HIPAA requirements for Actively At Work treatment

[Benefits Vet]

Medical plan requires that a participant be "actively at work" to be eligible. The definition of "actively at work" includes the following:

"As required by HIPAA, absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the Plan or coverage under the Plan, as being actively at work."

I have not ever heard of such a requirement under HIPAA. What provision(s) of HIPAA or the regs address(es) this?

As always, thank you!

[Benefits Vet]

18 minutes ago, chibenefits said:

Medical plan requires that a participant be "actively at work" to be eligible. The definition of "actively at work" includes the following:

"As required by HIPAA, absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the Plan or coverage under the Plan, as being actively at work."

I have not ever heard of such a requirement under HIPAA. What provision(s) of HIPAA or the regs address(es) this?

As always, thank you!

I should clarify- the plan sponsor believes that this provision means that a current participant who goes out on unpaid sick leave cannot lose coverage, even if all other employees on any other kind of unpaid leave would lose eligibility for coverage. My understanding is that the HIPAA regs allow for this type of provision. I think that this is sloppy drafting to address the enrollment rules, but I am just checking to see if I am missing something. 

 

[Chaz]

Off the top of my head, I believe the language in the plan is referencing the HIPAA nondiscrimination rules, which I recall prohibit applying an actively at work requirement that has the effect of excluding from coverage an employee who is absent from work by reason of a health status-related factor.

I don't have the applicable section of HIPAA handy, but that is where I would start.

[leevena]

Chaz is correct.  By way of example, I am hired on Jan , have a waiting period of 60 days, and become eligible on March 1.  I have been at work since Jan 1, but injure my back on Feb 27 and am in the hospital on March 1.  The employer cannot deny my coverage becoming effective Mar 1 because I am not at work due to a health factor.

By way of another example, I am hired Jan 1, with an immediate eligibility.  Work is closed that day, I cannot report, therefor my coverage will be delayed until the first day that I work, presumable Jan 2.

Some actively at work definitions do not meet the HIPPA requirements.

[DDelano]

https://www.law.cornell.edu/cfr/text/29/2590.702  This is the relevant HIPAA nondiscrimination regulation.

Also, remember, if the employer has 50 or more full time and full time equivalent employees, hours for purposes of determining full time employees required to be covered to avoid the employer shared responsibility penalties include hrs on leave for sickness, fmla and other paid leaves of absence.

[JWK]

I believe the employer is correct. If all employees on unpaid leave lose eligibility for coverage, then coverage is also lost for an employee on unpaid sick leave. Here, the group of similarly situated individuals is employees on unpaid leave. So long as all the employees on unpaid leave are treated the same (regardless of whether the unpaid leave is related to a health factor), this provision does not violate HIPAA.  In this case, the group of similarly situated individuals is not being established based on a health factor. See 29 CFR Section 2590.702(e)(3)(ii), Example 1.

[JWK]

Regarding the employer shared responsibility point made by DDelano, only paid sick leave hours must be included in hours of service. 26 CFR 54.4980H-1(a)(24) (The term hour of service means each hour for which an employee is paid, or entitled to payment, for the performance of duties for the employer; and each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence (as defined in 29 CFR 2530.200b–2(a)). )

Here, the questioner stipulates that the sick leave is unpaid. So, these unpaid hours would not be counted to determine the employee's full-time status.

Under the lookback measurement period, it is sometimes necessary to take unpaid hours into account--but only for special unpaid leaves. Special unpaid leaves are limited to FMLA leave, USERRA leave, and jury duty. This doesn't seem to be an issue in this question.

[sharonfoster]

The provision relates to the coverage effective date for a new hire. If I offer my employees group health plan coverage on the first day of the month following the date of hire, the health plan is permitted to require the employee be actively at work on the date coverage is effective. However, because of HIPAA's prohibition on the use of health status, if the employee is home sick or in the hospital (rather than taking the day off or not scheduled to work), the coverage must be effective on the stated effective date, the first of the month. The provision is not useful any longer since its purpose was to avoid making coverage effective if the person was sick on the effective date.