Health Care Reform and FMLA Training Opportunities

Health Care Reform

NFP Benefits Compliance prepared three webinars in May focused on PPACA. Don’t miss our last presentation on May 28, which is entitled “Health Exchanges, Essential Health Benefits and the Employer Mandate.” Erin Kartheiser and Steve Flores with Winston & Strawn, LLP will discuss the latest developments in state and federal exchanges; the interaction between individual subsidies and employer penalties; essential health benefits and plan design considerations. Registration information can be found below. In addition, information on how to access an archived version of the other two webinars is outlined below.

May 28, 2013
3:00 p.m. – 4:30 p.m. ET

Health Exchanges, Essential Health Benefits and the Employer Mandate

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Speaker Bio

FMLA

Not a lot of attention was paid to FMLA from 1993-2008. There were lawsuits for noncompliance and sporadic guidance on how HIPAA and flexible spending accounts interacted with FMLA. However, in 2008, 2009 and 2010, there was a flurry of activity involving military personnel and military family members, as well as airline workers. This activity is continuing into 2013. Final regulations on the 20th anniversary of FMLA further clarify airline- and military-related leaves, as well as update employer disclosures. Join this call to hear Karen Kirkpatrick, senior compliance advisor with Infinisource, discuss the newest regulations to modify FMLA and what employers need to do to comply.

May 31, 2013
3:30 p.m. – 4:30 p.m. ET

FMLA Final Regulations: 20 Years Later and Regulations Are Still Being Issued

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Speaker Bio

These programs are pending approval for 1–1.5 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. For more information about certification or recertification, visit the HR Certification Institute website at www.hrci.org.

Note: Those listening to a recorded webinar will not be eligible for credit.

Information on PPACA's Fees: PCOR, Reinsurance and HIT

PPACA created three new fees that impact group health plans. They are the Patient Centered Outcomes Research (PCOR) fee, reinsurance fee and the health insurance tax (HIT). The HR and Compliance Solutions website has been updated with information on these three fees, including a reference chart summarizing the type of plans that are impacted, the effective date and the amount of each fee. There is also a web page dedicated to each fee providing detailed information to help employers understand their requirements and financial impact. The chart is linked below and the web pages are accessible from the menu bar to the left of the chart.

PPACA Fees Chart

DOL Releases Model Notice and Guidance on PPACA's Exchange Notice Requirement

On May 8, 2013, the DOL issued Technical Release No. 2013-02, which includes temporary guidance and a model notice relating to the notice to employees of coverage option (known as the “Exchange Notice”) requirement under PPACA. As background, PPACA requires employers subject to the FLSA to provide each employee with a written notice that describes information about the state health insurance exchanges (also referred to as “marketplaces”), including the availability of premium tax credits and the implications relating to purchasing coverage through the exchanges. Originally, PPACA required employers to distribute the notice by March 1, 2013; but earlier this year the DOL delayed that effective date. Technical Release No. 2013-02 makes clear that employers must distribute the exchange notice to all current employees by Oct. 1, 2013. In addition, after Oct.1, 2013, employers must provide the exchange notice to new hires within 14 days of the employee’s start date.

Importantly, the notice must be distributed regardless of whether the employee is full-time or part-time and regardless of whether the employee is actually eligible for coverage. For this purpose, Technical Release No. 2013-02 provides two model notices to assist employers in providing the required information: Notice for Employers Without Health Plans and Notice for Employers With Health Plans. The former includes (among other things) a brief description of the exchanges, the circumstances under which a premium tax credit may be available, and a link to a website for further information and an exchange enrollment application. The latter includes all of that information, as well as specific information relating to the employer’s health plan (e.g., whether the plan meets the minimum value standard, whether the coverage is affordable, etc.).

Now that the model notices are available and the effective date is known, employers should begin preparations for drafting and distributing the notices. Employers should review the model notices and determine what plan-specific language, if any, it should include in the notices.

Technical Release No. 2013-02
Model Notice for Employers Without Health Plans
Model Notice for Employers With Health Plans

DOL Releases Updated Model COBRA Election Notice

On May 8, 2013, the DOL issued Technical Release No. 2013-02, which announces an updated model COBRA election notice. The updated model notice includes changes relating to the availability of alternatives to COBRA coverage through the state health insurance exchanges (referred to in the notice as  “Marketplaces”). Specifically, the updated notice adds language that COBRA qualified beneficiaries may be able to purchase alternative coverage through the Marketplace, that a premium tax credit may be available to help pay for some or all of that Marketplace coverage, that special enrollment opportunities may be available in other group health plans for which they are eligible (if enrollment is requested within 30 days) and that there are limitations on a plan’s ability to impose a pre-existing condition exclusion (those exclusions are prohibited beginning in 2014). The DOL also released a redline version of the COBRA election notice, which highlights changes that were made to the prior version of the notice.

The updated notice is in modifiable, electronic form. Use of the updated model election notice, appropriately completed, will be considered by the DOL to be good faith compliance with the election notice content requirements of COBRA. Thus, employers may begin using the updated notice immediately (even though the exchanges are not currently in operation).

In addition to the updated model COBRA election notice, Technical Release No. 2013-02 also includes model notices that employers may use to satisfy the notice of exchange requirement under PPACA (as discussed in the above article).

Technical Release No. 2013-02
Updated Model COBRA Election Notice
Updated Model COBRA Election Notice Redline Version

EEOC Settlement Emphasizes Agency’s Prioritization of GINA Claims

On May 7, 2013, the EEOC settled its first lawsuit arising from violations of the Genetic Information Nondiscrimination Act (GINA). In EEOC v. Fabricut Inc., No. 13-Civ. 248 (N.D. Okla. May 7, 2013), an applicant for a memo clerk position was asked if she, or anyone in her family, suffered from conditions such as heart disease, cancer, diabetes or “mental disorders.” The applicant was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether the applicant suffered from carpal tunnel syndrome (CTS). The employee was instructed she needed to be evaluated for CTS by her personal physician, and to provide the company with the results, which she did. Although her physician concluded she did not have CTS, the company rescinded its job offer. 

The EEOC filed a lawsuit against the employer. In its suit, the EEOC charged that the employer violated the ADA when it refused to hire the applicant because it regarded her as having CTS, and violated GINA when it asked for her family medical history in its post-offer medical examination. The case was quickly settled. Under the terms of settlement, the employer will pay $50,000. In addition, the employer agreed to take specified actions designed to prevent future discrimination.

At the end of 2012, the EEOC declared that prevention of genetic discrimination would be one of its top priorities over the next four years. The EEOC’s General Counsel reiterated this position in announcing the Fabricut settlement, cautioning that
"[e]mployers need to be aware that GINA prohibits requesting family medical history, . . .[and] [w]hen illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis."

EEOC v. Fabricut Inc.