2017 HIPAA Enforcement – Appears Not To Be Slowing Down

To state the obvious, there has been some uncertainty regarding how the Trump Administration will affect federal agency enforcement efforts.  However, at least, in regard to HIPAA Privacy and Security, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”), appears to be unchanging in its previous course.

In the first four months of 2017, OCR has already announced seven settlements with covered entities and business associates with fines totaling over $14 million.  For some context, OCR assessed over $23.5 million in 2016, which was a record-breaking year.  These settlements are in addition to Phase 2 of OCR’s Privacy, Security, and Breach Notification Audit Program, which started in 2016 and is likely still underway. Read More ›

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HIPAA Checkup – How Good Are Your Policies and Procedures?

Although it is not a new requirement, it is important and therefore worth a reminder:  HIPAA requires covered entities to establish and implement written policies and procedures that are consistent with its Privacy and Security Rules.

As discussed in an earlier blog, the U.S. Department of Health and Human Services, Office for Civil Rights (“OCR”) has begun its Phase 2 HIPAA Audit Program.  The Program will focus on the policies and procedures adopted and employed by covered entities and their business associates to meet the requirements of the Privacy, Security, and Breach Notification Rules.  Furthermore, if a group health plan is selected for an audit, it would have a very short time to produce its policies and procedures (i.e., 10 business days).  Read More ›

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Will the ACA Stay or Will it Go?

After surviving two Supreme Court cases and numerous repeal efforts, the Affordable Care Act (“ACA”) is in jeopardy again. Despite the law’s uncertainty, employers may want to continue their compliance efforts because: (1) the ACA is currently the law and there are significant penalties for noncompliance; and (2) for the reasons stated below complete repeal is anything but certain.

First, we do not know whether the law will be repealed outright.  Although Republicans control Congress, they do not have a supermajority in the Senate.  This means that, unless current filibuster law changes, Democratic Senators could block a bill to repeal the ACA entirely. Read More ›

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You Received a Health Insurance Marketplace Notice from HHS – Now What?

Take a deep breath.  The HHS Health Insurance Marketplace Notice (the “Notice”) may seem to be a nuisance, but it does not necessarily mean that you will be subject to employer shared responsibility penalties.

First, the IRS, not HHS, assesses employer shared responsibility penalties, and the IRS does so only after it provides employers with:  (1) a “certification” that one or more employees received a premium tax credit; and (2) an opportunity to respond to the certification.

Second, an individual may have incorrectly reported on his application that he was eligible for a premium tax credit (or cost-sharing reductions) because:  (1) he did not receive an offer of health coverage from you; (2) he did receive an offer of health coverage from you, but it was unaffordable or it failed to provide minimum value, or (3) he was in a waiting period and was unable to enroll in health care coverage.  Read More ›

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EEOC Final Rules on Wellness Programs and the ADA – Worth the Wait?

On May 16, 2016, the EEOC issued final rules that explain how the Americans with Disabilities Act (“ADA”) applies to employer sponsored wellness programs.   Although some may welcome the guidance, others may be frustrated because the rules are somewhat inconsistent with the rules under HIPAA, inconsistent with the court decisions under Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012) and EEOC v. Flambeau, Inc., 131 F. Supp. 3d 849 (W.D. Wis. 2015), and do not ensure compliance with other federal nondiscrimination laws (e.g., Title II of GINA or other Sections of Title I of the ADA). Read More ›

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Five Ways to Survive a Department of Labor (“DOL”) Health and Welfare Plan Investigation

DOL health and welfare plan investigations are on the rise. There are best practices for plans chosen for investigation:

 1.  Get Employee Benefits Counsel Involved Early.

The DOL investigation process generally starts with a letter from DOL requesting a long list of documents that range from plan documents and disclosures to financial documents (e.g., trust agreements and bank statements). This letter can be overwhelming, not only because of the sheer quantity of documents that must be produced in a relatively short time period, but also because many of the requests may be broad, vague, or even inapplicable to your plan.

Working with employee benefits counsel from the beginning may help you respond.  Read More ›

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A Wellness Win for Employers, But Will it Last?

As explained in our April 21, 2015 and May 9, 2015 blog posts, wellness programs that are part of a group health plan are subject to the HIPAA nondiscrimination rules, and other state and federal laws including, but not limited to the ADA, Title VII of the Civil Rights Act, and GINA.   Navigating the regulatory maze has been a challenge for employers, and the most recent struggles involve compliance with the ADA’s “voluntary” requirement. On December 30, 2015, the Federal District Court for the Western District of Wisconsin in Equal Employment Opportunity Comm’n v. Flambeau, Inc., bypassed the ADA’s voluntary rule and held that Flambeau’s wellness program complied with the ADA under an alternative exception –  the ADA’s safe harbor. Read More ›

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