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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice.  U.S. Treasury Regulations require us to notify you that any tax-related material in this blog (including links and attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding tax penalties, and may not be referred to in any marketing or promotional materials.  While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Thursday
Nov062014

Complimentary Webinar to Review Recent Legal Issues with Wellness Programs

Join Richard Moon and Chris Lockman on Thursday, November 20, from 9:00 – 10:00 a.m. for a complimentary webinar that will provide a general overview of the final wellness program regulations and recent EEOC litigation attacking certain wellness programs. The DOL, HHS, and the Treasury Department have released detailed guidance explaining how wellness programs may be designed and operated in a manner that satisfies the nondiscrimination requirements of HIPAA. However, even an employer that has adhered to these regulations may not be insulated from EEOC enforcement activity and lawsuits brought under the ADA, Title VII or GINA. Recent litigation commenced by the EEOC brings these issues to the fore. Richard and Chris will explain the current state of affairs regarding wellness programs and offer recommendations for employers who wish to maintain compliant wellness programs while managing their exposure under the ADA, Title VII, and GINA.
 
Register for this webinar on the Verrill Dana website.

Monday
Nov032014

CMS Delays HPID Application Deadline 

On October 31, 2014, the Centers for Medicare & Medicaid Services (CMS) issued a statement delaying enforcement of the health plan identifier (HPID) requirement.  Specifically, Controlling Health Plans (CHPs) are no longer required to obtain HPIDs by the originally announced deadline of November 5, 2014, which has been delayed “until further notice.”  Because the duration of this enforcement delay is unknown, we recommend that CHP sponsors move forward with the application process to obtain HPIDs.  Details about the HPID requirement and the application process are available here.  We will continue to provide further updates on delayed enforcement of the HPID requirement on our blog, Employee Benefits Update.

Thursday
Oct162014

Are you Experienced? A Look at the HPID Application Experience 

Under final rules issued September 5, 2012 by the Department of Health and Human Services under HIPAA, nearly all employer group health plans are required to obtain a unique health plan identification number (HPID) by November 5, 2014.  (We summarize the final rules briefly here.)  Health plans with less than $5 million in annual receipts have until November 5, 2015 to comply.  With less than three weeks to go until the deadline, employers still have questions about the requirements and the application process.  From what we have heard from some clients, the application process can take at least a couple of days so don’t wait until November 5 to get started.   

Click to read more ...

Thursday
Aug072014

Deadline Approaches for Business Associate Agreement Compliance Updates

Employer group health plans and other covered entities that have not already amended business associate agreements (BAAs) to incorporate changes required by the Final Omnibus Rule must do so by September 22, 2014.  (You can read our prior blog post on the Final HIPAA Omnibus Rule here.)

In January 2013 the Department of Health and Human Services published the Final HIPAA Omnibus Rule.  Among other things, the Final Omnibus Rule expanded the scope of entities considered “business associates,” extended direct liability to business associates who fail to comply with certain HIPAA requirements, and required the addition of certain language to new and existing BAAs.  Specifically, the Final Omnibus Rule required that existing BAAs be amended and new BAAs be drafted to include (among other things) provisions requiring a business associate to: 

  • Comply with applicable provisions of the HIPAA security rule;
  • Ensure that any subcontractor creating, receiving, maintaining, or transmitting protected health information (PHI) on behalf of the business associate agrees in writing to the same restrictions and conditions that apply to the business associate with respect to such information;
  • Report to the covered entity breaches of unsecured PHI as required by the breach notification rules; and
  • To the extent the business associate carries out a covered entity’s obligations under the privacy rule, comply with the requirements of the privacy rule that apply to the covered entity in the performance of such obligations.

New and existing BAAs were required to comply with the Final Omnibus Rule by September 23, 2013, though parties with a BAA in place prior to January 25, 2013 were given the opportunity to delay amending the BAA for an additional year.  Specifically, if, prior to January 25, 2013 (the publication date of the Final Omnibus Rule), the covered entity and the business associate were parties to a BAA that complied with the prior provisions of the HIPAA rules and the BAA was not renewed or modified after March 25, 2013, the parties could delay amendment of the BAA until September 22, 2014. 

Employers who sponsor self-funded group health plans should review their existing BAAs to ensure that they comply with the Final Omnibus Rule.  (HHS has provided sample language.)  One final thought.  Since the Final Omnibus Rule makes clear that covered entities may be liable for the acts of their business associates functioning in an agent capacity, employers should consider adding language to their BAAs to affirmatively disavow any agency relationship with a business associate in appropriate cases.  This type of protective provision does not appear in the model language published by HHS, but competent legal counsel certainly can provide it.

Wednesday
Jul162014

2014 Mid-Year Supreme Court Case Review

The 2013-2014 term of the Supreme Court of the United States produced opinions that will have substantial effects on the design and administration of most employee benefits plans. This summary highlights three key decisions, one significant procedural ruling, and an emerging issue likely headed for Supreme Court review, all of which deserve the attention of employee benefits professionals.

Click to read more ...