New Plan Year, New Wellness Program – Some Things to Keep in Mind

As a follow-up to our recent blog Count Down to Open Enrollment – Some Quick Thoughts, below is a little more detail on how seemingly simple wellness program design changes can have significant legal consequences.

  • HIPAA – Employers feeling extra generous this plan year may want to increase their wellness program’s financial incentive.  It is important that such employers remain mindful of the limitations under HIPAA, i.e., 30% of the total cost of health plan coverage, or 50% for programs designed to prevent or reduce tobacco use.  As noted in our previous blog “Wellness Rules Under the ADA – Will There Ever Be Certainty?
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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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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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EEOC Proposed Regulations May Require Revisions to Your Tobacco Prevention Wellness Program

In our April 21 blog, Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, Nancy Campbell wrote about the release of the much-anticipated EEOC proposed regulations concerning wellness programs.  In her blog, Nancy briefly touched upon some of the differences between the EEOC proposed regulations and the final HIPAA wellness regulations issued by the Departments of Treasury, Labor, and Health and Human Services on June 3, 2013.

One of the most noteworthy differences between the two regulations is the treatment of the maximum permissible reward that employers can offer to employees under wellness programs designed to prevent or reduce tobacco use.  Read More ›

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HIPAA “Phase 2” Audits: Are You Ready?

The Civil Rights Office of the Department of Health and Human Services announced a “Phase 2” audit program in the Fall of 2014.  That audit program was delayed due to funding issues, but appears to be back on schedule for 2015.  These Phase 2 audits are expected to be more in depth and focused on reviewing procedures and documentation related to the areas of HIPAA security and privacy risk management, breach notification and Notice of Privacy Practices.  Although the early Phase 2 audits are expected to target Covered Entities (employers sponsoring self-insured group health plans), Health Care Providers and Clearinghouses, the audits are also expected to expand to include HIPAA Business Associates. Read More ›

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Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap

Recent studies indicate that wellness programs significantly improve the health of workers.  If only it were so easy to implement a wellness program . . .

As explained in our July 17, 2013 Benefits Update – Final Wellness Rules May Require Review of Existing Wellness Programs, final HIPAA wellness regulations were issued by the Departments of Treasury, Labor, and Health and Human Services (the “Departments”) on June 3, 2013 and apply to employer-sponsored group health plans for plan years beginning on or after January 1, 2014.  Wellness programs that are part of a group health plan must comply with the HIPAA wellness regulations, but additionally must comply with other provisions of state or federal law including, but not limited to the ADA, Title VII of the Civil Rights Act, and GINA. Read More ›

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November 5 Deadline to Obtain HPID Delayed by HHS

On October 31, 2014, HHS announced a delay, “until further notice,” in the enforcement of the regulations pertaining to Health Plan Identifiers (HPIDs) and their use in HIPAA standard electronic transactions.  For more information on the HPID requirements, please see our October 1, 2014 SW Benefits Update, “HIPAA Requires Many Health Plans to Obtain a Health Plan Identifier by November 5, 2014.”  This enforcement delay applies to all HIPAA-covered entities, including healthcare providers, health plans, and healthcare clearinghouses.

The decision to delay enforcement was based, in part, on a recommendation by the National Committee on Vital and Health Statistics (NCVHS), which is an advisory body to HHS.  Read More ›

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HIPAA Business Associates Agreements – Reminder of September 22 Deadline

On January 17, 2013, the U.S. Department of Health and Human Services (HHS) issued a final rule under HIPAA making substantial changes to the rules for vendors that provide services to HIPAA-covered plans, such as third-party administrators, pharmacy benefit managers and certain brokers – known in the HIPAA world as “Business Associates.” Under this final rule, Business Associates are required, for the first time, to comply with the HIPAA Security Rule, many provisions of the HIPAA Privacy Rule and are subject to direct enforcement by HHS. As a brief reminder, and as we discussed in our Employee Benefits Update 2013 End of Year Plan Sponsor “To Do” List Part 2 – Health and Welfare, existing agreements with Business Associates must be amended to comply with the requirements of this final rule on or before September 22, 2014. Read More ›

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