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Health & Welfare Plans Newsletter
January 28, 2010 
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[Guidance Overview]
Excise Tax Reporting for HIPAA, COBRA and HSA Violations
Excerpt: "HIPAA, COBRA and certain other laws include excise tax penalties for violations and similar excise tax provisions apply to certain health savings account (HSA) and medical savings account (MSA) contributions. Employers have had little guidance on reporting or paying these excise taxes, but final IRS regulations issued in September 2009 fill that void, describing who is responsible for paying the tax, and how and when to report violations." (Mercer LLC)
Excise Tax Reporting for HIPAA, COBRA and HSA Violations
Excerpt: "HIPAA, COBRA and certain other laws include excise tax penalties for violations and similar excise tax provisions apply to certain health savings account (HSA) and medical savings account (MSA) contributions. Employers have had little guidance on reporting or paying these excise taxes, but final IRS regulations issued in September 2009 fill that void, describing who is responsible for paying the tax, and how and when to report violations." (Mercer LLC)
[Guidance Overview]
Post-Glenn Template for Analysis of Permissible Discovery
Excerpt: "'In sum, limited discovery beyond the administrative record will be allowed but controlled. Such discovery must focus on the Defendants' structural conflict of interest. Dandridge v. Raytheon Co., 2010 U.S. Dist. LEXIS 5854 (D.N.J. 2010)' This recent district court opinion addresses the scope of discovery in a claim for benefits case determined under an arbitrary and capricious standard of review. The court take a comprehensive survey of the law and, as a result, the opinion provides a helpful template for analysis of the issue." (Roy Harmon III via Health Plan Law)
Post-Glenn Template for Analysis of Permissible Discovery
Excerpt: "'In sum, limited discovery beyond the administrative record will be allowed but controlled. Such discovery must focus on the Defendants' structural conflict of interest. Dandridge v. Raytheon Co., 2010 U.S. Dist. LEXIS 5854 (D.N.J. 2010)' This recent district court opinion addresses the scope of discovery in a claim for benefits case determined under an arbitrary and capricious standard of review. The court take a comprehensive survey of the law and, as a result, the opinion provides a helpful template for analysis of the issue." (Roy Harmon III via Health Plan Law)
The Health Information Security and Privacy Collaboration
Excerpt: "Established in June 2006 by RTI International through a contract with the U.S. Department of Health and Human Services (HHS), the Health Information Security and Privacy Collaboration (HISPC) originally comprised 34 states and territories. . . . Each project is designed to develop common, replicable multi-state solutions that have the potential to reduce variation in and harmonize privacy and security practices, policies, and laws." (U.S. Office of the National Coordinator for Health Information Technology)
Excerpt: "Established in June 2006 by RTI International through a contract with the U.S. Department of Health and Human Services (HHS), the Health Information Security and Privacy Collaboration (HISPC) originally comprised 34 states and territories. . . . Each project is designed to develop common, replicable multi-state solutions that have the potential to reduce variation in and harmonize privacy and security practices, policies, and laws." (U.S. Office of the National Coordinator for Health Information Technology)
HIPAA HITECH Compliance Steps to Take Now
Excerpt: "Here is a quick checklist of what you should be doing to comply: Send updated agreements to your business associates. . . . Adopt a HIPAA breach notification policy. . . . Amend HIPAA policies and procedures to address the following issues: Updated minimum necessary rule; Additional prohibitions on the use of PHI for marketing; [and,] New individual right to request restrictions on disclosures to health plans. Evaluate your Notice of Privacy Practices . . . . Train staff on new procedures." (Warner Norcross & Judd LLP)
Excerpt: "Here is a quick checklist of what you should be doing to comply: Send updated agreements to your business associates. . . . Adopt a HIPAA breach notification policy. . . . Amend HIPAA policies and procedures to address the following issues: Updated minimum necessary rule; Additional prohibitions on the use of PHI for marketing; [and,] New individual right to request restrictions on disclosures to health plans. Evaluate your Notice of Privacy Practices . . . . Train staff on new procedures." (Warner Norcross & Judd LLP)
Could Some Areas of Health-Reform Consensus Still Move Forward?
Excerpt: "[I]s there any hope of salvaging other parts of national legislation where Democrats and Republicans appeared to come to consensus? What are those other parts? Could the parties and the White House craft a bipartisan solution at this stage? I posed the questions to a few observers Wednesday, the day after Massachusetts' election of a Republican to the Senate appeared to doom prospects for health-care reform legislation." (MinnPost.com)
Excerpt: "[I]s there any hope of salvaging other parts of national legislation where Democrats and Republicans appeared to come to consensus? What are those other parts? Could the parties and the White House craft a bipartisan solution at this stage? I posed the questions to a few observers Wednesday, the day after Massachusetts' election of a Republican to the Senate appeared to doom prospects for health-care reform legislation." (MinnPost.com)
Considering a Qualified Sick Pay Plan
Excerpt: "Under IRC sections 105 and 162, a business cannot deduct wages paid to a disabled employee. The key word is wages. IRC section 106 requires that a company pay wages only to employees who render services. However, a company can pay wages to disabled employees under a section 105 qualified sick-pay plan (QSPP)." (Fox Rothschild LLP)
Excerpt: "Under IRC sections 105 and 162, a business cannot deduct wages paid to a disabled employee. The key word is wages. IRC section 106 requires that a company pay wages only to employees who render services. However, a company can pay wages to disabled employees under a section 105 qualified sick-pay plan (QSPP)." (Fox Rothschild LLP)
Employers Skeptical about Health Reform Savings
Excerpt: "Some 71% of U.S. employers polled said they are expecting higher health care costs in general if a health reform measure makes it out of Congress and is signed into law. A news release about two surveys sponsored by Towers Watson and the National Business Group on Health (NBGH) said 69% of employers in the first survey are forecasting that reform would bump up their costs for employer-based benefit programs. Some 35% say health reform will lead to fewer employers offering subsidized benefits." (PLANSPONSOR.com)
Excerpt: "Some 71% of U.S. employers polled said they are expecting higher health care costs in general if a health reform measure makes it out of Congress and is signed into law. A news release about two surveys sponsored by Towers Watson and the National Business Group on Health (NBGH) said 69% of employers in the first survey are forecasting that reform would bump up their costs for employer-based benefit programs. Some 35% say health reform will lead to fewer employers offering subsidized benefits." (PLANSPONSOR.com)
Health Insurers Use Pre-emptive Strike on Legislative Mandate in Florida
Excerpt: "In a pre-emptive strike on a legislative mandate, major health insurers in Florida have agreed to pay for what could be costly care for members diagnosed with cancer who participate in clinical trials. The 'Clinical Trials Compact,' negotiated by Florida state Sen. Don Gaetz, a Republican and chairman of the Senate Health Regulation Committee, ensures that cancer patients receive continued benefits while being treated with experimental drugs and other therapies, according to a statement from the committee earlier this month." (BESTWIRE via Consumer Watchdog)
Excerpt: "In a pre-emptive strike on a legislative mandate, major health insurers in Florida have agreed to pay for what could be costly care for members diagnosed with cancer who participate in clinical trials. The 'Clinical Trials Compact,' negotiated by Florida state Sen. Don Gaetz, a Republican and chairman of the Senate Health Regulation Committee, ensures that cancer patients receive continued benefits while being treated with experimental drugs and other therapies, according to a statement from the committee earlier this month." (BESTWIRE via Consumer Watchdog)
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Executive Compensation; Benefits in General
[Guidance Overview]
IRS Section 409A Document Correction Program (PDF)
4 pages. Excerpt: "The IRS takes the position that many standard release provisions in employment and severance agreements violate Section 409A. Under Section 409A, payments upon a separation of service must commence within 90 days after the separation and the participant must not have an election as to when to commence payments." (Dechert LLP)
IRS Section 409A Document Correction Program (PDF)
4 pages. Excerpt: "The IRS takes the position that many standard release provisions in employment and severance agreements violate Section 409A. Under Section 409A, payments upon a separation of service must commence within 90 days after the separation and the participant must not have an election as to when to commence payments." (Dechert LLP)
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