HHS Announces Opening of Phase 2 HIPAA Audit Program
|
04/23/2016
|
By: Jason Lacey
|
The
HHS
Office
of
Civil
Rights
(OCR)
has
announced
the
opening
of
its
"Phase
2"
HIPAA
audit
program.
We
have
been
anticipating
this
program
for
some
time.
It
potentially
affects
all
HIPAA
covered
entities,
including
employer-sponsored
group
health
plans,
as
well
as
business
associates
of
those
covered
entities,
such
as
third-party
administrators
for
self-insured
health
plans.
The
purpose
of
the
audit
program
is
to
"assess
compliance"
with
the
HIPAA
privacy,
security,
and
breach
notification
rules.
Accordingly,
these
audits
will
be
directed
at
a
cross-section
of
HIPAA
covered
entities
and
business
associates,
rather
than
based
on
specific
complaints
or
news
reports.
Covered
entities
and
business
associates
that
are
potential
candidates
for
audit
will
be
contacted
by
email
(check
your
spam
filter!)
and
asked
to
complete
a
pre-audit
questionnaire.
Not
all
covered
entities
and
business
associates
that
go
through
the
pre-audit
process
will
be
selected
for
audit.
But
those
who
fail
to
respond
to
the
pre-audit
questionnaire
will
still
be
included
in
the
potential
audit
pool,
and
it
seems
fair
to
assume
that
a
failure
to
respond
may
increase
OCR's
interest
in
conducting
a
full-scope
audit.
Based
on
the
updated
audit
protocol that
OCR
is
using
to
train
its
auditors,
we
have
a
good
idea
what
OCR
will
be
looking
for
if
it
conducts
an
audit.
In
the
case
of
an
employer-sponsored
group
health
plan,
the
audit
is
likely
to
include
a
review
of
the
following:
- The
plan
document
(to
determine
whether
the
proper
HIPAA plan
language
has
been
adopted)
Continue Reading...
|
|
Supreme Court Limits Health Plan Reimbursement Rights
|
01/25/2016
|
By: Jason Lacey
|
The
U.S.
Supreme
Court
has
held
that
a
self-insured
health
plan
may
not
exercise
reimbursement
rights
against
a
plan
participant
after
settlement
proceeds
recovered
by
the
participant
from
a
third
party
have
been
spent
or
otherwise
“dissipated.”
In
the
case,
the
plan
paid
$120,000
toward
medical
expenses
incurred
by
the
participant
after
he
was
injured
by
a
drunk
driver.
The
participant
later
recovered
a
$500,000
settlement
from
the
drunk
driver.
The
plan
was
entitled
to
seek
reimbursement
of
$120,000
from
the
settlement,
but
it
did
not
take
adequate
steps
to
enforce
its
rights.
By
the
time
the
plan
brought
suit
to
enforce
its
right
to
reimbursement,
the
settlement
proceeds
had
been
paid
to
the
participant
and
were
gone.
The
plan
attempted
to
recover
the
$120,000
from
the
participant,
but
the
court
held
that
the
equitable
remedies
available
under
ERISA
did
not
include
a
right
to
obtain
payment
from
the
participant
after
the
settlement
dollars
were
no
longer
in
an
identifiable
fund.
The
take-away?
A
self-insured
health
plan
with
a
right
to
subrogation
or
reimbursement
must
assert
its
claim
while
the
proceeds
of
a
judgment
or
settlement
are
still
in
an
identifiable
fund,
such
as
the
trust
account
of
the
lawyer
representing
the
participant
in
the
personal-injury
action.
Otherwise,
there
may
be
nothing
left
from
which
to
seek
recovery.
A
copy
of
the
court's
opinion
is
available
here.
|
|
2016 Inflation Adjusted Amounts for HSAs and HDHPs
|
05/08/2015
|
By: Jason Lacey
|
The
IRS
has
released
the
2016
inflation-adjusted
amounts
for
health
savings
accounts
(HSAs)
and
high-deductible
health
plans
(HDHPs).
HDHP
Minimums
and
Maximums.
The
minimum
annual
deductible
for
an
HDHP
will
be
$1,300
for
self-only
coverage
and
$2,600
for
family
coverage.
These
amounts
have
not
changed
from
the
2015
amounts.
The
maximum
annual
out-of-pocket
for
an
HDHP
will
increase
to
$6,550
for
self-only
coverage
and
$13,100
for
family
coverage.
"Embedded"
ACA
Out-of-Pocket
Maximum.
The
Affordable
Care
Act
also
sets
out-of-pocket
maximums
for
non-grandfathered
plans.
For
2016,
the
ACA
maximum
will
be
$6,850
for
self-only
coverage
and
$13,700
for
family
coverage
(compared
to
$6,550
and
$13,100
for
HDHPs).
In
addition,
recent
HHS
guidance
provides
that,
beginning
in
2016,
the
self-only
ACA
out-of-pocket
maximum
must
be
"embedded"
within
the
family
ACA
out-of-pocket
maximum,
meaning
that
no
individual
may
be
subject
to
out-of-pocket
expenses
in
excess
of
the
self-only
maximum.
In
the
case
of
a
plan
intended
to
be
an
HDHP,
this
means
that
(1)
the
out-of-pocket
maximum
cannot
exceed
the
lower
maximum
applicable
to
HDHPs,
and
(2)
the
out-of-pocket
maximum
for
an
individual
covered
under
a
family
plan
cannot
exceed
the
ACA
maximum
for
self-only
coverage.
Example.
An
HDHP
for
2016
has
a
family
deductible
of
$13,100,
with
no
other
cost
sharing.
This
is
permissible
because
it
does
not
exceed
either
the
ACA
out-of-pocket
maximum
limit
($13,700)
or
the
lower
HDHP
out-of-pocket
maximum
limit
($13,100).
However,
the
plan
must
further
provide
that
no
member
of
the
family
will
be
required
to
contribute
more
than
$6,850
toward
Continue Reading...
|
|
CMS Indefinitely Delays HPID Implementation
|
11/01/2014
|
By: Jason Lacey
|
On
the
eve
of
the
deadline
for
large
controlling
health
plans
(CHPs)
to
obtain
an
HPID,
CMS
has
announced
that
it
is
indefinitely
delaying
enforcement
of
the
regulations
that
require
obtaining
an
HPID
and
using
the
HPID
in
covered
transactions.
The
announcement
is
effective
October
31,
2014
and
applies
“to
all
HIPAA
covered
entities,
including
healthcare
providers,
health
plans,
and
healthcare
clearinghouses.”
What
Does
This
Mean
for
Large
Health
Plans?
The
immediate
impact
of
this
announcement
appears
to
be
that
large
CHPs
are
no
longer
required
to
obtain
an
HPID
by
the
November
5,
2014
deadline.
Whether
or
when
they
may
be
required
to
do
so
in
the
future
will
depend
on
when
(or
if)
CMS
decides
to
begin
enforcing
the
regulations
again.
What
Does
This
Mean
for
Small
Health
Plans?
The
deadline
for
small
CHPs
to
obtain
an
HPID
was
November
5,
2015.
Technically,
that
deadline
has
been
suspended
as
well,
although
with
a
year
between
now
and
then,
it’s
possible
that
CMS
could
reverse
course
and
begin
enforcing
the
rule
again
before
then.
So
small
plans
should
monitor
the
status
of
the
rule,
but
likely
will
not
want
to
attempt
to
obtain
an
HPID
until
further
notice.
Where
Did
This
Come
From?
The
CMS
announcement
references
a
September
23,
2014
report
from
the
National
Committee
on
Vital
and
Health
Statistics
(NCVHS).
In
that
report,
the
NCVHS
unequivocally
recommended
that
covered
entities
not
begin
using
an
HPID
in
transactions
involving
health
plans.
The
report
argues
that
there
is
already
a
Continue Reading...
|
|
CMS FAQs Clarify HIPAA Health Plan Identifier (HPID) Requirement
|
10/13/2014
|
By: Jason Lacey
|
Health
plans,
including
some
employer-sponsored
plans,
face
a
looming
deadline
to
obtain
a
HIPAA
health
plan
identifier
(HPID).
There
have
been
many
questions
surrounding
this
requirement,
particularly
as
it
applies
to
employer-sponsored
plans.
Recent
FAQ
guidance
from
CMS
(here)
has
provided
some
key
clarifications,
although
questions
remain.
Here's
what
you
need
to
know.
Background.
HIPAA
requires
health
plans
and
other
covered
entities
to
engage
in
certain
covered
transactions
in
a
standardized
way.
This
is
sometimes
referred
to
as
the
HIPAA
"transactions
rule."
The
details
of
that
rule
are
beyond
what
can
be
addressed
here.
But
the
key
thing
to
understand
is
that
the
ACA
amended
the
transactions
rule
to
require
health
plans
to
obtain
a
specific
identifier
(the
HPID)
to
be
used
in
connection
with
covered
transactions.
Deadline.
For
plans
that
are
required
to
get
an
HPID,
the
deadline
is
November
5,
2014,
unless
the
plan
is
a
"small"
health
plan,
in
which
case
the
deadline
is
November
5,
2015.
Small
Health
Plan.
A
small
health
plan
is
a
plan
that
has
$5
million
or
less
in
annual
receipts.
The
CMS
FAQs
tell
us
that
annual
receipts
mean
premiums
paid
during
the
last
full
fiscal
year,
in
the
case
of
fully
insured
plans,
and
health
care
claims
paid
during
the
last
full
fiscal
year,
in
the
case
of
self-insured
plans.
Plans
that
are
partially
insured
and
partially
self-insured
combine
the
premiums
and
health
care
claims
paid
to
determine
their
total
annual
receipts.
Stop-Loss
Premiums.
It's
not
clear
whether
annual
receipts
are
intended
to
Continue Reading...
|
|
New Guidance Will Limit HRAs and Employer Use of Individual Market Coverage
|
09/16/2013
|
By: Jason Lacey
|
A
continuing
area
of
uncertainty
under
health
care
reform
has
been
the
treatment
of
health
reimbursement
arrangements
(HRAs)
and
other
arrangements
that
might
be
used
to
allow
employees
to
purchase
health
insurance
through
individual
policies
with
the
employer
subsidizing
some
or
all
of
the
cost.
A
new
notice
from
the
IRS,
HHS,
and
DOL
(here)
provides
some
clarity
on
these
-
and
some
related
-
issues.
Employer
Payment
Plans.
As
a
preliminary
matter,
this
guidance
gives
us
a
new
term:
"employer
payment
plan."
This
refers
to
an
arrangement
by
which
an
employer
provides
payment
or
reimbursement
of
individual
market
insurance
premiums
in
the
manner
described
in
an
old
Revenue
Ruling
(Rev.
Rul.
61-146).
Historically,
these
employer
payment
plans
have
been
permissible
and
have
allowed
employers
to
provide
pre-tax
subsidies
of
individual
market
coverage.
Integration
of
Plans
with
Individual
Market
Coverage.
A
concern
with
HRAs
and
employer
payment
plans
is
that
they
may
be
treated
as
violating
two
key
health
care
reform
mandates:
the
prohibition
on
annual
limits
and
the
requirement
to
provide
no-cost
preventive
care
services.
Previous
FAQ
guidance
(see
coverage
here)
said
that
HRAs
would
be
treated
as
satisfying
the
annual
limit
rule
if
they
were
"integrated"
with
other
coverage
that
satisfies
the
annual
limit
rule.
This
guidance
effectively
confirms
that
treatment
and
provides
a
similar
rule
for
preventive
care.
But
the
guidance
goes
on
to
say
that
HRAs
and
employer
payment
plans
may
not
be
treated
as
integrated
with
individual
market
coverage.
Thus,
an
HRA
or
employer
payment
plan
Continue Reading...
|
|
IRS Releases Initial Guidance on Same-Sex Spouses
|
08/29/2013
|
By: Jason Lacey
|
We
have
been
anticipating
guidance
from
the
IRS
on
the
treatment
of
same-sex
spouses
for
tax
and
benefit
purposes
in
light
of
the
Supreme
Court's
overturning
of
DOMA,
and
here
it
is.
Married
Anywhere.
Rev.
Rul.
2013-17
(here)
says
that
a same-sex
couple
validly
married
anywhere
(including
in
a
foreign
country)
will
be
recognized
as
married
for
federal
tax
purposes,
even
if
their
marriage
is
not
recognized
under
the
law
of
their
home
state.
In
other
words,
it’s
a
state-of-celebration
rule,
not
a
state-of-residence
rule.
All
Tax
Purposes.
The
rule
applies
for
all
tax
purposes,
including
employee
benefits.
So
in
addition
to
filing
joint
tax
returns,
same-sex
spouses
may
obtain
tax-free
coverage
for
each
other
under
health
or
cafeteria
plans
and
are
entitled
to
spousal
rights
under
401(k)
and
other
qualified
retirement
plans.
Also,
medical
expenses
incurred
by
one
spouse
in
a
same-sex
marriage
will
qualify
for
reimbursement
from
a
flexible
spending
account
or
health
savings
account
maintained
by
the
other
spouse.
Recognition
of
the
same-sex
marriage
may
present
an
issue
for
participants
in
dependent
care
assistance
plans,
because
the
spouse's
income
and
employment
must
now
be
taken
into
account.
Retroactivity.
Individuals
in
existing same-sex
marriages
may
go
back
and
claim
a
refund
for
taxes
on
any
imputed
income
that
resulted
from
coverage
of
a
same-sex
spouse
or
children
of
a
same-sex
spouse
under
a
health
or
cafeteria
plan.
Employers
may
also
be
able
to
obtain
refunds
of
employment
taxes
imposed
on
imputed
income.
The
refunds
are
limited
to
years
for
which
the
statute
Continue Reading...
|
|
Supreme Court Invalidates DOMA
|
06/26/2013
|
By: Jason Lacey
|
In
a
closely
watched
and
sharply
divided
opinion
today,
the
Supreme
Court
invalidated
the
federal
Defense
of
Marriage
Act
(DOMA)
and
its
directive
that
only
opposite-sex
spouses
may
be
recognized
as
spouses
for
purposes
of
federal
law.
Although
the
details
and
impact
of
the
decision
are
still
being
parsed
and
evaluated,
the
bottom
line
is
that
same-sex
couples
who
are
recognized
as
validly
married
under
state
law
are
entitled
to
be
recognized
as
spouses
for
purposes
of
federal
law.
Brief
Background.
The
case
involved
a
same-sex
couple,
Edith
Windsor
and
Thea
Spyer,
who
had
been
married
in
Canada
and
whose
marriage
was
recognized
as
valid
under
New
York
law,
where
they
lived.
Ms.
Spyer
died
and
left
her
estate
to
Ms.
Windsor,
who was
required
to
pay
federal
estate
tax
because,
under
DOMA,
she
could
not
rely
on
an
estate
tax
exception
that
allows
for
tax-free
transfers
of
property
between
spouses
at
death.
She
sued
for
a
refund
of
the
taxes,
claiming
DOMA
was
unconstitutional.
The
Court’s
Analysis.
Five
of
the
nine
Supreme
Court
justices
agreed
that
DOMA
was
unconstitutional
because
it
violated
the
equal
protection
rights
of
same-sex
individuals
who
were
recognized
under
state
law
as
validly
married.
The
Court
essentially
said
that
if
a
same-sex
couple
and
an
opposite-sex
couple
are
treated
the
same
under
state
law,
they
are
constitutionally
entitled
to
equal
treatment
under
federal
law.
Implication
for
Employee
Benefit
Plans.
The
case
has
many
implications
for
employee
benefit
plans.
For
health
plans,
qualifying
same-sex
spouses
that
are
covered
under
Continue Reading...
|
|
Supreme Court Affirms Health Plan Reimbursement Rights, With a Catch
|
04/22/2013
|
By: Jason Lacey
|
The
U.S.
Supreme
Court
issued
an
opinion
last
week
(U.S.
Airways
v.
McCutchen)
affirming
a
health
plan’s
right
to
enforce
express
plan
language
allowing
it
to
recover
benefits
paid
on
behalf
of
a
participant
when
the
participant
later
recovers
those
benefits
from
a
third
party.
But
the
court
created
a
new
wrinkle
with
respect
to
a
plan's
obligation
to
share
in
the
costs
of
that
recovery.
Background.
The
facts
of
the
case
are
fairly
straightforward.
An
employee
was
injured
in
a
car
accident,
and
the
plan
paid
$66,866
in
benefits
related
to
those
injuries.
The
employee
then
sued
the
individual
who
caused
the
accident
and
recovered
$110,000.
40%
of
the
recovery
went
to
the
employee’s
lawyer,
leaving
a
net
recovery
of
$66,000.
The
plan
claimed
it
was
entitled
to
the
remaining
$66,000
based
on
language
in
the
plan
giving
it
the
right
to
be
reimbursed
out
of
any
third-party
recoveries.
The
employee
resisted
paying
the
full
$66,000
to
the
plan
on
the
basis
that
it
would
be
unfair
for
the
plan
to
be
reimbursed
off
the
top
without
sharing
in
any
of
the
costs
of
the
recovery.
Plan
Terms
Control.
The
court
first
addressed
whether
general
equitable
principles
(fairness,
essentially)
could
override
the
express
terms
of
the
plan.
In
other
words,
could
the
participant
defend
against
the
plan's
express
right
to
reimbursement
by
asserting
it
was
unfair?
The
court
said
no.
The
plan
terms
are
controlling,
even
if
they
arguably
work
an
unfair
result.
But
there
was
more.
Sharing
the
Costs
of
Recovery.
Continue Reading...
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Self-Insured Health Plans: No Stop-Loss Coverage for Ineligible Employee
|
08/25/2012
|
By: Jason Lacey
|
A
federal
appeals
court
has
ruled
against
a
Wisconsin
employer
seeking
reimbursement
under
a
stop-loss-insurance
policy
purchased
in
connection
with
its
self-insured
health
plan.
The
facts
of
the
case
are
simple
and
all-too-common.
An
employee
took
FMLA
leave
and
continued
to
receive
health
coverage
through
the
employer's
plan
during
the
leave.
At
the
end
of
the
FMLA leave,
the
employee
was
unable
to
return
to
work,
so
the
employer
approved
a
further
non-FMLA
leave
and
continued
to
provide
the
employee
with
coverage
under
the
health
plan.
But
the
plan
language
did
not
allow
for
continued
eligibility
during
a
non-FMLA
leave
of
absence.
The
plan
would
have
allowed
for
COBRA
coverage
to
begin
at
the
end
of
the
FMLA
leave,
but
no
COBRA
notice
was
issued
and
no
COBRA
election
was
made.
(The
employer
subsequently
offered
COBRA
when
the
employee
was
unable
to
return
to
work
following
the
non-FMLA
leave.)
The
employee
incurred
large
claims
under
the
health
plan
after
the
FMLA
leave
ended.
The
stop-loss
insurer
argued
-
and
the
court
agreed
-
that
it
was
not
obligated
to
reimburse
the
employer
for
claims
incurred
by
the
employee
after
the
FMLA
leave
ended,
because
the
stop-loss
policy
limited
coverage
to
claims
incurred
by
individuals
who
were
eligible
under
the
terms
of
the
self-insured
health
plan,
and
the
plan
language
did
not
extend
eligibility
during
non-FMLA
leaves.
And
even
though
the
employee
could
have
elected
COBRA
at
the
end
of
the
FMLA
leave
and
continued
coverage
for
up
to
18
(or
even
29)
Continue Reading...
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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