Health & Welfare Plans Newsletter

April 29, 2019

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[Official Guidance]

Text of HHS Notification of Enforcement Discretion Regarding HIPAA Civil Money Penalties

"Current HHS regulations apply the same cumulative annual CMP limit across four categories of violations based on the level of culpability. As a matter of enforcement discretion, and pending further rulemaking, HHS will apply a different cumulative annual CMP limit for each of the four penalties tiers in the [Health Information Technology for Economic and Clinical Health (HITECH) Act]."
U.S. Department of Health and Human Services [HHS]

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[Guidance Overview]

HHS Changes Course on Limits for HIPAA Civil Money Penalties

"HHS concluded ... that the better reading of the statute is to apply the following annual limits: $25,000 for violations involving no knowledge. $100,000 for reasonable cause violations. $250,000 for willful neglect violations that are corrected. $1,500,000 for willful neglect that are not corrected....HIPAA covered entities and business associates will welcome the less severe cumulative annual CMP limits for Tier 1, 2, and 3 violations -- particularly given HHS's aggressive enforcement in the HIPAA space[.]"
Thomson Reuters Practical Law

[Guidance Overview]

Dallas's Earned Paid Sick Time Ordinance: What Employers Need to Know

"Dallas is the third Texas city ... to pass such an ordinance.... [It] may be challenged in court ... and Texas legislators are working to pass a bill that would prohibit these sorts of local ordinances.... The ordinance will take effect on August 1, 2019, for all covered employers with five or more employees. The effective date is delayed until August 1, 2021, for employers with fewer than five employees at any time in the preceding 12-month period."
Ogletree Deakins

[Guidance Overview]

Updates to Massachusetts Paid Family Medical Leave Act

"Massachusetts employers are responsible for collecting and submitting contributions, which will operate similarly to Massachusetts state unemployment contributions, if: [1] The employer has W-2 employees in Massachusetts; [2] More than 50% of the employer's workers are contractors for whom the employer reports payments on 1099 forms; or [3] An individual is self-employed and has opted in."
Choate Hall & Stewart LLP

Is Your Employer Worksite Medical Clinic a Group Health Plan?

"If the worksite clinic does more than treat minor workplace injuries and illnesses during work hours, it will be subject to ERISA, including the requirements of issuing a summary plan description and filing an annual Form 5500. It also will be subject to COBRA ... An ERISA-covered worksite clinic might still escape other requirements unique to group health plans under HIPAA and the ACA if it qualifies as an excepted benefit by virtue of being a worksite medical clinic. However, the enforcement agencies have not defined a worksite medical clinic for these purposes."
Jackson Lewis P.C.

Association Health Plan Considerations following the Court Order Vacating the DOL's Final Rule

"According to the Court, it is unreasonable to interpret 'employer' as including working owners and groups that do not have 'a true commonality of interest' and doing so leads to 'absurd results' and is an 'end run' around the [ACA]. The Court's opinion was issued with immediate effect and has cast doubt on the future use of AHPs, especially self-insured AHPs." [State of New York v. U.S. Department of Labor, No. 18-1747 (D.D.C. Mar. 28, 2019; notice of appeal filed by DOL on Apr. 26, 2019)]
Benefits BCLP

New Telehealth Bill Signed in Arizona

"SB 1089 expands health insurance coverage for telehealth ... Notably, the new law ensures that commercial health plans cover services provided through telemedicine at the same rates as those same services would be covered by in-person consultations."
Center for Telehealth and e-Health Law

Medicare Buy-In Option Beginning at 55 the Most Likely Expansion Route, Says Former CMS Chief

"Among the eight Democratic bills introduced so far to expand Medicare in various ways -- or to use it as the nominal basis for a single-payer system -- the Medicare buy-in approach was the focus of two bills.... These 'Medicare at 50' bill provisions would: [1] Allow buy-in starting at age 50; [2] Add the option of Medicare Parts A, B and D, or an MA plan to [ACA] marketplaces; [3] Use Medicare payment rates; [4] Include Medicare limits on balance billing."
Healthcare Financial Management Association [HFMA]

Slack Files to Go Public, Aims to Act as HIPAA Business Associate

"The cloud-based communication tool ... is looking to have its messaging application being used by healthcare providers. Slack will be subject to HIPAA, as well as other state health information laws, which will require a keen focus on compliance. Some have raised concerns about vendors potentially accessing protected health information shared in messages, not files, through the service."
HealthLeaders Media

HHS Guidance Clarifies HIPAA Liability with Use of Third-Party Health Apps

"OCR clarifies that when a patient shares protected health information with a third-party app or requests their healthcare provider share their health data with an app, the provider organization is not liable for any subsequent use or disclosure of the data as long as the app developer is not a business associate of the provider."
FierceHealthcare

Benefits in General

Partnership Compensation and Benefits: Traps for the Unwary

"[P]artners are not able to participate in cafeteria plans, so this favorable tax treatment is not available ... [S]ome employee welfare or fringe benefits are entirely unavailable to partners, such as educational assistance, qualified employee discounts and working condition fringe benefits.... The partner, however, may ultimately be allowed to deduct amounts he or she pays for these benefits on his or her tax return.,,, [A] partnership's matching contribution to a partner's 401(k) is generally treated as a guaranteed payment and would be subject to self-employment taxes (but not income taxes)."
Alvarez & Marsal

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2019 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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