Health & Welfare Plans

The Internal Revenue Service (“IRS”) has released Notice 2018-94, which extends the due date for furnishing the 2018 Form 1095-B and Form 1095-C to individuals from January 31, 2019 to March 4, 2019.

This extension is automatic, and, as a result, the IRS will not formally respond to any pending extension requests for furnishing the forms to individuals. In addition, filers do not need to submit a request or documentation to take advantage of this extension. Despite the extension, the IRS is encouraging employers and other coverage providers to furnish the 2018 statements as soon as they are able.

Forms 1095-B are used to report whether individuals have minimum essential coverage (“MEC”) and, therefore, are not liable for the individual shared responsibility payment. Forms 1095-C are used to report information about offers of health coverage and enrollment in health coverage for employees, to determine whether an employer owes an employer shared responsibility payment, and to determine the eligibility of employees for the premium tax credit. Under the Affordable Care Act’s (“ACA’s”) employer mandate, applicable large employers (“ALEs”) (those employing on average at least 50 full-time employees and full-time equivalents in the prior calendar year), are required to offer MEC to at least 95% of their full-time employees (and their dependents) that is “affordable” and provides “minimum value” to avoid applicable penalties. [1]

Notice 2018-94 does not extend the due date for filing the Forms 1094-B, 1095-B, 1094-C and 1095-C with the IRS, with the due date remaining February 28, 2019, if not filing electronically, or April 1, 2019, if filing electronically. Employers may still obtain an automatic 30-day extension to file the required forms by filing a Form 8809 with the IRS on or before the forms’ due date. An employer may also receive an additional 30-day extension under certain hardship conditions.

Employers who fail to comply with the extended due dates for furnishing Forms 1095-B and 1095-C to individuals or for filing the Forms 1094-B, 1095-B, 1094-C and 1095-C are subject to penalties. However, an employer that fails to meet the relevant due dates should still furnish and file the required forms as soon as possible. The IRS will take such furnishing and filing of the forms into determining whether to decrease penalties for reasonable cause.

Below is a chart of the applicable deadlines for 2018 Forms and the applicable reporting entities:

Reporting Entity

No Plan

Fully-Insured Plan Self-Insured Plan

Deadline for 2018 Forms

Non-ALE

No filing required. No filing required. Forms 1094-B and 1095-B To individuals:

March 4, 2019

 

To the IRS:

February 28, 2019, if filing by paper; or

April 1, 2019, if filing electronically.

ALE

Forms 1094-C and 1095-C (except Part III; leave blank). Forms 1094-C and 1095-C (except Part III; leave blank). Forms 1094-C and 1095-C for employees.

Either B- or C-Series forms for non-employees.

Insurance Provider

No filing required. Forms 1094-B and 1095-B. Not applicable.

Extension of Good Faith Relief

Similar to the good-faith relief provided in 2015, 2016, and 2017, the IRS will not impose penalties on employers that can show that they made good-faith efforts to comply with the requirements for calendar year 2018. This relief is available only for incorrect and incomplete information reported on the statements or returns, such as missing and inaccurate taxpayer identification numbers and dates of birth. In determining good faith, the IRS will consider whether an employer made reasonable efforts to comply with the requirements (e.g., gathering and transmitting the necessary data to an agent or testing its ability to transmit information).

Good faith relief is not available to employers who have failed to timely furnish or file a statement or comply with the regulations. However, if an employer is late filing a return, it may be possible to get a penalty abatement for failures that are due to reasonable cause and not willful neglect. To establish reasonable cause, an employer must show that it acted in a responsible manner and that the failure was due to significant mitigating factors or events beyond its control.

Individual Mandate and Reporting In Future Years

Individuals do not need to wait to receive the Form 1095-C to file their 2018 tax returns, but should keep these forms for their records. They may rely on other information provided by their employers or other service providers to determine their eligibility for a premium tax subsidy and confirming whether they have had MEC to avoid an individual mandate penalty in 2018. Individuals do not need to send the information they relied upon to the IRS when they send their returns.

Notably, while the individual shared responsibility payment is reduced to zero beginning January 1, 2019, the IRS will continue to study whether and how the reporting requirements should change, if at all, for future years. In the meantime, employers and other service providers should continue to collect information in 2019 needed to comply with all ACA reporting requirements.

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[1] The penalties for failure to comply with these ACA requirements could result in penalties under Internal Revenue Code Section 4980H(a) (“A Penalty”) and Section 4980H(b) (“B Penalty”). The “A Penalty” is $2,320 in 2018 ($2,500 in 2019) for each full-time employee (minus 30 employees) of the employer, including full-time employees who have MEC from another employer plan or another source. The “B Penalty” is $3,480 in 2018 ($3,750 in 2019) for each employee that obtains a premium tax credit.

Based on proposed regulations released by the U.S. Department of Treasury on November 14, 2018 (the “Proposed Regulations”), participants in 401(k) and 403(b) plans may find it easier to get hardship withdrawals as early as plan years beginning after December 31, 2018. Hardship withdrawals are permitted on account of financial hardships if the distribution is made in response to an “immediate and heavy financial need” and the distribution is necessary to satisfy that need. The Proposed Regulations incorporate various prior statutory changes, including changes imposed by the 2017 Tax Act, the Bipartisan Budget Act of 2018, and the Pension Protection Act of 2006. These changes are summarized below:

1. Safe Harbor Expenses. Under the current regulations, a withdrawal to cover an expense on the safe harbor list is deemed to be made on account of an immediate and heavy financial need. The Proposed Regulations expand the safe harbor list of expenses for which a participant may take a hardship withdrawal, which may be applied to withdrawals occurring on or after January 1, 2018. The primary changes to the safe harbor list made by the Proposed Regulations are:

  • the expansion of the category of individuals for whom a participant may take a hardship distribution for qualifying medical, educational, and funeral expenses incurred by a participant to include a “primary beneficiary under the plan”, i.e., the individual who the participant has designated as the beneficiary to receive the participant’s plan account upon the death of the participant;
  • the elimination of the requirement that expenses related to damage to a principal residence that would qualify for a casualty deduction under Section 165 of the Internal Revenue Code of 1986, as amended be attributable to a federally declared disaster, which was imposed by the 2017 Tax Act; and
  • the addition of a new item allowing for hardship distributions for expenses incurred as a result of certain disasters that occur in areas designated by the Federal Emergency Management Agency (“FEMA”) as eligible for individual assistance.

2. Six-Month Deferral Suspension Requirement Eliminated. Under current regulations, a plan participant must be prohibited from making elective deferrals and employee contributions for six months and must take any available plan loans before the hardship withdrawal. Under the Bipartisan Budget Act of 2018, the six-month suspension requirement must be eliminated by January 1, 2020 and the Proposed Regulations allow the six-month suspension to be eliminated for plan years after December 31, 2018 if the plan sponsor so elects. The elimination of the six-month suspension reflects the concern of Congress that a suspension would impede the employee’s ability to replace distributed funds. Plans, however, may elect to continue to require a plan loan prior to a hardship withdrawal.

3. Participant Representation. To determine whether a distribution is necessary to satisfy an immediate and heavy financial need, the Proposed Regulations rely on the following general non-safe harbor standard:

  • the withdrawal may not exceed the amount of the participant’s need; and
  • the participant must have obtained other available distributions under the employer plans.

Under the current regulations, the plan must use a facts and circumstances test to establish the general non-safe harbor standard. Effective as of January 1, 2020, a participant seeking a hardship withdrawal must represent that he or she has insufficient cash or other liquid assets to satisfy the financial need. The plan administrator may rely on the representation unless the plan administrator has actual knowledge to the contrary.

4. Expanded Sources. The current regulations generally only permit hardship withdrawals from elective contributions. Under the Proposed Regulations, a plan may permit hardship withdrawals from elective contributions, qualified non-elective contributions (QNECs), and qualified matching contributions (QMACs), and also from earnings on these contributions, regardless of when contributed or earned. Since contributions to a 401(k) safe harbor plan are subject to the same limitations as QNECs and QMACs, the Proposed Regulations provide that safe harbor contributions may also be a source for hardship withdrawals.

5. 403(b) Plans. The Proposed Regulations will have some impact on 403(b) plans. While income attributable to elective deferrals will not be eligible for hardship withdrawals under the Proposed Regulations, QNECs and QMACs that are not in a custodial account may be withdrawn on account of hardship.

6. Relief for Hurricane Victims. Because the Treasury Department and IRS recognized that employees adversely impacted by Hurricanes Florence and Michael might need expedited access to their plan accounts, the Proposed Regulations extend to these employees the relief provided by Announcement 2017-15 to victims of Hurricane Maria and the California wildfires. The new automatic FEMA safe harbor standard described above will provide greater certainty and expedited access for plan sponsors and participants that may be affected in the future by such disasters.

Effective Dates and Plan Amendments

As noted above, the Proposed Regulations generally apply to hardship withdrawals made in plan years beginning after December 31, 2018, with a few exceptions described above.

Once the Proposed Regulations are finalized, the deadline for adopting plan amendments related to the final hardship withdrawal regulations will be the end of the second calendar year that begins after the issuance of the Required Amendments List that includes the changes. However, since many of the changes included in the Proposed Regulations reflect statutory changes, plan sponsors may wish to adopt some of the required amendments in 2019 so that their plan documents are consistent with plan administration.

Employers and health plans should be aware that two recent federal decisions have recognized that the non-discrimination provision in the Affordable Care Act prohibits discrimination on the basis of gender identity. Plans cannot categorically exclude coverage for procedures to treat gender dysphoria.

In Boyden v. Conlin, the U.S. District Court for the Western District of Wisconsin found that the state’s exclusion of gender reassignment-related procedures from the state employees’ health insurance coverage constitutes sex discrimination in violation of Section 1557 of the Affordable Care Act (the “ACA”) and Title VII of the Civil Rights Act. Section 1557 of the ACA prohibits discrimination and the denial of benefits under a health program or activity, any part of which is in receipt of federal financial assistance, on the basis of race, color, national origin, sex, age or disability. The plaintiffs, two transgender women employed by the State of Wisconsin, also alleged that the exclusion violated the Equal Protection Clause of the Fourteenth Amendment.

This case involved the exclusion of “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” from the health insurance coverage. Pursuant to the exclusion, the health plan did not cover hormone therapy involving gender reassignment surgery, or the surgery itself. Defendants argued that the exclusion did not discriminate on the basis of sex because the plan excludes coverage for all cosmetic treatments for psychological conditions, and because the exclusion simply prohibits coverage for gender reassignment procedures, not because plaintiffs are transgender. The court disagreed, finding that the case constituted a “straightforward case of sex discrimination” because the exclusion treated people differently based on their natal sex. The court also found that the exclusion implicated “sex stereotyping by limiting the availability of medical transition … thus requiring transgender individuals to maintain the physical characteristics of their natal sex.”

The court also found liability against the state on plaintiffs’ Equal Protection Clause claim. In applying heightened scrutiny review, the court concluded that the state failed to show that the exclusion was the product of cost concerns or concerns about the safety and efficacy of gender reassignment surgery and hormone therapy. Because the state could not put forth evidence of a genuine reason for the exclusion, the court found in favor of plaintiffs on the Equal Protection Claim.

Two days after the decision in Boyden, in Tovar v. Essentia Health, the District Court for the District of Minnesota held that Section 1557 prohibits discrimination on the basis of gender identity. In that case, plaintiffs alleged that Essentia Health and HealthPartners Inc. violated Section 1557 by sponsoring or administering a plan that categorically excluded coverage for all health services and surgery related to gender reassignment. Section 1557 incorporates four federal civil rights statutes that prohibit discrimination on the basis of: race, color and national origin (Title VI); sex (Title IX); age (ADEA); and disability (Rehabilitation Act). Concluding that Title IX’s prohibition against sex discrimination should be read as coextensive with Title VII, and noting that courts have recognized a cause of action under Title VII for sex discrimination based on gender identity and gender-transition status, the court determined that “sex discrimination encompasses gender-identity discrimination.” The court thus concluded that Section 1557 prohibits gender identity discrimination and denied defendants’ motion to dismiss.

The court also declined to stay the action pending resolution of Franciscan Alliance, Inc. v. Burwell, in which the Northern District of Texas issued a nationwide injunction enjoining enforcement of the Department of Health and Human Services (HHS) regulations providing that Section 1557’s prohibition of sex discrimination encompasses gender identity discrimination. The Minnesota court concluded that a stay was not warranted because its conclusion that Section 1557 prevents discrimination based on gender identity is based on the plain reading of the statute and does not rely on the Franciscan Alliance decision.

Employer Takeaways

These two cases are the latest in a series in which plaintiffs allege that their employer sponsored health plans are designed in a manner that discriminates based on gender identify in violation of Section 1557 of the ACA and Title VII of the Civil Rights Act. While an earlier decision (Baker v. Aetna Life Insurance Co., 228 F. Supp. 3d 764 (N.D. Tex. 2017)) by the Northern District of Texas declined to find a cause of action for gender identity discrimination under Section 1557, these decisions are in line with the current trend to allow gender identity discrimination claims to be pursued under Section 1557. Therefore, while HHS continues its current policy of non-enforcement of allegations of gender identity discrimination under Section 1557, employers should be aware of provisions in their group health plans that exclude coverage for transgender benefits and litigation risks that these provisions may pose.

Notably, the plans in both Boyden and Tovar included categorical exclusions for services and/or surgeries related to gender reassignment or transition. These categorical exclusions often are a red flag. By contrast, in Baker, the plan did not categorically exclude gender reassignment procedures; there, the insurance company denied the plaintiff’s request for breast augmentation surgery as not medically necessary. The Baker court found in favor of defendants on both the Section 1557 and Title VII claims. Thus, employers are advised to review their plans to ensure that services to treat gender dysphoria and related conditions are made available to their covered employees.

President Trump’s recently issued Executive Order entitled “Strengthening Retirement Security In America” (the “EO”) may be helpful to businesses that sponsor or participate in multiple employer retirement plans (“MEPs”), as well as single employer plans, even if the sponsors and employers are not small business owners. While the stated purpose of the EO, which was issued on August 31, 2018 (the “EO Date”), is to “promote retirement security for America’s workers,” the EO directs attention to small business owners (less than 100 employees), noting that such businesses are less likely than larger businesses to offer retirement benefits. The EO also notes that regulatory burdens and complexity can be costly and discourage businesses, especially small ones, from offering retirement plans to employees. This post summarizes the four actions identified in the EO that the Federal Government may take to promote retirement security. While these actions are intended to benefit small businesses, large businesses that participate may benefit as well.

First, the EO may expand the circumstances under which a business or organization can sponsor or participate in an MEP. The EO directs the Secretary of Labor to consider, within 180 days following the EO Date, proposing regulations to clarify when a group or association of employers or other appropriate business or organization can be treated as an “employer” within the meaning of Section 3(5) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The definition of “employer” is significant, as an employee benefit plan, such as an MEP, is typically sponsored by an “employer”. (An “employee organization”, such as a labor union, may also sponsor an employee benefit plan.) If an MEP were sponsored by businesses that were not considered a “group or association of employers” pursuant to Section 3(5) of ERISA, the MEP would not be treated as a single plan covering all of the participating businesses. In that case, each business participating in the MEP would be treated as sponsoring its own plan for all purposes under ERISA and would have to separately comply with ERISA’s requirements, such as preparing a written plan document and summary plan description, having an ERISA bond, and filing a Form 5500. Clarification of the term “employer” may allow businesses that sponsor or participate in single employer plans to treat such plans as an MEP and thereby minimize their individual responsibilities under ERISA. The clarification may also create new opportunities for businesses to sponsor MEPs.

Second, the EO may reduce compliance burdens for MEP sponsors. The EO directs the Secretary of the Treasury to consider, within 180 days following the EO Date, amending regulations to modify the rule providing that if one participating employer in an MEP fails certain non-discrimination requirements, the entire MEP fails. For example, under current Treasury regulations, the actual deferral percentage test and actual contribution percentage test are applied separately to each participating employer in the MEP, as if that employer maintained a separate plan. If one participating employer fails one of the tests, then the MEP fails the test and could potentially be disqualified for all participating employers. This regulation can present a dilemma for MEP sponsors, as they cannot be certain that each participating employer will satisfy the non-discrimination requirements. Therefore, modification of the regulations should benefit businesses that sponsor MEPs.

Third, the EO may reduce the costs associated with required disclosures to participants in MEPs, and in single employer plans. The EO directs the Secretaries of Labor and Treasury to review, within one year following the EO Date, actions that could make retirement plan disclosures more useful for participants, while reducing costs for sponsors and participating employers.

Finally, the EO directs the Secretary of the Treasury to determine, within 180 days following the EO Date, whether the actuarial tables used to calculate the amount of required minimum distributions should be updated annually (or on another periodic basis) to reflect current mortality data. This update could reduce the amount of annual required minimum distributions, which would benefit participants in single employer plans, as well as in MEPs. Such change could also reduce the administrative burden on plan sponsors and participating employers associated with making these distributions.

Takeaways

If the actions described above result in changes in law, such changes should benefit businesses that sponsor or participate in MEPs and single employer plans.   In addition, such changes may provide new opportunities for businesses to sponsor MEPs. Given the time frames imposed by the EO, businesses might see proposed regulations or other guidance addressing some of these changes during 2019.

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

In the midst of one of the worst flu seasons to date, many hospitals and other health care organizations enforced mandatory flu vaccine policies for their employees to boost vaccination rates. However, recent litigation and governmental actions should serve as a reminder that health care entities should carefully consider safeguards whenever implementing mandatory vaccine policies and to not categorically deny all requests for religious exemptions based on anti-vaccination beliefs.

In January, the Department of Health and Human Services (HHS) announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) and released a proposed rule to provide protections for health care workers who refuse to participate in services that run counter to their religious beliefs or moral conviction. Recent legal challenges to mandatory vaccination policies in the health care context have also gained media attention.

Earlier this month, the United States Department of Justice (DOJ) accused a county-owned skilled nursing facility (SNF) in Wisconsin of violating a certified nursing assistant’s religious rights when it required her to be vaccinated or be terminated if she refused.  Although the certified nursing assistant believed that the Bible prohibited her from receiving the vaccine, the SNF refused to grant her an exemption from its vaccination policy because she was unable to produce a written statement from the clergy leader supporting her request, as the SNF’s exemption policy required. The DOJ complaint asserts that the SNF’s vaccination policy denies religious accommodations to employees who do not belong to churches with clergy leaders and that the SNF unlawfully denied the employee a reasonable accommodation for her religious beliefs when it refused her request for an exemption.

However, not all requests for accommodation must be honored.  In Fallon v. Mercy Catholic Medical Center, an employee sued his hospital employer for wrongful termination alleging religious discrimination and a failure to accommodate in violation of Title VII of the Civil Rights Act of 1964 when the hospital terminated him for refusing to get his annual flu shot. The Third Circuit Court of Appeals sided with the hospital and held that the employee’s “sincerely held beliefs” were not religious but based on health concerns, and therefore, the hospital did not violate Title VII.

In another recent development, a Massachusetts state Superior Court dismissed a lawsuit filed by the Massachusetts Nurses Association against Brigham and Women’s Hospital for lack of standing when the union challenged the hospital’s flu vaccination policy. The dismissal occurred a few months after the court denied the union’s request for an injunction.  Thus, a plaintiff’s standing to challenge mandatory vaccination policies will be scrutinized.

Key Takeaways

Despite the actions of DOJ and HHS, health care employers are well within their rights to implement a mandatory flu vaccination policy, especially considering the potential implications to patient safety. Employers need to be prepared to handle requests for reasonable accommodations made by employees who have sincerely held religious beliefs against flu vaccination.  When presented with such a request for accommodation, employers should engage in the interactive process with the employee as outlined in this recent blog post.

To lessen the risk of infringing on worker’s rights, many health care entities are employing non-mandatory tools and policies to boost employee vaccine participation through positive enforcement rather than with the threat of being fired. For example, health care entities can ensure that employees are educated and reminded about the benefits of being vaccinated, provide free and convenient access to vaccines, and issue small incentives and rewards to employees who are vaccinated.

Whenever implementing a mandatory vaccination policy, employers should be prepared for a challenge. Essentia Health required its employees to receive the flu vaccination and sustained a public legal challenge from three hospital unions.  Essentia prevailed, discharging 50 workers who refused to be vaccinated.

Lastly, health care entities should review applicable state-worker vaccination laws to ensure they are in compliance with such laws when deciding upon vaccination policies.

Nathaniel M. Glasser
Nathaniel M. Glasser

On July 18, 2016, the final rule implementing Section 1557 of the Affordable Care Act (“ACA”) went into effect.   Section 1557 prohibits health care providers and other covered entities from refusing to treat individuals or otherwise discriminating on the basis of race, color, national origin, sex, age, or disability in any health program or activity that receives federal financial assistance or is administered by an executive agency.

While the rule does not apply to employment, it derives many of its standards from existing federal civil rights laws and the federal government’s current interpretations of those laws.  Covered entities (which include, for example, hospitals, health clinics, health insurance programs, community health practices, physician’s practices, and home health care agencies) should be particularly aware of the protections granted to individuals with these protected characteristics:

  • Sex – Under the rule, prohibited sex discrimination includes differential treatment based upon pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping and gender identity. Covered entities should be particularly aware that they must treat individuals consistent with their gender identity; they cannot deny or limit sex-specific health care just because the individual seeking such services identifies as belonging to another gender; and they cannot categorically exclude coverage for health care services related to gender transition.
  • National Origin – Covered entities must take “reasonable steps” – which may include providing language assistance services such as oral language assistance or written translation – to provide “meaningful access” to individuals with limited English proficiency.
  • Disability – Covered entities must take “appropriate steps” to ensure that communications with individuals with disabilities are as effective as communications with others; make all programs provided through electronic and information technology accessible, unless doing so would impose financial or administrative burdens or fundamentally alter the program; and, in most instances, comply with the 2010 Americans with Disabilities Act Standards for Accessible Design when constructing or altering physical facilities.

Now that the final rule has gone into effect, a covered entity has 90 days to post various notices for beneficiaries, enrollees, applicants, and members of the public.  The primary notice requires the covered entity to state its compliance with Section 1557 and the availability of the various accommodations under the rule.  The Director of the Office for Civil Rights of the U.S. Department of Health and Human Services has made available a sample notice that covers the information required by this notice, but covered entities are advised to work with counsel to ensure they are in compliance with the rule.  In addition, covered entities must post a nondiscrimination statement, and any tagline (i.e., short statement indicating the availability of language assistance services) must be posted in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant state(s) (sample translated resources may be found here).  Again, covered entities are advised to work with counsel to ensure compliance with these notice and posting requirements.

To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

Click here to read the full Health Care and Life Sciences Client Alert.

A recent article in Bloomberg BNA’s Health Insurance Report will be of interest to health industry employers: “ACA’s Employer ‘Pay or Play’ Mandate Delayed – What Now for Employers?” by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green’s Washington, DC, office.

Following is an excerpt:

The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility” provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their obligations with respect to the shared responsibility rules and implement system changes, oftentimes with imperfect information to guide their efforts to comply with ACA.

Understanding the difficulties that both employers and the health insurance exchanges or marketplaces would have, the Internal Revenue Service (IRS) on July 2 issued a press release stating it would delay the shared responsibility provisions and certain other reporting requirements for one year, until Jan. 1, 2015.

On July 9, the IRS published Notice 2013-45 (Notice), providing additional information on the one-year delay. Specifically, the following three ACA requirements are delayed:

  1. The employer shared responsibility provisions under Section 4980H of the Internal Revenue Code (Code), otherwise known as the employer mandate;
  2. Information reporting requirements under Section 6056 of the Code, which are linked to the employer mandate; and
  3. Information reporting requirements under Section 6055 of the Code, which apply to self-insuring employers, insurers, and certain other providers of ‘‘minimum essential coverage,” as defined by ACA.

The IRS notice clarifies that only the above three requirements are delayed. The notice does not affect the effective date or application of other ACA provisions, such as the premium tax credit or the individual mandate. Given the fact that the law itself is not delayed, the notice has raised significant issues for employers despite their being generally pleased with the mandate and penalty delay. This article will discuss the impact of the delay and some of the issues that employers should consider as a result of the delay.

Click here to download the full article in PDF format.

The attached file is reproduced with permission from Health Insurance Report, 19 HPPR 28, 7/31/13. Copyright © 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com