Chaz

That BAs do not need to comply with the full panoply of the Privacy Rule's requirements, including appointing a privacy official. They only need to comply with the items specified starting with the sentence that begins "Therefore" above. Thoughts?

I think I found my answer in the preamble to the final rule (see emphasis added): Some commenters requested clarification as to which provisions of the Privacy Rule apply directly to business associates, and one commenter recommended applying all of the provisions of the Privacy Rule to business associates, including requiring business associates to implement reasonable safeguards, train employees, and designate a privacy official. . . . . As we discuss further below, section 13404 of the HITECH Act creates direct liability for impermissible uses and disclosures of protected health information by a business associate of a covered entity ‘‘that obtains or creates’’ protected health information ‘‘pursuant to a written contract or other arrangement described in § 164.502(e)(2)’’ and for compliance with the other privacy provisions in the HITECH Act. Section 13404 does not create direct liability for business associates with regard to compliance with all requirements under the Privacy Rule (i.e., does not treat them as covered entities). Therefore, under the final rule, a business associate is directly liable under the Privacy Rule for uses and disclosures of protected health information that are not in accord with its business associate agreement or the Privacy Rule. In addition, a business associate is directly liable for failing to disclose protected health information when required by the Secretary to do so for the Secretary to investigate and determine the business associate’s compliance with the HIPAA Rules, and for failing to disclose protected health information to the covered entity, individual, or individual’s designee, as necessary to satisfy a covered entity’s obligations with respect to an individual’s request for an electronic copy of protected health information. See § 164.502(a)(3) and (a)(4). Further, a business associate is directly liable for failing to make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request. See § 164.502(b). Finally, business associates are directly liable for failing to enter into business associate agreements with subcontractors that create or receive protected health information on their behalf. See § 164.502(e)(1)(ii). As was the case under the Privacy Rule before the HITECH Act, business associates remain contractually liable for all other Privacy Rule obligations that are included in their contracts or other arrangements with covered entities.

Does that requirement also extend to appointing a Privacy Officer as well?

Are business associates specifically required under the final HITECH regulations to appoint a privacy officer? If so, can someone provide the applicable regulation, as I can't seem to find one. Thanks!

I'm not sure PRPs will work in the employer-sponsored plan context.

I note that there is no mention of a penalty for not providing dependent coverage in any of the flow charts.

See my response on the "Health & Welfare Plans in General" board .

If highly compensated employees disproportionately participate in the self-insured plan, you are likely to fail the cafeteria plan nondiscrimination tests (but you are probably already failing the self-insured plan tests). There might be some plan designs that you can use but you should consult with counsel about that.

Ken, I am not sure that I fully understand your question. Are you asking whether employers can "force" (through mandatory coverage) their employees to be covered under an unaffordable and/or non-minimum value plan such that the employees won't be eligible for coverage on the exchange and therefore there will be no penalty? If so, I believe that the proposed regulations address this by providing that employers have to give employees the ability to opt out of employer-based coverage and get coverage on the exchange. Let me know if I have misinterpreted your question.

I made what I thought was a snarky comment intimating that it would be unusual for an employee to elect to drop coverage but still have to pay for it. Absent very peculiar circumstances, why would anyone do that?

That would be an interesting plan design: The employee can drop the coverage but has to continue paying for it!

Based on your description, your employer is not complying with the cafeteria plan rules.

Without looking at this in depth, I would imagine that the NE statute is preempted by ERISA and COBRA with respect to its application to a self-insured plan, at least to the extent that the employer has 20 or more employees.

This is the first I have heard about this, and could not find anything about it either. Are you sure the person was discussing all HRA's or just the use of HRA's to fund individual plans? Treasury is most concerned about using HRAs to fund individual policies but the representative seemed to take the position that any HRA not linked to a medical plan will be subject to PPACA's market reforms on annual and lifetime limits.

After writing this, I sat in a CLE today where a representative of Treasury basically put the kibosh on stand-alone HRAs. I would tread very carefully and consult with counsel before implementing or continuing such a program.

This is generally permissible but arrangements such as these may go the way of the dinosaurs under PPACA's annual limit rules. We need guidance from the DOL/IRS/HHS on the treatment of stand-alone HRAs that are not excepted benefits, retiree plans, or FSAs.

I just tried that site, and, while it is helpful in general, it doesn't seem to address my particular circumstances.

Employee elects to participate in an FSA during open enrollment. After the beginning of the plan year, the employee is promoted to position where she becomes eligible to participate in a taxable MERP-type benefit, which reimburses the same expenses as does the FSA. Can the employee cancel the FSA election mid-year? I think the answer is no but I thought I'd see if anyone had any thoughts. Any help is appreciated.

Short answer: No, presuming that she was properly reimbursed for qualified medical expenses with that $4,500.

Buyer does not need to offer COBRA if it does not offer coverage.

There is a bit of a grace period for 2014 as long as the employer "takes steps" to towards satisfying the dependent rules. Perhaps I should have said 2015.

Section 4980H(a) provides that, starting in 2014, in order for a large employer not to be required to pay the "pay-or-play" penalty it must "offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan (as defined in section 5000A (f)(2))." There is similar language in 4980H(b). While I understand that this does not require employers to provide coverage to dependents, they need to in order to avoid the penalty. But do they? The penalty only applies to the extent that an employee receives a credit/subsidy on the Exchange (not, presumably, a dependent). This is the gist of my question. Treasury discussed the issue in the preamble to the proposed regs, but I do not know if the proposed regs definitely place a monetary penalty on not providing dependent coverage.

The proposed regulations on the employer shared responsibility clarify that employers must cover the dependents (i.e., children to age 26 but not spouses) of FT employees. But the penalties under both 4980H(a) and (b) only apply to the extent that the employer receives a Section 1411 Certification that a FT employee obtains a subsidy/credit for obtaining coverage on the Exchange. Despite the coverage mandate, it is still not clear to me that there is any penalty if an employer provides affordable coverage to all its FT employees but not to their dependents because no FT is eligible for coverage on the Exchange. What am I missing?

The DOL is most certainly stepping up its audit activities of health and welfare plans. I am working on one for a client right now. The DOL seems to be mainly concerned with complying with PPACA, but also with MHPAEA, HIPAA, and COBRA. The document request is generally ambiguously broad (as is usual with the DOL) but the DOL generally is looking for documents from 2010 going forward. I can't provide the letter my client received but below is a link to one posted on Jackson Lewis's website. It is generally the same (but not exactly) as the one my client received. http://www.jacksonlewis.com/media/pnc/2/media.2172.pdf

To my knowledge there is no longer any concept of "household" in the DCAP rules. (I think there was until Congress overhauled the DCTC.) A married couple filing jointly or an unmarried single parent can be reimbursed up to $5,000 per year. I believe that two unmarried individuals who live together and who each have their own child can get reimbursed $5,000 each.