Steve72

If the benefit is considered an ERISA plan, employee money will be considered a "plan asset". Refunding plan assets to the employer will be considered a prohibited transaction in violation of ERISA section 406.

I agree with Carsca. 105(h) only applies to employer-funded benefits.

If you've got a few minutes, and are looking for inspiration, I highly recommend reading the description of the current leg of the Tour de France. Go to the link below, click on up the "Newsflashes", scroll down to "14 H 22 - Situation At Base of Col d'Aspin", then read up. It'll probably take you 10 minutes or so to read, but I can't even begin to do it justice on my own. http://www.letour.fr/2003/us/index.html

Insurance companies are not business associates of a fully insured plan. If this is an insurance company serving as an ASO, a BAA should be signed before any PHI is transmitted.

No, I don't think you're missing anything. Certain employees will have separate responsibilities for both the employee and the plan. Obviously, they can't "forget" PHI when performing employer functions, but they should be trained to keep the two as separate as possible, and to document the source of the information used (e.g., employee discloses IIHI to HR rep acting for employer-not PHI).

One practical consideration is that top-heavy issues are normally reviewed by the IRS, not the DOL. Although the DOL may go after the employer for a failure to follow the top-heavy provisions of the document (if there is a problem) it's normally not one of their big issues. Of course, there is always the potential that the DOL could refer the plan to the IRS for its own review, but they usually only do that if there's a PT. From what I've seen, the DOL normally asks for testing info primarily to see that it's been done.

"Question: An employee who waived medical coverage (in a fully insured plan) and dental coverage (in our self-insured plan) in 2000 has requested access to his PHI. What are our obligations?" What PHI does the plan maintain regarding this individual? Was he enrolled in the plan prior to 2000?

No, you cannot sue for tort damages arising out of a pension dispute.

I'm not sure I understand your question, but if you're asking what I think you are; The grace period is for the employee to pay the employer. Unless referenced in the contract, the insurer does not have to extend the grace period to the employer's obligation to pay the premium. This can result in the employer being required to "front" the money for an employee who does not pay until the end of the grace period.

Vebaguru: Assuming this plan is self-funded, and the 105(h) rules apply, I believe covering dependents in this manner is considered a discriminatory BENEFIT, and the taxable income would be all benefits paid to dependents of HCIs, not the cost of the premium.

They never were. "Trading partner agreement" refers to any agreement between a covered entity and the other party to a covered transaction. HIPAA states that your agreement can't require a format other than the ASC X12N formats. However, entering into a trading partner agreement is good practice to ensure compliance.

That's a tricky question. Unless the plan is a "small plan", The plan must be amended effective as of April 14, 2003. If HHS comes knocking in the "gap time" before the amendment is actually adopted, there is a violation. There's no "remedial amendment period" for this purpose. Additionally, it's important to note that the required amendment states that the plan will not release information to the employer until it has received certification that the amendment has been adopted. Without this certification, the plan technically cannot release information to the employer. Any release prior to receipt of certification could be considered a violation. Obviously, the employer cannot certify that the documents have been amended prior to the adoption of the amendment. I advised clients to adopt the amendment by April 14th, or as soon as possible thereafter. The longer the employer waits, the greater the risk. I would advise strongly against waiting until the end of the plan year.

If the union is the sponsor of the health plan, it is explicitly excluded from the definition of a "business associate". The plan amendment required by HIPAA essentially takes the place of a business associate agreement.

There is no distinction drawn in the EDI regulations between self-funded and fully-insured plans. However, fully insured plans will utilize service providers (the insurer) who are themselves covered entities to engage in the transaction, whereas the self-funded plan will utilze service providers (TPAs) who are not. This may make life easier for the fully insured plan, as the service provider has an independent obligation to comply. Note, however, that most TPAs also serve a separate function as an insurer. Although there is no HIPAA requirement that the TPA use the standard format in its role as TPA, they probably will have no difficulty doing so.

The EDI rules require that each covered transaction be conducted in a specified format. Describing these formats is a technical issue, and well beyond my abilities. Each format, however, contains certain data elements (information), required to be present (e.g., name, employer, plan, etc.) Direct data entry transactions must contain all of these data elements, but do not need to be "packaged" into the correct format. EDI compliance is a computer/technical issue rather than a legal one. I would advise involving your IT department in determining whether you have an issue.

"Direct Data Entry" transactions must contain all required data elements, but do not need to be in the standardized format. Do employees directly affect their plan records? (Edit for additional information) If employees do not directly affect plan records, you may be able to take the position that this collection of information is performed by the employer/plan sponsor, and not subject to HIPAA. The transmission of the collected data to the insurer would be the enrollment transaction, and subject to the EDI standards.

http://www.mma.tv/TUF/DisplayMessages.cfm?...33920&P=1&FID=2

Yes. This is a claim under ERISA. Recently effective Regulations regarding the timing of claims and appeals for disability plans are applicable here.

You've got to back up a bit. Analogizing health plans to pension plans is going to get you into much more trouble than it will help. In order to contribute pre-tax dollars to a health plan, you must have a SEPARATE cafeteria plan which satisfies section 125 of the Code. The health plan itself is governed by 105 of the Code and ERISA.

There is no such thing as a health plan qualified under section 401(a). Do you mean a 401(h) account for retiree medical benefits? In any case, there are no minimum participation requirements applicable to health plans. If the classification you have created does not violate any nondiscrimination requirements (e.g., 105 rules applicable to self funded employer provided benefits), there should be no problem.

"Makes sense. Now what if the employer is self insured such that they ARE the plan..? " The employer is never the plan. There are still considered to be two separate entities. Individuals who have access to PHI in their role in acting for the plan must be trained not to use PHI for the employer, or release PHI to individuals who do not have a legitimate plan purpose for accessing the PHI. As discussed below (edited: as discussed ABOVE), enrollment information may be released from the plan to the employer for the employer's use. Once held by the employer, the information is no longer PHI.

There was a case this year, Keogan v. Towers, Perrin, Forster & Crosby, Inc., in which the defendant got hit with $100/day for failure to provide a plan document.

This is a somewhat complicated question. Your post is basically correct, but will depend on what assistance activities are actually being performed, what information is being shared and what kind of arrangement you have with your TPA regrding communication with plan personnel. If you classify assistance activities as a plan function, and bring all employees who perform this task within the HIPAA "firewall", the general consensus is that those employees can continue performing these functions without specific authorization. However, if you have individuals performing this action, why not have them obtain an authorization at the outset of the assistance? It's a relatively painless process, and most employees will understand the need and be willing to execute the authorization to get assistance with their claims.

I assume you need the name of the drug to determine if it is a covered product under the FSA. I'm assuming this is some kind of interpretation of the minimum necessary rule. I don't agree with the interpretation, but if they are willing to provide you with the information upon request, that may be the best option. Unfortunately, there are probably going to be issues raised like this for a while until an "industry standard" interpretation of many of HIPAA's rules is determined. I would ask the pharmacists if they will print the name of the drug if specifically requested to do so by beneficiary. Then, notify beneficiaries that they should make such a request at the time services are provided to ease payment of their benefits.

I assume QDROphile (great screenname) was asking to determine whether a 105(h) discrimination issue existed. It appears this program is fully insured, so that doesn't appear to be a concern. An employer can set up separate "classes" of employees with different benefits. For example, the employer could say that the two owners are part of an ownership class, and receive employer-paid benefits, while employees are eligible for employee-paid coverage. I infer that the first employee also receives empoyer-paid coverage. Is there any classification that can be drawn between the two employees? You didn't mention whether there is a Section 125 cafeteria plan involved. That could raise additional issues.