things, that:

Health reimbursement arrangements (HRAs), health flexible spending arrangements (health FSAs) and certain other employer and union health care arrangements where the employer promises to reimburse health care costs: are considered group health plans subject to the Public Health Service Act (PHS Act) § 2711 annual limits, PHS Act § 2713 preventive care with no cost-sharing and other group market reform provisions of PHS Act §§ 2711-2719 and incorporated by reference into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code);
HRA or other premium reimbursement arrangements do not violate these market reform provisions when integrated with a group health plan that complies with such provisions. However, an employer health care arrangement cannot be integrated with individual market policies to satisfy the market reforms. Consequently, such an arrangement may be subject to penalties, including excise taxes under section 4980D of the Internal Revenue Code (Code).

See, DOL Technical Release 2013-03; IRS Notice 2013-54; Insurance Standards Bulletin, Application of Affordable Care Act Provisions to Certain Healthcare Arrangement; IRS May 13, 2014 FAQs available here.

Code § 105 Reimbursement Plan Can’t Pay For Individual Policies

FAQ XXII also confirms the Departments’ view that arrangements where a vendor markets a product to employers claiming that employers can cancel their group policies, set up a Code section 105 reimbursement plan that works with health insurance brokers or agents to help employees select individual insurance policies, and allow eligible employees to access the premium tax credits or other HRA dollars to pay for Marketplace coverage are illegal.

According to FAQ XXII, these arrangements are problematic for several reasons including the following:

The arrangements themselves group health plans. Therefore, employees participating in such arrangements are ineligible for premium tax credits (or cost-sharing reductions) for Marketplace coverage. The mere fact that the employer does not get involved with an employee’s individual selection or purchase of an individual health insurance policy does not prevent the arrangement from being a group health plan. DOL guidance indicates that the existence of a group health plan is based on many facts and circumstances, including the employer’s involvement in the overall scheme and the absence of an unfettered right by the employee to receive the employer contributions in cash.12

Under DOL Technical Release 2013-03, IRS Notice 2013-54, and the two IRS FAQs addressing employer health care arrangements, such arrangements are subject to the market reform provisions of the Affordable Care Act, including the PHS Act § 2711 prohibition on annual limits and the PHS Act § 2713 requirement to provide certain preventive services without cost sharing. Such employer health care arrangements cannot be integrated with individual market policies to satisfy the market reforms and, therefore, will violate PHS Act §§ 2711 and 2713, among other provisions, which can trigger penalties such as excise taxes under Code § 4980D.

ACA & HIPAA Prohibit Employers From Offering Only High Risk Employees Cash In Lieu of Health Coverage

FAQ XXII also confirms the Department’s position that an employer violates the ACA provisions of PHS Act § 2705, ERISA § 715 and Code § 9815, as well as the Health Insurance Portability & Accountability Act (HIPAA) nondiscrimination provisions of ERISA section 702 and Code § 9802 prohibiting discrimination based on one or more health factors if it offers selectively only to employees with high claims risk a choice between enrollment in its standard group health plan or cash. FAQ XXII clarifies that while the Departments’ regulations allow more favorable rules for eligibility or reduced premiums or contributions based n an adverse health factor (sometimes referred to as benign discrimination), in the Departments’ view, this position does not extend to cash-or-coverage arrangements offered only to employees with a high claims risk. Accordingly, FAQ XXII states such arrangements will violate the nondiscrimination provisions, regardless of whether (1) the cash payment is treated by the employer as pre-tax or post-tax to the employee, (2) the employer is involved in the selection or purchase of any individual market product, or (3) the employee obtains any individual health insurance.

Beyond these concerns stated in FAQ XXII, employers and others contemplating offering such a choice also should discuss potential exposures under the Americans With Disabilities Act (ADA) and, depending on the nature of the condition, Medicare law.

In light of this new guidance and previous guidance published by the Departments, employers and others sponsoring or contemplating engaging in these arrangements are encouraged to contact competent counsel for assistance in understanding the potential concerns raised by involvement in these practices and their resolution.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Review Health Plans With Reference-Based Reimbursement Designs Under New Agency FAQ Guidance

November 6, 2014

Employer and other sponsors, insurers and administrators of non-grandfathered group health plans that pay a fixed amount for a particular procedure (for example, a knee replacement) where network providers have agreed to accept that referenced amount as payment in full (“reference-based pricing”) should verify their use of these practices complies in design and administration with the additional guidance on the Patient Protection & Affordable Care Act (ACA) out-of-pocket maximum rules in the new FAQs About Affordable Care Act Implementation (Part XXI) (FAQ XXI) published October 10, 2014 and other FAQs on the allowable use of reference-based pricing jointly published by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments).

As a part of the annual cost-sharing limits enacted as part of ACA, Public Health Service (PHS) Act section 2707(b) requires non-grandfathered group health plans to have individual’s maximum out-of-pocket (MOOP) limit for essential health benefits of not more than $6,600 for self-only coverage and $13,200 for coverage other than self-only coverage.

In addressing the use of reference-based pricing and other similar arrangements in earlier FAQs, the Departments expressed concern that some plans might misuse these provisions as a subterfuge for circumventing ACA’s cost-sharing limitations. At the same time, the Departments also acknowledge that properly used, reference-based pricing arrangements could help promote access to quality services on a more affordable basis for plan participants. Accordingly, the Departments in earlier FAQ guidance stated that pending further guidance the Departments would not treat a large group market plan issuer or self-insured group health plan that uses a reference-based pricing design as failing to comply with the MOOP requirements of PHS Act § 2707(b) solely because the plan or issuer treats providers that accept the reference amount as the only in-network providers, as long as the plan or issuer uses a reasonable method to ensure that it offers adequate access to quality providers but solicited comments on the standards that should apply to ensure that plans using reference-based pricing provide meaningful access to medically appropriate, quality care to prevent these arrangements’ use as a subterfuge to avoid ACA’s MOOP limits. See e.g. Affordable Care Act Implementation FAQs, Part XII, Q2; See Affordable Care Act Implementation FAQs, Part XVIII, Q2-Q5; Affordable Care Act Implementation FAQs, Part XIX, Q2-Q4; Affordable Care Act Implementation FAQs, Part XIX, Q4;

FAQ XXI published October 10, 2014 follows up on and supplements this prior guidance on reference-based pricing designs as they relate to ACA’s MOOP limitations. With regard to reference-based pricing, FAQ XXI indicates:

FAQ provides more insights of the circumstances that the Departments view as required to ensure that reference-based pricing arrangements comply with ACA’s MOOP limit rules. According to FAQ XXI, pending future guidance, for purposes of enforcing PHS Act section 2707(b)’s MOOP rules, the Departments will consider if the plan makes appropriate disclosures, the type of service subject to reference-based pricing, the plan’s arrangements for ensuring reasonable access, quality standards, and providing appropriate exceptions, and all other facts and circumstances when evaluating for purposes of enforcing ACA’s MOOP and other cost-sharing limitations whether a plan’s reference-based pricing design (or similar network design) that treats providers that accept the reference-based price as the only in-network providers and excludes or limits cost-sharing for services rendered by other providers is using a reasonable method to ensure adequate access to quality providers at the reference price.

Additionally, FAQ XXI also provides some insights about how the Departments intend to apply this facts and circumstances test. For instance, FAQ XXI states that the Departments expect plans using reference-based pricing designs to have:

Standards to ensure that the network is designed to enable the plan to offer benefits for services from high-quality providers at reduced costs, and does not function as a subterfuge for otherwise prohibited limitations on coverage;

Procedures to ensure that an adequate number of providers that accept the reference price are available to participants and beneficiaries;
Appropriate carve outs to meet ACA’s requirements about emergency services and other federal mandates;
Procedures to ensure that an adequate number of providers accepting the reference price meet reasonable quality standards;
An easily accessible exceptions process, allowing services rendered by providers that do not accept the reference price to be treated as if the services were provided by a provider that accepts the reference price if access to a provider that accepts the reference price is unavailable within a reasonable wait time or travel distance, the quality of services with respect to a particular individual could be compromised with the reference price provider or the like; and
Provides appropriate disclosures.

Concerning the Departments expectations about the disclosures that plans using reference-based pricing should make, FAQ XXI indicates that plans should provide the following disclosures regarding reference-based pricing (or similar network design) to plan participants free of charge.

Automatically in the plan’s summary plan description or another similar document should provide information regarding the pricing structure, including a list of services to which the pricing structure applies and the exceptions process.
Upon request provide a list of providers that will accept the reference price for each service; a list of providers that will accept a negotiated price above the reference price for each service; and information on the process and underlying data used to ensure that an adequate number of providers accepting the reference price meet reasonable quality standards.

FAQ XXI also cautions that its provisions only address the Department’s treatment of reference-based pricing as it relates to ACA’s cost-sharing requirements, not other requirements of ACA or other provisions of law, and that the Departments plan to monitor the use of reference-based pricing and may provide additional guidance in the future, including guidance relating to requirements other than ACA’s cost sharing requirements.

Given the Guidance in FAQ XXI and the Departments previous FAQs, employers and other sponsors, insurers, and administrators of non-grandfathered health plans using reference-based pricing or other similar designs will want to both ensure that their summary plan descriptions and other communications included the expected disclosures as well as to confirm that their arrangements squarely meet the existing guidance as well as monitor developments for new guidance. Among other things, this review should include a documentation of their prudent review and analysis of the adequacy of the plan and plan disclosures, network access, exception procedures and other required terms and operating procedures.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

IRS Raises Health FSA Contribution Limit For 2015

November 5, 2014

On Friday, October 31, 2014, the Internal Revenue Service announced that the new 2015 health plan flexible spending account limit will rise from $2,500 to $2,550. This change takes effect January 1st. Employers, plan administrators and others involved in the administration of these arrangements may want to update plan documents and associated communications quickly to allow employees to take advantage of this increased limit.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Supreme Court Delays Deciding Availabilities of ACA Subsidies For Coverage Purchased On Federal Exchange

November 3, 2014

The Supreme Court apparently still has not decided whether it will hear the appeal filed by plaintiffs in King v. Burwell that challenges the legality of the Obama Administration’s plan to pay Patient Protection and Affordable Care Act (ACA) premium subsidies to consumers living in those states that have declined to establish their own state exchanges under ACA who buy health care coverage from the Federal health care exchange. Despite discussing whether to hear the appeal last week, the Justices did not include King v. Burwell on the list of appeals scheduled for hearing published by the Supreme Court today. Instead, the Justices put off deciding whether to hear the appeal for now by relisting it.

Plaintiffs in King v. Burwell are asking the Supreme Court to set aside the July, 2014 ruling by the 4^th Circuit ruling that ACA allows the Administration to pay ACA subsidies to individuals enrolling in health care coverage through either a state exchange or the Federal exchange. While the Obama Administration argues ACA allows payment of premium subsidies regardless of whether the coverage comes through a state exchange or a federal exchange, the King v. Burwell plaintiffs argue that language in the ACA law that provides for subsidies for Americans who enroll “through an Exchange established by the State” prohibits payment of the subsidies for coverage purchased via the federal exchange. Since ACA relies heavily on the payment of subsidies to help make health care coverage affordable for millions of Americans earning less than 400 percent of poverty level and many states have not established their own exchanges, a Supreme Court decision in favor of the plaintiff/appellants would deal a devastating blow to ACA’s goal of making its mandated coverage affordable to Americans living in States without their own State exchanges.

The Supreme Court’s decision to hold off its agreement to decide the King v. Burwell appeal does not mean that the Justices won’t agree to decide the appeal at a later time. Many commentators believe the Supreme Court delayed accepting the appeal now because there is not currently any appellate court decision that conflicts with its holding since the full D.C. Circuit Court of Appeals vacated the Halbig v. Burwell ruling that ACA does not authorize subsidy payments for consumers from states without their own exchanges that buy coverage through the federal exchange previously issued by a panel of the D.C. Circuit Court of Appeals. The full D.C. Circuit Court of Appeals will not rehear and decide Halbig en banc. Oral arguments before the D.C. Circuit Court in Halbig now are scheduled December 17, 2014. If the Court of Appeals in Halbig or another Appeals Court reaches a conflicting decision to the 4^th Circuit decision in King v. Burwell, the Supreme Court likely will accept and schedule for hearing the King v. Burwell appeal. Pending these decisions, that delay leaves a cloud of uncertainty for Americans, their employers and others about whether subsidies will be available to help individuals earning less than 400% of the poverty level living in States that don’t have a State exchange to pay premiums for health care coverage bought through the Federal exchange.

About Author Cynthia Marcotte Stamer

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

For Added Information and Other Resources

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

For Help Or More Information

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

About Solutions Law Press

Comments Off on Supreme Court Delays Deciding Availabilities of ACA Subsidies For Coverage Purchased On Federal Exchange | 105(h), ACA, Cafeteria Plans, Employee Benefits, Employers, Employment Tax, ERISA, Fiduciary Responsibility, Health Plans, HIPAA, Human Resources, Premium Subsidies, Reporting & Disclosure | Tagged: Administrative Simplification, CMS, Health Benefits, Health Insurance, Health insurers, Health Plans, HHS, HPID, HPOES, TPAs | Permalink
Posted by Cynthia Marcotte Stamer

HHS Delays Enforcement Of HIPAA HPID Requirements

November 2, 2014

Health plans and other covered entities under the Health Insurance Portability & Accountability Act won’t have to begin using Health Plan Identifiers (HPIDs) and conducting transactions on the Department of Health & Human Services (HHS) Health Plan and Other Entity Enumeration System (HPOES) by November 5, 2014 after all.

On Halloween, HHS announced it is delaying until further notice enforcement of the HPID and related HPOES use requirements that had been scheduled to take effect on November 5, 2014 under the HPID final rule adopted by HHS as part of its Administrative Simplification electronic transactions rules under 45 CFR 162, Subpart E.

In its October 31, 2014 announcement of its enforcement delay of the HPID/HPOES requirements, the HHS Centers for Medicaid Services (CMS) Office of E-Health Standards and Services (OESS) stated this enforcement delay applies to all HIPAA covered entities, including healthcare providers, health plans, and healthcare clearinghouses. OESS is the HHS division responsible for enforcement of compliance with HIPAA’s standard transactions, code sets, unique identifiers and operating rules.

CMS’ announcement of the HPID and related requirements likely comes as welcome relief for health insurers, health plans, third party administrators and others who before the announcement were required to begin conducting transactions in accordance with the new requirements.

HHS has struggled to rollout the HPID and HPOES system over the past several months. It has made numerous refinements to the guidance and HPOES system. In recent months, it has issued an ongoing series of exemptions, corrections and other guidance in response to widespread glitches,users and others have expressed concern about problems in CMS’ regulations as well as the readiness of the HPOES system itself. As the November 5, deadline for implementation approached, as well as undertaken significant user and other outreach to the anticipated user community and others about the guidance and use of the system. See e.g. 11/5 Deadline For Many Health Plans To Get Health Plan ID From CMS, HHS Warns Insurers, TPAS Complete ACA Reinsurance & Risk Adjustment Edge Server Pre-Registration Steps By 9/27. Despite these and other efforts, covered entities and others have expressed confusion and other concern about the requirements and the readiness of the HPOES.

These and other concerns apparently lead HHS to delay enforcement of the requirements. On September 23, 2014, these and other concerns prompted the National Committee on Vital and Health Statistics (NCVHS), an advisory body to HHS, recommended that HHS rectify in rule making that all covered entities (health plans, healthcare providers and clearinghouses, and their business associates) not use the HPID in the HIPAA transactions. HHS says that its delay in enforcement of the HPID rule will allow HHS to review the NCVHS’s recommendation and consider any appropriate next steps before enforcement begins.

While health plans, health insurers and other covered entities have more time to come into compliance, they and their business associates need to continue to monitor HHS guidance for new developments and refinements to the system and its associated requirements and preparations to adapt their processes and systems so as to be positioned to comply with the HPID requirements when CMS lifts its enforcement delay.

About Author Cynthia Marcotte Stamer

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

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

For Added Information and Other Resources

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

For Help Or More Information

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

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Posted by Cynthia Marcotte Stamer

Careful Selection & Contracting With Vendors Critical Part of Health Plan Renewals

October 8, 2013

In the rush to finalize their health plan designs, contracts and documents for the upcoming 2014 plan year, employer and other health plan sponsors and fiduciaries should use care to review their insurance, broker, administrator and other health plan vendor agreements and vendor-provided plan documents, communications and processes to verify that vendor agreements and the plan designs, documentation, communications and processes they put in place appropriately hold service providers accountable, are legally compliant, appropriately tailored to defensably administer the plan in accordance with expectations, implement appropriate fiduciary and other performance and risk allocations and manage other exposures.

Many employer and other plan sponsors unknowingly expose themselves and management personnel participating in plan related decision-making to liability and costs by allowing costs or personality preferences to guide their vendor choices, rather than conducting a well-documented prudent review of their brokers and consultants, health plan insurers and other service providers, their bonding and other credentials, and the vendor-recommended plan designs, documentation, communications, credentials and processes.

Careful Vendor Selection & Contracting Foundation of Health Plan Compliance & Risk Management

As an initial matter, employers or others selecting plan vendors generally need to credential service providers to manage exposures under the fiduciary responsibility rules of the Employee Retirement Income Security Act of 1974 (ERISA). The fiduciary responsibility rules of ERISA generally impose upon the employer, member of its management or other parties possessing or exercising discretionary authority or control over the selection of plan service providers or vendors legal responsibility for the prudent selection and oversight of the service providers, their bonding and other credentials. Failing to conduct and keep documentation of this critical review can expose those participating in the vendor selection process to personal liability if plan funds or administration are mishandled as a result of the improper selection and oversight of the vendor.

Second, even when a vendor has a great reputation and credentials, employers or others also should carefully review the plan documentation, agreements, and communications provided by their brokers, administrative services providers, insurers and other health plan service providers to confirm that these materials are legally compliant, properly reflect the plan sponsors’ expectations about the plan terms, costs, and obligations, and otherwise designed to protect the employer’s goals and interests. While most plan sponsors and their management assume that the arrangements put in place by their broker, consultant or other service provider will take the necessary steps to properly document and implement the plan design, inadequacies in plan documentation, communications, administrative forms, processes and even plan design are common.

Even where plan vendors and advisors have the best of intentions, plan designs and documentation often fail to comply with applicable federal mandates, incorporate undesirable terms, or incorporate other provisions or deficiencies that unnecessarily leave the plan sponsor or members of its management exposed to avoidable fiduciary responsibility and liability for actions that the service provider is being paid to perform, exculpate vendors from liability for failing to competently perform responsibilities, expose the plan or its sponsors to unnecessary penalties or other costs, have other weaknesses that leave the sponsor or its management exposed to significant costs, liabilities or both.

For these reasons and others, employer and other plan sponsors should make time to conduct a well-documented documented review of the fiduciary eligibility, bonding and other credentials, services agreements, plan documentation, communications, processes, and procedures proposed by their health plan vendors before finalizing vendor selections and implementing those documents.

Credentialing & Vendor Contracting Tips

To help determine the scope of review and risk, most employer or other plan sponsors and their management will find it helpful to begin by critically evaluating the credentials and contracts of the health plan brokers, consultants and service providers. This review should both verify these advisors have the bonding and other legal credentials to qualify to perform the role desired under ERISA, the scope of services and accountability undertaken by the service providers, and the responsibilities for which the employer or other appointing party will continue to bear for the proper documentation and administration of the plan after hiring these vendors.

The following are some basic guidelines that management or others making health plan vendor and design decisions generally will want to consider and document as part of their analysis when reviewing proposed health plan vendors and the plan designs, documentation, communications and procedures.

A formal background check performed with the consent of the service provider should prove that the service provider and all of its employees and agents should be qualified to serve in a fiduciary role, are not disqualified or under investigation or other action that would disqualify them to act as a fiduciary or be bonded as required by ERISA, have no material complaint or dispute history with current or former clients or vendors, the Department of Labor, Department of Insurance, Internal Revenue Service or other relevant authorities, and have appropriate licensure, certifications, experience and reputation.
The service provider and its employees should enjoy an excellent reputation, verified by both broad background checks and detailed reference checks with both current and former clients, including clients who are not necessarily on the official reference list provided by the prospective service provider.
The service provider, its team, processes and procedures should have a history and currently be financially and operationally sound with significant experience and ability in the area.
The service provider should possess and be able to provide appropriate documentation of licensure, bonding, certifications and other credentials.
Due diligence should verify that the service provider has the skill, equipment, staff, procedures, processes, qualifications and other capabilities to properly and reliably perform the tasks contemplated prudently and in accordance with applicable legal responsibilities.

Beyond credentialing the service provider and its personnel, a plan sponsor or other party participating in the selection of a service provider or its recommended plan designs or services also should critically review the proposed services agreement to verify that it properly protects the expectations and interests of the plan sponsor, its plan fiduciaries and other associated parties participating in the plan design and vendor selection process. Among other things, a review of the contract generally should verify that the following criteria are met:

The contract should clearly document the scope of plan services that the service provider will provide under the agreement, the services that the service provider will not provide, and the services that the service provider only will provide at an additional charge, all charges and other requirements, and any other material expectations.
The contract should require the service provider to deliver plan services prudently in a manner that delivers the desired health benefits in a manner consistent with the purposes that justify the plan sponsor’s continued provision of the health benefits in accordance with the legal, operational, benefit and cost parameters applicable to the employer and its plan
The contract should provide plan services in a manner consistent with the plan sponsor’s overall plan design and related business practices.
The contract should deliver plan services in a manner consistent with the federal and state tax, labor, health care, contractual and other legal obligations applicable to the plan sponsor.
The contract should document the bonding, liability insurance, credentials and other qualifications of the service provider and require notification and appropriate recourse in the event of a material change in those credentials.
The contract should adequately minimize the exposure of the plan sponsor to legal liabilities arising from its participation in the contract, including fiduciary liability, vicarious liability, corporate negligence, and contractual liability.
The contract should establish and document the framework for an effective working relationship.
The contract should establish and document clear performance obligations applicable to the parties; the way compliance will be measured; and the consequences of any breach of those obligations.
The contract should incorporate the necessary provisions to fulfill the business associate agreement and other requirements concerning the creation, use, protection, access and disclosure of personal health information and other sensitive information about plan participants, beneficiaries and their costs needed to comply with the privacy and data security requirements of the Health Insurance Portability & Accountability Act privacy, security, breach notification, accounting and other individual rights, and business associate rules as updated in new regulations published in 2013 by the Office of Civil Rights.
The contract should provide access to necessary information including all records necessary to monitor and defend the plan, its design and administration, its compliance and prudent administration, including all disclosure, audit and reporting requirements.
The contract should define the breach notification and dispute resolution procedures, if any, that apply to disputes between the parties in a manner that does not unduly prejudice the plan sponsor’s ability to administer the plan; fulfill its legal obligations to covered persons and relevant regulators, or conduct other business activities.
The contract should clearly document the relationship between the standard plan provisions and the managed care procedures as well as fiduciary responsibility and accountability for, appropriately updated to comply with updated claims, appeals, and independent review organization requirements implemented since the enactment of the Patient Protection & Affordable Care Act, This should include a discussion regarding the extent to which the plan’s standard utilization, precertification, and medical necessity review procedures, coverage limitations and exclusions, proof of loss, and other provisions or replaced for care obtained under the managed care plan, as well as procedures and liability for deficiencies in administration resulting in liability to contracted physicians under managed care contracts pursuant to state law, loss of discounts, penalties or stop-loss coverage resulting from errors in administration and other federal and state liability risks of the plan, its fiduciaries and the employer.
The contract should require a third party administrator (TPA_ ensure that its provider contracts do not contain terms or provisions (other than as intended by the plan sponsor) that would undermine the enforceability of the plan sponsor’s benefit design.
The contract should require the service provider to ensure that contracting providers understand that their entitlement to payment or benefits depends upon satisfaction of all applicable terms and conditions of the plan and incorporate procedures to ensure the enforceability of these commitments.
The contract should bind the service provider to change its procedures in response to changes in the law or regulations that may be adopted from time to time.
The contract, if applicable, should require prudent processes to verify eligibility, coordinate coverage and perform other required functions.
The contract should include terms that preserve the subrogation rights of the plan.
The contract should require the TPA to warrant its authority to bind contracting providers and other parties whose cooperation and performance is required under the contract as part of the package of services to be delivered under the TPA’s proposal.
The contract should require the service provider to warrant that its agreement with other contracting providers does not conflict with the terms of the contract and ensures that these related providers are bound to perform in the manner contemplated by the contract.
The contract should require the service provider to perform all duties to prudently and in accordance with the law and hold the service provider legally accountable for liabilities and costs resulting from its omission to do so.
The contract should incorporate all performance guarantees including suitable accountability for noncompliance.
The contract should keep the right of the plan sponsor or fiduciary to terminate the vendor where prudent or otherwise legally required to fulfill responsibilities without inappropriate restrictions inconsistent with legal or operational responsibilities.
The contract should require appropriate indemnification or other accountability for non-performance with legal or other requirements and expectations.
The contract should include appropriate provisions to preserve access to plan administration and associated data as necessary to monitor plan costs, make future design decisions, and administer the plan and associated responsibilities even in the event of a termination of the vendor relationship.

While the credentialing questions and processes don’t eliminate all health plan related risks, they can help eliminate and manage many common legal and operational risks that often arising from health contracts and can help position an employer and members of its management to mitigate other potential exposures. The benefits of this careful credentialing and contract should be carried forward by careful crafting of plan documents and communications to match the allocations of responsibilities decided upon in the contracting process, the use of appropriate procedures to ensure that the appointed party handles those responsibilities and their associated communications, and the proper coordination of responses to potential problems in a manner that provides for defensible administration without blurring carefully crafted fiduciary and other role assignments.

In some instances, it may not be possible to secure the ideal contractual provisions. When this occurs, the documentation of the negotiations and the analysis of the advisability of proceeding with the contract, including any prudent backup arrangements needed to justify continuation should be maintained. Too often, brokers and consultants disparage contract negotiation and review recommendations of legal counsel by suggesting this is standard in the industry or that the request for negotiation and review suggests some lack of experience or other improper expectation by legal counsel or others suggesting the review. Such suggestions should be carefully scrutinized. While ideal provisions cannot always be obtained, it is rare that some improvement in the agreements is not possible. Even where this progress is not obtained, however, existing judicial and Labor Department enforcement clearly shows that the process of prudent review and analysis of proposed vendors and services is a required and necessary element of the vendor selection process for which parties making the decisions may face liability if they cannot prove the selection or retention was prudently conducted.

For Help or More Information

If you need help understanding or dealing with reviewing or negotiating your vendor agreements, or with other 2014 health plan decision-making or preparation, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker 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, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.

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 the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here . You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,” using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. 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. You can reach other recent updates and other informative publications and resources.

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For important information about this communication click here.

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Posted by Cynthia Marcotte Stamer

Exchange Enrollment Kicks Off Plagued By Government Shutdown, Other Challenges

October 1, 2013

Despite a showdown in Congress about health care reform’s future that threatens to bring funding of the U.S. government to a halt and a host of recent security and other concerns about the security and operational readiness of its enrollment platform and details of the implementation of the marketplaces in many states that will provide the offered coverage, the Obama Administration is touting today, October 1, 2013, as the first day that Americans can apply for enrollment in coverage offered through the health insurance exchanges that the Obama Administration prefers to refer to as “Marketplaces” slated to take effect under the Patient Protection & Affordable Care Act (ACA).

Obama Administration Touts October 1 Kickoff As New Age of Health Care

In a post shared across social media today,U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius announces, ” HealthCare.gov is open for business. Share this and let your friends and family know they can #GetCovered today at www.healthcare.gov!” In yet another post, Ms. Sebelius proclaims: See also http://www.hhs.gov/news/press/2013pres/10/20131001a.html.

“For the first time ever, today all Americans can begin shopping for quality health coverage that is affordable, and not be denied or charged more because they have a pre-existing condition.

The Health Insurance Marketplace is a new, simpler way for uninsured Americans and their families to purchase health insurance in one place. Coverage begins as early as January 1, 2014 for people enrolling by December 15, 2013. Today also marks the kick-off of outreach and enrollment activities in communities nationwide. Enrollment events will take place in a variety of local settings including public libraries, churches, festivals, sports events, and community meetings.”

Shutdown, Other Issues Raise Concerns

Ironically, while HHS continues to cheer its actions to implement ACA, a host of concerns cloud its implementation, including a federal government shutdown that also took effect October 1, 2013 as a result of a Congressional battle over the future of ACA and its funding. Over the weekend, the Senate refused to approve legislation passed by the House that would have provided for continued funding of U.S. government activities while denying funding and delaying provisions of ACA. Leaders in the Republican controlled House have indicated the House will not pass a budget without the carve out of funding and delay of ACA implementation. The dispute means that Congress has not approved continuing funding from the U.S. budget of the monies necessary for continued operations of many government functions, including HHS support for implementation of ACA and its enrollment. As a result, while HHS continues to bombard the media and social media with announcements touting enrollment, the main page of its website posts the following announcement in bright red text:

“Due to the lapse in government funding, only web sites supporting excepted functions will be updated unless otherwise funded. As a result, the information on this website may not be up to date, the transactions submitted via the website may not be processed, and the agency may not be able to respond to inquiries until appropriations are enacted. …

ATTENTION – HIGH VOLUME OF MEDIA REQUESTS

We are experiencing a high volume of media requests about the Affordable Care Act and the Health Insurance Marketplaces. If you are a reporter, we have assembled these tools to help you:

First try HealthCare.gov, which has comprehensive information about the Health Insurance Marketplace here.
At the start of Open Enrollment, watch for media advisories for the Centers for Medicare & Medicaid Services’ regular operational updates for reporters. The first update will be held as a conference call on the afternoon of Oct. 1. HHS will post transcripts of these briefings in the HHS Newsroom.
Email our media team here. If you have already contacted CMS’ media relations team, then HHS already has your request, and there is no need to email both agencies. Please be as specific as possible about your request and deadline.”

Beyond the government shutdown, other issues remain. Last month, HHS released a HHS Office of Inspector General Report that raises concerns about the adequacy of the electronic security of the portal that will be used to register and apply for enrollment through the site. See Observations Noted During The OIG Review Of CMS’s Implementation Of The Health Insurance Exchange—Data Services Hub. A host of other problems and concerns also have been reported. See e.g., Obamacare’s Insurance Exchange “Glitches” – The Foundry; Document Management Problems in New Insurance Markets Feds … ; ObamaCare ‘glitch‘ watch: Exchange site posts error messages; D.C.’s Obamacare fail: Prices won’t work until November; ObamaCare’s scope, rocky intro signals problems for Tuesday’s start.

As the January 1, 2014 promised commencement of coverage and individual mandates loomed, the Obama Administration’s delay of employer mandates while leaving individual mandate penalties against individuals who fail to purchase coverage, reports of employers cutting jobs, employee health coverage, or both, highly debated concerns about the cost, quality of coverage and other issues are fueling a showdown again in Congress, as many Americans grow increasingly concerned about what lies ahead.Are you concerned about whether health care reform preparations are on track or have other health care policy concerns. With the debate continuing to rage, many individuals and employers are watching carefully, as the debate holds funding of other key aspects of government operations hostage.

Join the discussion about health care reform and share your input by joining Project COPE: Coalition for Patient Empowerment here.

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

Sharing and promoting the use of practical practices, tools, information and ideas that patients and their families, health care providers, employers, health plans, communities and policymakers can share and offer to help patients, their families and others in their care communities to understand and work together to better help the patients, their family and their professional and private care community plan for and manage these needs is the purpose of Project COPE, The Coalition on Patient Empowerment & It’s Affiliate, the Coalition on Responsible Health Policy.

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

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

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

Other Helpful Resources & Other Information

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Comments Off on Exchange Enrollment Kicks Off Plagued By Government Shutdown, Other Challenges | Employee Benefits, Employers, Health Plans, HIPAA, Human Resources, Patient Protection and Affordable Care Act | Tagged: Data Security, Health Care Reform, Health Insurance Exchange, Health Insursance Marketplace, Health Plans, Helath Care Providers, HHS, HIE, HIPAA, Obama Care, Obamacare, OIG, Patient Protection & Affordable Care Act, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

Report Questions Security As HHS Invites Consumers To Set Up Personal Accounts To Prepare For Exchange Enrollment Period

August 6, 2013

Report Highlights Concerns About Security Of Sensitive Personal Information Americans Will Share With HHS Exchange Portal AS HHS Invites Consumers To Set Up Personal Accounts

The reported finding that the Department of Health & Human Services (HHS) has yet to complete the necessary security arrangements and testing for the web-portal Incomplete security arrangements and testing necessary to ensure the security of personal health and other information shared by consumers on the health insurance exchange Hub that Obamacare charged the HHS Centers for Medicare & Medicaid Services (CMS) with creating under Obama Care raises concerns about whether these security issues might undermine the security of the sensitive personal information that a consumer might share now or in the future when exploring or enrolling in health coverage options offered through the health insurance exchange.

On Monday, August 5, 2013, HHS sought to beef up interest and anticipation among Americans for the new health insurance exchange option by inviting consumers to prepare for the upcoming enrollment period scheduled to begin October 1, 2013 by creating their personal accounts on HHS’ Healthcare.gov website now.

HHS began encouraging Americans to the HHS website “healthcare.gov” to open a personal account, the first step to buying coverage through one of the health insurance exchanges that HHS is creating under the Patient Protection & Affordable Care Act reforms. See Consumers Can Take First Step To Enrolling In New Insurance Options Today. HHS is encouraging Americans to prepare for enrollment today by setting up their personal account on the HHS Website, Healthcare.gov. A HHS Twitter Tweet yesterday announced , “Today you can be 1 step closer to getting health ins. by creating your Marketplace account:.” The Healthcare.gov website main page now invites Americans to “[a]nswer a few questions to get some personalized info here.”

Unfortunately, HHS kicked off this campaign on the same day that the HHS’s Office of Inspector General (OIG) released a report titled Observations Noted During The OIG Review Of CMS’s Implementation Of The Health Insurance Exchange—Data Services Hub (Report) that raises questions about the adequacy of the current security of the data portal and whether HHS will complete the arrangements and testing to verify it appropriately safeguards the security of the sensitive personal information that consumers will share there when the enrollment period begins and thereafter.

Data shared by Americans as part of the process of exploring and enrolling in coverage through the health insurance exchanges will be collected and shared through a data security Hub that will host and transmit that data. The OIG Report raises clear concerns about the existing security arrangements that CMS has implemented to protect that data, as well as questions about whether CMS will complete the necessary arrangements to secure and protect that sensitive data before enrollment begins October 1.

The findings reported by OIG in the Report raise significant questions about whether Americans should accept the HHS invitation to establish their personal accounts now in anticipation of the October 1, 2013 beginning of the enrollment period for applying for coverage through the health insurance exchanges that would take effect on January 1, 2014.

The Report makes clear that OIG found reason for concern about the Hub security currently and whether these issues will be adequately addressed by the time the enrollment period begins on October 1, 2013.

OIG reports many critical tasks required to implement and test necessary security controls are unfinished. It states “[S]everal critical tasks remain to be completed in a short period of time, such as the final independent testing of the Hub’s security controls, remediating security vulnerabilities identified during testing, and obtaining the security authorization decision for the Hub before opening the exchanges. CMS’s current schedule is to complete all of its tasks by October 1, 2013, in time for the expected initial open enrollment period.”

While acknowledging that CMS has affirmed its commitment to complete and implement the necessary security arrangements before enrollment begins on October 1, 2013, the OIG Report also notes that CMS already has missed several critical target dates in its efforts to implement the required security measures.

The Report additionally states: “CMS is working with very tight deadlines to ensure that security measures for the Hub are assessed, tested, and implemented by the expected initial open enrollment date of October 1, 2013. If there are additional delays in completing the security assessment and testing, the CMS CIO may have limited information on the security risks and controls when granting the security authorization of the Hub.” (emphasis added).

The security concerns highlighted in the Report should raise questions about the adequacy of the security of information that an individual might enter on the Healthcare.gov portal in response to the invitation of HHS extended beginning yesterday.

The importance of the security concerns raised in the reports becomes evident when one considers that consumers establishing their personal accounts must “Choose your user name and password; Create security questions to add an extra layer of protecting your information.” While many may be temped to discount the significance of the security concerns because the information that HHS currently asks individuals to share when they create their personal accounts appears relatively harmless, it merits noting that the creation of the login and security password that will be used to control access to the personal account of registrants are among those initial elements. To the extent security deficiencies compromise the security of this information, these security deficiencies could undermine the security of the personal accounts and all of the information they contain.

The Report does not make clear whether the security issues identified in the Report could compromise logon and password security of the personal accounts established by consumers now or in the future. However, it bears noting that securing the logon and passwords used to access electronic resources containing sensitive personal health care information and establishing other appropriate safeguards to protect the security of personal health information is one of the key responsibilities that the Health Insurance Portability & Accountability Act (HIPAA) Security Rules require health plans, health care providers, health care clearinghouses and their business associates to protect and secure. Failure to implement and administer appropriate safeguards for logons and passwords could compromise all the sensitive data in the personal account now or in the future. Until questions about the security issues and their implications on the logon, password and other information associated with personal accounts are established, Americans concerned about the security of their personal information may want to hold off entering data in response to the HHS’s invitation. Additionally, Americans concerned about these and other security issues also may want to share their feedback with HHS and members of Congress.

Are you concerned about whether health care reform preparations are on track or have other health care policy concerns. Tell us what you think by responding to our poll.

Join the discussion about health care reform and share your input by joining Project COPE: Coalition for Patient Empowerment here.

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

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Posted by Cynthia Marcotte Stamer

OCR 1st HIPAA Privacy, Security & Breach Notification Compliance Audits Begin

November 9, 2011

The kickoff of a new compliance audit pilot program provides another reason for health care providers, health plans, healthcare clearinghouses and their business associates to get serious about compliance with the privacy, security and data breach requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

OCR Pilot Audit Program Begins

On November 8, 2011, the Office of Civil Rights (OCR) of the Department of Health & Human Services (HHS) announced that it will begin auditing HIPAA compliance this month under a new pilot program.

As amended by the American Recovery and Reinvestment Act of 2009 in Section 13411 of the HITECH Act, requires HHS to provide for periodic audits to make sure covered entities and business associates are complying with the HIPAA Privacy and Security Rules and Breach Notification standards. To carry out this mandate, OCR is piloting a program to perform up to 150 audits of covered entities to assess privacy and security compliance between November 2011 and December 2012.

The commencement of OCR HIPAA compliance audits is yet another sign that covered entities and their business associates should get serious about HIPAA compliance. The audit program serves as a new part of OCR’s health information privacy and security compliance program. While OCR says that it presently views the pilot audits as primarily a compliance improvement tool, this does not mean violators should expect a free walk.

Even before the impending audits, HIPAA Privacy exposures of covered entities for failing to comply with HIPAA already had risen significantly. Earlier this year, OCR imposed a $4.3 Million Civil Money Penalty (CMP) against Cignet Health of Prince George’s County (Cignet) for violating HIPAA. Meanwhile, the Department of Justice has secured several criminal convictions or pleas under HIPAA’s criminal provisions. Under amendments made by the HITECH Act, state attorneys general also now are empowered to bring civil lawsuits against covered entities and business associates that commit HIPAA violations that injure citizens in their state under certain circumstances. Eventually, individuals injured by HIPAA violations also will get the right to share in a portion of certain HIPAA recoveries.

These and other audit and enforcement activities send a strong message that covered entities and their business associates need to get serious about HIPAA compliance. As stated by OCR Director Georgina Verdugo when announcing the Mass General Resolution Agreement, “To avoid enforcement penalties, covered entities must ensure they are always in compliance with the HIPAA Privacy and Security Rules,” Verdugo added, “A robust compliance program includes employee training, vigilant implementation of policies and procedures, regular internal audits, and a prompt action plan to respond to incidents.” Learn more here.

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

If you need assistance monitoring federal health reform, policy or enforcement developments, or to review or respond to these or other health care or health IT related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, can help.

Vice President of the North Texas Health Care Compliance Professionals Association, a member of the American College of Employee Benefit Counsel, Past Chair of the ABA RPTE Employee Benefits & Other Compensation Arrangements Group, 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 extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies. Ms. Stamer also regularly helps clients deal with OCR and other agencies, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. Her insights on the required “culture of compliance” with HIPAA are frequently included in medical privacy related publications of the Atlantic Information Service, Modern Health Care, HealthLeaders and many others. Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here or may contact her at (469) 767-8872 or via e-mail here.

You can review other selected publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here.

Other Resources

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

About Solutions Law Press

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

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Comments Off on OCR 1st HIPAA Privacy, Security & Breach Notification Compliance Audits Begin | Data Security, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Internal Controls, Internal Investigations, Patient Empowerment, Privacy, Tax | Tagged: Data Breach, Health Care Provider, Health Plans, HHS, HIPAA, OCR, Privacy, Privacy Rules | Permalink
Posted by Cynthia Marcotte Stamer

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