Federal Government Issues New “Proposed” Guidance and Modifications on SBC Regulations

December 29, 2014 at 11:28 am | Posted in Federal Laws, Regulations | Leave a comment
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Federal Government Issues New “Proposed” Guidance and Modifications on SBC Regulations with Proposed Effective Date of September 1, 2015

    Last week DOL, Treasury and HHS (“the Departments”), issued 127 pages of proposed regulations, as well as a new set of proposed SBC templates, instructions, an updated uniform glossary, and other materials to incorporate some of the feedback “the Departments” received regarding the SBC regulations and the SBC template. “The Departments” stated that the proposals will provide guidance necessary to self insured plans and health insurers as they continue to issue SBCs, and will improve the SBC for employers, participants and beneficiaries, and individuals and dependents for use as a tool in making important decisions regarding their health coverage.

The proposed modifications clarify when and how a self insured plan or health insurer must provide an SBC, and streamline and shorten the SBC template while also adding certain additional elements that “the Departments” believe will be useful to consumers.

“The Departments” have invited public comments on the proposals until 60 days following December 30th. These proposals are not final and the proposed effective date is September 1, 2015.


The draft updated template, instructions, and supplementary materials are available at the following links:




HPID Requirements Apply to Self Insured “Stand Alone” Dental Plans

April 14, 2014 at 3:12 pm | Posted in ERISA, Federal Laws, Medical | Leave a comment
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Self Insured Dental Plans
Protector Group recently issued an email ALERT advising clients on whether or not they had a responsibility to obtain a Health Plan Identification (HPID) number from the federal government. The HPID requirement is not specific to medical plans alone. A self insured “stand alone” dental plan would also have to obtain a HPID since it satisfies the applicable definitions of health plan and medical care under ERISA and the Internal Revenue Code. On the other hand, if a self insured dental plan is part and parcel of a self insured health plan, only one HPID is necessary.  

Timing of Compliance
A self insured dental plan will need to obtain a HPID no later than November 5, 2014 if it has $5 million or more in “annual receipts.” If the self insured stand alone dental plan has less than $5 million in receipts, you are allowed another year (November 5, 2015) to obtain the HPID. The phrase “annual receipts” is understood to mean receipts of paid claims before the payment of stop-loss premiums exclusive of administrative costs.  

FSAs and HRAs
We are waiting for further government guidance re: the possible application of the HPID requirements to FSAs and HRAs.

HHS Announces New Round of 2014 HIPAA Compliance Audits: Are You Ready?

March 25, 2014 at 9:18 am | Posted in Compliance, Federal Laws, Health and Human Services, Health Care, HIPAA, Medical, Regulations | Leave a comment
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Last month, the HHS Office of Civil Rights (OCR) announced that there will be a more vigorous HIPAA audit effort in 2014 of HIPAA covered entities, including health plans, and their business associates. Speaking at a February 24th health care technology conference, Susan McAndrew, OCR deputy director for health information privacy said: “Hopefully in coming months you’ll see actual activity that will start up on the audit process.” OCR soon will launch a survey of 1,200 organizations as a first step toward selecting those to be audited. McAndrew also stated that the organizations to be surveyed were selected from “a large database,” and the survey seeks to verify if the entity is a suitable candidate for a HIPAA audit.

In a February 24th notice published in the Federal Register, OCR announced that it will survey “up to 1,200 HIPAA covered entities, including health plans, healthcare clearinghouses and certain healthcare providers, and business associates, to determine suitability for the OCR HIPAA audit program.” According to the notice, the survey “will gather information about respondents to enable OCR to assess the size, complexity and fitness of a respondent for an audit.” An OCR spokesperson says the survey will target approximately 800 covered entities and 400 business associates.

If you have not done so already, at a minimum, a plan sponsor should start to self assess: (1) whether it is a HIPAA covered entity; (2) whether it receives protected health information (PHI); and (3) assuming it receives PHI, has it taken timely and reasonable steps to secure the PHI in a manner consistent with HIPAA’s regulations?

Happy 40th Birthday, ERISA!

March 7, 2014 at 1:00 pm | Posted in Compliance, Department of Labor, ERISA, Federal Laws, Regulations | Leave a comment
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Protections for employee benefits moved forward 40 years ago this week with the March 4, 1974, Senate passage of the Employee Retirement Income Security Act. While it would be nearly six months until President Gerald Ford signed ERISA into law in September of that year, the bill marks congressional recognition of the sanctity of retirement, health care, and other employee benefits. ERISA also calls for the DOL to play the role of chief regulator and enforcer of the new protections. The DOL’s divisions…the Employee Benefits Security Administration…performs that important task.

Employer Pays $370,000 for GINA Violations Relating to Family Medical History Questions and ADA Infractions

January 23, 2014 at 10:06 am | Posted in Americans with Disabilities Act, Compliance, Employment Law, Federal Laws, Genetic Information Nondiscrimination Act (GINA), Regulations, Wrongful Termination | Leave a comment
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Founders Pavilion, a nursing rehabilitation center in Corning, New York, was sued for violations of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) by the EEOC last May. Founders had a practice of requesting family medical history as part of its post-offer, pre-employment medical exams of applicants. GINA, passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information.

The parties settled earlier this month, with Founders paying $370,000. This included a $110,400 payment to a fund for distribution to 138 individuals who were asked for their genetic information, and a payment of $259,600 to 5 individuals who the EEOC alleged were fired or denied hire in violation of the ADA.

A copy of the EEOC press release concerning the matter is here: http://www.eeoc.gov/eeoc/newsroom/release/1-13-14.cfm

Additional Delay in Discrimination Testing for Fully Insured Plans Reported

January 20, 2014 at 10:17 am | Posted in Compliance, Employment Law, Federal Laws, IRS, Regulations | Leave a comment
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According to the New York Times, the IRS will further delay the issuance of regulations that prohibit discrimination of eligibility or benefits “in favor of highly compensated individuals” in fully insured health plans.

Since the IRS has not yet determined how to measure health benefits — or which well-paid employees would be considered “highly compensated” — they plan to hold off on penalties, which are set at $100 per day for each employee negatively impacted. Similar discrimination regulations have been in place for self insured employers for more than 30 years.

“The IRS has not announced any new or additional information on this issue,” IRS spokesperson Michelle Eldridge said in a statement. “The New York Times story refers to IRS Notice 2011-1, which was released to the press on December 22, 2010. That Notice stated that the sanctions under Public Health Service Act Section 2716 will not apply until after generally applicable guidance is issued, because the statute requires regulatory detail in order to operate properly.”

“Work on that guidance continues, taking into consideration comments received from the public. Any suggestion that there is a new delay is misleading,” Eldridge said.

Dermatology Clinic Pays $150,000 HIPAA Fine for Lost Thumb Drive with Unencrypted Patient Information

December 30, 2013 at 10:26 am | Posted in Compliance, ePHI, Federal Laws, Health and Human Services, Health Care, HIPAA, Regulations | Leave a comment
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The HHS Office of Civil Rights (OCR) reports that a Concord, MA, dermatology clinic has agreed to pay a $150,000 fine as a settlement of  alleged violations of HIPAA privacy, security, and breach notification provisions. OCR announced that: “This case marks the first settlement with a covered entity for not having policies and procedures in place to address the breach notification provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA).” The clinic lost, and never recovered, an unencrypted thumb drive with protected health information for approximately 2,200 patients.

The OCR investigation concluded that the clinic did not (1) conduct an accurate and thorough analysis of the potential risks and vulnerabilities to the confidentiality of ePHI as part of its security management process; and (2) did not fully comply with requirements of the breach notification rule to have in place written policies and procedures and train workforce members. In addition to paying the $150,000 fine, the clinic also agreed to create a corrective action plan consisting of a risk analysis and risk management components to address and mitigate any additional potential security risks and vulnerabilities.

The resolution agreement and press release can be found on the OCR website at http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/apderm-agreement.html

U.S. Supreme Court to Address Constitutionality of Affordable Care Act’s Contraception Mandate On Private Employers

November 26, 2013 at 1:04 pm | Posted in Affordable Care Act, Compliance, Creditable Coverage, Essential Health Benefits, Federal Laws, Health Care, Medical, PPACA, Regulations, Wellness | Leave a comment
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The Supreme Court announced today that it will accept for hearing and decision the constitutional challenge to the Affordable Care Act’s (ACA) contraception mandate as it applies to private employers who have a religious objection to the mandate. The contraception mandate is part of one of the ten required health essential benefits (women’s preventive health services) required of health plans under ACA.

There is currently a disagreement among the federal Circuit Courts of Appeals as to its constitutionality. It is reported that the hearing will be this spring.

DOL Affordable Care Act Compliance Assistance Webcasts Available to Public

November 22, 2013 at 10:50 am | Posted in Affordable Care Act, Compliance, Department of Labor, Federal Laws, Health and Human Services, Health Care, Health Insurance Exchanges, Health Insurance Marketplace, Medical, PPACA, Regulations | Leave a comment
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On November 20, DOL Assistant Secretary for Employee Benefits Security (EBSA) Phyllis C. Borzi testified on the Affordable Care Act implementation before the Senate Entrepreneurship and Small Business Committee. Borzi joined fellow officials from the Department of Health and Human Services and Small Business Administration in updating the Committee on efforts being made to reach employers with information about the law. She said that the current focus of the DOL was to assist with compliance as opposed to penalize for non compliance.

Among other things, Borzi also advised the Committee that (1) the EBSA Compliance Assistance toll free phone line (1-866-444-EBSA) was heavily utilized (47,000 inquiries) and EBSA staff was responding to calls from brokers, consumers, and business owners; (2) The EBSA Compliance Assistance webpage, which catalogs and updates all of the new compliance requirements, had registered over 1.5 million visitors in the past year; and (3) the EBSA had made its webcast titled “Complying With the Affordable Care Act” available to the public.

A link to the archived webcast is here:

IRS Liberalizes Section 125 Election Change Menu for Non-Calendar Year Plans to Allow “Transition Relief” for Participants to Drop Coverage and Elect Coverage Through an Exchange

November 1, 2013 at 11:28 am | Posted in Affordable Care Act, Cafeteria Plans, Compliance, Federal Laws, Flexible Spending Accounts, Health Care, Health Insurance Exchanges, Health Insurance Marketplace, IRS, Medical, PPACA, Regulations | Leave a comment
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The IRS has announced that it will allow, subject to an employer’s amendment of its non-calendar year cafeteria plan, the decision of an employee to change his/her Section 125 Cafeteria Plan health care election to drop coverage from his/her employer and obtain coverage through a health insurance exchange created under the Affordable Care Act.

According to the IRS: “An employer may amend its § 125 cafeteria plan to allow an employee who elected to salary reduce through the § 125 cafeteria plan to pay for accident and health plan coverage under the § 125 cafeteria plan with a non-calendar plan year beginning in 2013 to prospectively revoke or change his or her election with respect to the accident and health plan once, during a limited period (for example, the first month of 2014 only rather than the entire plan year) without regard to whether the employee experienced a change in status event described in Treas. Reg. § 1.125–4.”

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