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Health Care Benefits Law

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Jeffrey D. Mamorsky


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Making sense of the nonstop parade of federal and state legislation, regulation and decisional law governing health care benefits is not an easy task. For professionals in the field, however, it is an essential one. Fortunately, there is a comprehensive and practical guide to this complex, evolving area that clarifies the legal framework, including the most recent developments, and keeps you on top of every important issue.

Health Care Benefits Law explains how current laws affect the design and day-to-day administration of health care plans. It also helps you identify—and deal with—hidden areas of liability. You'll find detailed coverage of such topics as: ERISA reporting and disclosure requirements; the Patient Protection and Affordable Care Act (PPACA) and the regulations clarifying its provisions; negotiating ASO (Administrative-Services-Only) contracts; tax treatment of health benefits; auditing utilization review; health and welfare benefit plans and ERISA fiduciary requirements; managed care liability; COBRA (including all the sample notices and forms that an employer needs to comply effectively); Medicare Secondary Payer issues; provision of benefits by professional employer organizations (PEOs); the Americans with Disabilities Act; the Health Maintenance Organization Act; HIPAA; the Family and Medical Leave Act; health care and employee benefit provisions of the 2005 Bankruptcy Act; the Tax Relief and Health Care Act of 2006; and more.

You'll get sample forms, checklists, drafting tips, and the perspective you need to cope with any challenge. Whether you are an attorney, health care plan sponsor, employer or multi-employer trustee, insurance company, HMO, or other health care provider, this guide will save you hours of painstaking work and greatly simplify compliance.

Book #00660; looseleaf, one volume, 1,564 pages; published in 2001, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-096-8


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1564
  • ISBN: 978-1-58852-096-8
  • Pub#/SKU#: 660
  • Volume(s): 1

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  • Jeffrey D. Mamorsky

Jeffrey D. Mamorsky is a partner in the New York office of the international law firm of Greenberg Traurig, LLP. He is the editor of the Employee Benefits Handbook, as well as the founder and editor-in-chief of the Journal of Compensation and Benefits. He is the author of Employee Benefits Law: ERISA and Beyond and Health Care Benefits Law, both published by Law Journal Press.

Mr. Mamorsky graduated from New York University College of Arts & Sciences and holds a J.D. from New York Law School and an LL.M. in taxation from New York University Law School.


Also by Jeffrey D. Mamorsky:
Employee Benefits Law: ERISA and Beyond

CHAPTER 1
ERISA Fiduciary Responsibilities

§ 1.01 Introduction
§ 1.02 Identifying the ERISA Fiduciary
[1] Responsibility Determines Status
[2] Directors as Fiduciary
[3] Third Party Administrator as Fiduciary
[4] Company Not De Facto Co-Administrator
[5] ERISA Liability for Nonfiduciary Advisers
§ 1.03 Rules Prohibiting Transactions Between Plan and Party-in-Interest
[1] Parties-in-Interest
[2] Internal Revenue Service’s Disqualified Person Definition
[3] Prohibited Transactions
[4] Adoption and Expansion of the DOL Voluntary Fiduciary Correction Program (“VFCP“)
§ 1.04 Particular Plan Requirements
[1] Introduction
[2] Mandatory Plan Requirements
[3] Mandatory Trust Requirements
[4] Plan Assets Must Be Held for the Exclusive Benefit of Participants
[5] Qualification Standards
§ 1.05 Fiduciary Standards
[1] Prudent-Man Rule
[2] Adherence to Plan Documents
[3] Allocating Fiduciary Responsibility
[4] Providers Must Pass Along Discounts
§ 1.06 Claims Procedure
[1] Filing a Claim for Benefits
[2] Failure to Process Claims Promptly
[3] Misrepresentation by Third Party Claims Administrator
[4] Misrepresentation by Employee
[5] Duty to Notify
[6] Failure to Provide Complete and Accurate Information to Beneficiary
[7] Failure to Notify Plan of Termination
[8] Denial of Benefits
§ 1.07 Litigation Standard of Review
[1] Why Written Criteria Are Important
[2] Exclusions Unenforceable
[3] Clinical Trial Not Excluded
[4] Experimental Treatment Not Covered
[5] In Vitro Not Covered
[6] Vicarious Liability
§ 1.08 Plan Procedures Litigation

CHAPTER 2
Tax Treatment of Health Benefits

§ 2.01 Introduction
§ 2.02 General Rules for Health Plans
[1] Exclusion from Taxation of Premiums and Benefits
[2] Eligible Medical Expenses
[3] Employer Tax Deduction
[4] Federal Tax Withholding
§ 2.03 Health Plan Qualification Requirements
[1] Written Plan
[2] Employees vs. Self-Employed Individual
[3] Coverage of Dependents
§ 2.04 Nondiscrimination Tests for Health Plans
[1] Identification of Self-Insured Arrangement
[2] Highly Compensated Individuals
[3] Eligibility Testing
[4] Nondiscriminatory Benefits
[5] Taxation of Excess Reimbursements Under a Discriminatory Health Plan
§ 2.05 Cafeteria Plans
[1] Qualification Requirements
[2] Flexible Spending Accounts
[3] Nondiscrimination Tests
[4] Effect of the Family and Medical Leave Act on the Operation of Cafeteria Plans
§ 2.06 Health Reimbursement Accounts
[1] Basic Design and Rules
[2] Advantages of HRAs
[3] Disadvantages of HRAs
[4] Design Considerations
[5] Other Important Considerations
[6] Private Letter Rulings
[7] Summary
§ 2.07 Health Savings Accounts
[1] IRS Guidance
[2] DOL Guidance
[3] Interaction of Health Savings Accounts with Other Employer-Provided Health Reimbursement Plans
[4] The Tax Relief and Health Care Act of 2006
[5] Employer Comparable Contributions to Health Savings Accounts and the Requirement of Filing Return for the Excise Tax-IRS Regulations

CHAPTER 3
Health Benefit Plans and ERISA Preemption

§ 3.01 Introduction
§ 3.02 ERISA Preemption
§ 3.03 Court Decisions Interpreting Preemption
[1] State-Mandated Benefits
[2] Plan Administration
[3] Workers’ Compensation Statute Preempted
[4] State Surcharges Not Preempted
§ 3.04 Health Plan Funding Alternatives andPreemption
[1] Conventional Insurance
[2] Minimum Premium Plans
[3] Self-Insurance
[4] Stop-Loss Coverage

CHAPTER 4
Employer Liability in Managed Care

§ 4.01 Introduction
[1] Elements of Managed Care
§ 4.02 Theories of Liability Arising from Managed Care
[1] Liability Arising from Selection or Retention of Health Care Providers
§ 4.03 Impact of ERISA on Employer Liability forManaged Care
[1] Preemption of State Laws
[2] Limitation of the Preemption Doctrine
[3] Impact of ERISA on Potential Damage Awards
§ 4.04 Potential Employer Liability Under ERISA
[1] Plan Requirements
[2] Employer Guidelines
[3] Communication of Plan Provisions
[4] Employer Guidelines
[5] Claims Procedures
[6] Fiduciary Standards
§ 4.05 Employer Contracting Strategies to AvoidLiability
[1] Selecting and Contracting with a Managed Care Vendor
§ 4.06 Employer Liability Under Proposed Federal Patients’ Bill of Rights Legislation

CHAPTER 5
Plan Administration

§ 5.01 Auditing Claims Administration Performance
[1] Introduction
[2] Defining Audit Objectives
[3] Auditing Claims
[4] Assessing the Claims Office and Reviewing Procedures
[5] Evaluating Claims Systems
[6] Managed Care Program Integration
[7] Improving Administrator Performance
§ 5.02 Negotiating Administrative-Services-OnlyContracts
[1] Introduction
[2] ERISA Considerations
[3] Common Provisions in Administrative-Services-Only Contracts
[4] Less Common Features in Administrative-Services-Only Contracts
§ 5.03 Sample Administrative-Services-Only Contract
[1] ASO-A (Simplified)
[2] Sample Administrative-Services-Only Contract ASO-B (Detailed)
§ 5.04 Auditing Utilization Review and ERISACompliance
[1] Introduction
[2] Agency Theory
[3] Corporate Negligence Theory
[4] Medical Management Liability
[5] Liability Based on Provider Incentives
[6] ERISA Liability
§ 5.05 Subrogation: The Plan Administrator’s Duty toRecover Plan Assets from Tortfeasors
[1] Introduction
[2] The Right of Subrogation: How Health Care Plans Recover from Tortfeasors
[3] Some Practical Issues in a Recovery Program
[4] Reasonable Expectations of an Effective Recovery Program
[5] Background on Legal History
[6] Restrictions on Tort Recovery
[7] Restrictions on Subrogation
[8] ERISA and Federal Common Law
[9] Significance of the Legal Principles
[10] Well-Designed Plan Language
[11] The Reimbursement Agreement
[12] Are these Plan Provisions Effective?
[13] A Program for Effective Administration of Third-Party Recoveries

CHAPTER 6
Qualified Medical Child Support Orders

§ 6.01 QMCSO
[1] Definition
[2] Required Information
§ 6.02 The Plan Administrator’s Responsibilities
§ 6.03 Rights of Alternative Recipients
§ 6.04 Enforcement
§ 6.05 SSA Amendments Enabling State Enforcement
[1] Requirements for Insurers
[2] Requirements for Employers
[3] Additional Requirements
§ 6.06 Unanswered Questions
[1] Preexisting Conditions
[2] Open Enrollment
[3] Interim Coverage
[4] COBRA
[5] Nonparticipating Employees
§ 6.07 What Employers Should Do
§ 6.08 Procedures and Samples
[1] Determining If a Medical Child Support Order Is Qualified
[2] Samples

CHAPTER 7
COBRA

§ 7.01 COBRA Continuation Coverage
[1] Overview
[2] Penalties for Failure to Comply with COBRA
§ 7.02 Plans that Are (and Are Not) Subject to COBRA
[1] What Is a Group Health Plan?
[2] What Is a Small-Employer Group Health Plan?
[3] How Many Plans Does a Plan Sponsor?
[4] “Packaged“ Health Care Plans
[5] COBRA and Cafeteria Plans
§ 7.03 Qualified Beneficiaries and Qualifying Events
[1] Who Is Entitled to COBRA Continuation Coverage, Why and for How Long
[2] Employees and 18-Month Qualifying Events
[3] “Renegade Dependents“ and 36-Month Qualifying Events
[4] Multiple Qualifying Events
[5] Disabled Individuals and 29-Month Qualifying Events
[6] Retirees, Bankruptcy and Unlimited COBRA Continuation Coverage
[7] Dates When the Qualifying Event Occurs and Coverage Ends
§ 7.04 The Charge for COBRA Continuation Coverage
[1] Amount of the Charge for COBRA Continuation Coverage
[2] Determining the Amount Insured Plans May Charge
[3] Determining the Amount Self-Insured Plans May Charge
[4] Increases and Decreases of the Amount Charged
[5] Grace Periods
[6] Who Loses if the COBRA Participant Does Not Pay the Amount Charged?
[7] Difference Between the Premium and the Amount Charged
[8] Significant Changes to Continued Health Coverage Under COBRA in 2009
§ 7.05 COBRA and USERRA Notices
[1] Multiple COBRA Notice Requirements
[2] The General (or Initial) COBRA Notice
[3] The COBRA Election Notice
[4] Notice of Unavailability of COBRA Coverage
[5] Notice of Early Termination of COBRA Continuation Coverage
[6] Notice of Termination of COBRA Continuation Coverage at the End of the 18-Month or 36-Month COBRA Period
[7] Other COBRA Notices that the Employer Should Provide
[8] COBRA Notices that Plan or COBRA Participants Must Provide
[9] Judicial Interpretation of COBRA Notice Requirements
[10] Dealing with COBRA and USERRA Notice
§ 7.06 Day-to-Day Administration of COBRAContinuation Coverage
[1] Basic Day-to-Day Administration
[2] Enrollment in COBRA Continuation Coverage
[3] Billing the Charge for COBRA Continuation Coverage
[4] Collecting the Charge for COBRA Continuation Coverage
[5] Maintaining Rights of COBRA Participants
[6] Monitoring COBRA Administration
§ 7.07 COBRA and Alternative or Duplicate Coverage
[1] Alternatives to COBRA Continuation Coverage
[2] COBRA and Duplicate Coverage
[3] Who Pays First When COBRA and Other Coverage Coexist
§ 7.08 When COBRA Continuation Coverage EndsEarly (and When It Doesn’t)
[1] Terminating Events
[2] Termination of All Health Care Plans
[3] Failure to Pay the Charge for COBRA Continuation Coverage
[4] Obtaining Other Group Health Coverage
[5] Becoming Entitled to Medicare
[6] Termination of Coverage for Cause
[7] Ceasing to Be Disabled During the 11-Month Extended COBRA Period
[8] Notice Requirements When COBRA Continuation Coverage Ends
§ 7.09 COBRA and Purchases and Sales of Businesses
[1] COBRA Continuation Coverage When Businesses Are Sold
[2] Basic Principles When Businesses Are Sold
[3] When the Seller Goes Out of Business
[4] When the Seller Remains in Business
§ 7.10 How COBRA Affects Multiemployer Plans andInteracts with Other Laws
[1] COBRA and Multiemployer Plans
[2] FMLA (Family and Medical Leave Act) and COBRA
[3] USERRA (Uniformed Services Employment and Reemployment Rights Act) and COBRA
[4] State Continuation of Coverage Laws

CHAPTER 8
ERISA Reporting and Disclosure

§ 8.01 Requirements in General
§ 8.02 Covered Plans
[1] Statutory Exemptions
[2] Practices and Arrangements
[3] Trust Requirement
[4] Limited Exemptions
§ 8.03 Reporting to Government Agencies
[1] Filing the SPD with the DOL
[2] Filing Form 5500 with the DOL
§ 8.04 Disclosure to Participants
[1] Administrator Obligations
[2] Automatic Disclosure of SPD
[3] Automatic Disclosure of SMM
[4] Automatic Disclosure of Summary Annual Report
[5] Other Automatic Disclosures
[6] Written Explanation of Claim Denial
[7] Disclosure Upon Request
[8] Disclosure Upon Examination
[9] Charges for Documents
[10] Who Can Examine Plan Documents
[11] Where Documents Must Be Made Available
§ 8.05 Liability for Inaccurate Disclosure
[1] Potential Liability
[2] Disclaimer as Protection
[3] Other Trouble Spots
[4] Employee Communication Guidelines
[5] Disclosure of Usual and Customary Fee Schedules
§ 8.06 Claims Procedures for Employee Benefit Plans
[1] Who May Represent a Claimant
[2] Structure and Scope of the Final Regulation
[3] Limitations on Arbitration and Multiple Appeals
[4] Claim Determinations and Appeals
[5] Content of Notices of Adverse Benefit Determinations
[6] Preemption of State Law
§ 8.07 Retention of Records Under ERISA for Employee Benefit Plans
[1] Statutory Provisions
[2] Records Retention Generally
[3] Electronic Records Retention

CHAPTER 9
Retiree Medical Benefits

§ 9.01 Postretirement Health Care
[1] Overview of Retiree Benefits
[2] Integration with Medicare
[3] Financial Accounting Standards Board’s Standard
[4] Valuation of Retiree Medical Benefits
[5] Funding
[6] Future Plan Designs End Benefits
§ 9.02 Postretirement Health Benefits Obligation
[1] Statement of Financial Accounting Standards No. 106: Overview of Issues
[2] Recognizing and Measuring Liability
[3] Transition Rules
[4] Funding the Plan
[5] Insured Liability Buyouts
[6] Disclosure Requirements
§ 9.03 Measuring the Postretirement Obligation
[1] Ongoing Issues After Adopting Statement of Financial Accounting Standards No. 106
[2] Analysis of Actuarial Assumptions
[3] Measuring the Obligation
[4] SOP 94-6 Adds New Benefits-Related Disclosures
[5] Accounting for Plan Events
[6] Auditing Considerations
§ 9.04 Prefunding Postretirement Health Plans
[1] Informal Funding Vehicles
[2] Formal Funding Vehicles
§ 9.05 Tax and Other Prefunding Considerations
[1] Tax Deductions for Contributions to Formal Funds
[2] Prefunded Plans
[3] Court Decisions Affecting Plan Termination
§ 9.06 Modifying or Terminating Retiree MedicalBenefits
[1] Factors Influencing Changes in Retiree Health Benefits
[2] Legal Context of Retiree Medical Plans
[3] Contract Analysis Under ERISA Plans
[4] Interpretation of Ambiguous Contract Provisions
[5] ERISA Fiduciary Claims
[6] Special Circumstances Affecting Plan Modification or Termination
[7] Position of the Courts on Retirees’ Right to Benefits
§ 9.07 Retiree Drug Subsidy Program

CHAPTER 10
Health Maintenance Organization Act

§ 10.01 Development of HMOs
§ 10.02 Implications for Employers
[1] Mandatory Dual Choice
[2] Community Rating
[3] Employer Contributions
[4] State Insurance Laws

CHAPTER 11
Medicare Secondary Payer Issues

§ 11.01 Medicare Secondary Payer (MSP) Laws
[1] Employer Responsibilities Under MSP
[2] Medigap Policies
§ 11.02 Enforcement of Medicare Secondary PayerLaws
[1] Private Cause of Action
[2] Excise Tax for Nonconforming Group Health Plans
[3] Prohibition of Financial Incentives Not to Enroll in a Group Health Plan
§ 11.03 Identifying Secondary Payer Situations
§ 11.04 Health Coverage Data Bank
§ 11.05 Recovery of Conditional Payments
[1] State Laws Do Not Limit Recovery
[2] Private Claims-Filing Requirements Do Not Limit Recovery
[3] Recovery from Third-Party Administrators
[4] Third-Party Administrators Not Liable
[5] Problem of Double Liability
[6] Restrictions on Governmental Rights of Recovery
[7] Supreme Court Decision Regarding Subrogation Question
§ 11.06 Medicare + Choice: New Alternatives inMedicare
[1] Introduction
[2] Types of Medicare + Choice Plans
[3] Medigap
[4]  Eligibility and Enrollment
[5] Benefits
[6] Beneficiary Protections
[7] Relationships with Providers
[8] Payments to Plans
[9] Risk Adjustment
[10] Adjusted Community Rates
[11] Declining Enrollment Rates in Medicare + Choice Plans
§ 11.07 Health Care Insolvency
[1] Introduction
[2] Executory Contracts
[3] The Automatic Stay and Setoff/Recoupment of Prepetition Overpayments
[4] Protection Against Discrimination by Governmental Units
[5] Absolute Priority Rule
[6] Jurisdiction
[7] Eligibility Issues in Health Care Bankruptcies
§ 11.08 Public Funding of Medical Services and Drugs and Its Impact on the Private Sector
[1] Primary Public Programs that Support Medical Services
[2] How Federal Programs, Especially Medicare, Influence Private Insurance
[3] Overview of Medicare and Medicaid
[4] Administration of Medicare and Medicaid
[5] Hospital Payments Under Medicare
[6] Doctors Under Medicare
[7] Drugs Under Medicare and Medicaid
[8] Anti-Kickback and Anti-Referral Laws
[9] Carrier Responsibilities - Review of Services and Payment for Services

CHAPTER 12
Family and Medical Leave Act

§ 12.01 Overview
§ 12.02 Coverage
§ 12.03 Eligibility for Leave
[1] Eligibility Requirements
[2] Qualifying Events for FMLA Leave
[3] Adoption and Foster Care
[4] Domestic Partners
[5] Family Care
[6] Serious Health Condition
[7] Doctor Visits or Therapy
[8] Voluntary or Cosmetic Treatments
[9] Substance Abuse
[10] Continuing-Treatment Requirement
[11] Inability to Perform the Job
[12] Support for Leave Request for Family Care
[13] Intermittent or Reduced Leave Schedule for a Serious Health Condition
[14] Health Care Provider
§ 12.04 Definition of “Leave“
[1] Working Spouses
[2] Reduced Workweek or Intermittent Leaves
[3] Transfer to an Alternative Position
[4] Calculation of Leave Taken
§ 12.05 Paid Leave
[1] Paid Family Leave
[2] Paid Vacation or Personal Leave
[3] Using Paid Leave for FMLA Purposes
[4] Qualifying Reason Needed to Grant Leave
[5] Designating FMLA Leave
§ 12.06 Benefits Coverage
[1] Same Benefits Required
[2] When Coverage Ceases
[3] Payment of Premiums
[4] Methods of Payment
[5] Multiemployer Plans
[6] Failure to Make Timely Premium Payments
[7] Recovering Employer Premiums
[8] Medical Emergency Exceptions
[9] Guidelines for Recovering Premiums
[10] Employee’s Rights on Returning to Work
[11] Protection of Employees
§ 12.07 Notice
[1] Posting Requirements
[2] Employee Notice
[3] Actions Taken Against Employees
[4] Medical Certification
[5] Required Information
[6] Second and Third Opinions
[7] Employee Status Reports
[8] Fitness-for-Duty Report

CHAPTER 13
ADA’s Impact on Employee Benefit Plans

§ 13.01 Statutory and Regulatory Framework
[1] Terms and Definitions
[2] Discrimination
[3] EEOC’s Interim Enforcement Guidelines
[4] Application to Employee Health Benefits Plans
§ 13.02 General Standards for Insured and Self-Insured Plans
[1] Family Health Coverage Not an ADA Issue
[2] Curtailing Coverage
[3] Denial of Experimental Treatment Violates ADA
[4] Similarities to the Age Discrimination in Employment Act
[5] Interpreting “Bona Fide“ and “Subterfuge“ in the ADA
[6] Insured Plans and Risk Classifications
[7] Discrimination in Benefits
[8] Equal Employment Opportunity Commission Interpretation
§ 13.03 Determining the Meaning of “Subterfuge“
[1] Cost Justification
[2] Business Purpose
[3] Data Collection
§ 13.04 Enforcement
[1] Time Limits
[2] Attorney Fees
[3] Dispute Resolution

CHAPTER 14
Federal Prosecution of Health Care Fraud

§ 14.01 Introduction
§ 14.02 Defining Health Care Fraud
§ 14.03 Prime Antifraud Targets
[1] Overcharging
[2] Billing for Services Not Rendered
[3] Billing for Inappropriate or Unnecessary Services
[4] Other False Billings
[5] Falsification of Cost Reports
[6] Kickbacks/Bribes
[7] HMO/PPO “Screening“
[8] Multiple Coverage and Secondary Payers
[9] Unapproved Treatments and Appliances
[10] Price Fixing and Other Anticompetitive Schemes
[11] METs and MEWAs
§ 14.04 Federal Statutes Used to Fight Health CareFraud
[1] Statute List
[2] Civil and Administrative Penalties
[3] Federal Criminal Enforcement Authorities
[4] Federal Civil Enforcement Authorities
§ 14.05 Legislative Proposals
[1] NAIC Insurance Fraud Proposal
[2] The Insurance Protection Act
[3] Mail and Wire Fraud Statute Amendments
§ 14.06 How to Prepare for an Investigation
§ 14.07 Fraud and Abuse Prevention
[1] Compliance Guidance
[2] Corporate Integrity Agreements
[3] Industry Guidance
[4] Medicare Error Rate
[5] Recommended Systemic Improvements
§ 14.08 What Are the Legal Obstacles to “Pay for Performance“?
[1] What Is P4P?
[2] Antitrust Concerns
[3] Federal Anti-Kickback Statute
[4] Limitation of Care
[5] Confidentiality

CHAPTER 15
Regulation of Multiple Employer Welfare Arrangements

§ 15.01 Introduction
§ 15.02 The Basis for MEWAs
§ 15.03 Federal Regulation
[1] Fully Insured Plans
[2] Plans Not Fully Insured
[3] Non-ERISA Plans
§ 15.04 Department of Labor Involvement
§ 15.05 Defining the Scope of Federal Preemption
[1] Taft-Hartley Plans
[2] Single Employer Plans
§ 15.06 Compliance with State Insurance Law
[1] Reserves
[2] DOL’s Deference to States
§ 15.07 Compliance with ERISA
§ 15.08 IRS Compliance
§ 15.09 Compliance with COBRA
§ 15.10 ERISA and Workers’ Compensation
§ 15.11 Expanded Reporting Requirements
[1] DOL Rule
[2] What a MEWA Is
[3] How MEWAs Are Regulated
[4] Information to Be Disclosed on DOL Form M-1
§ 15.12 The Prospect for MEWAs

CHAPTER 16
Health Insurance Portability and Accountability Act of 1996

§ 16.01 Statute Policy
§ 16.02 Group Health Plan Portability, Access andHealth Status Nondiscrimination
[1] General Restrictions on Preexisting Condition Exclusions
[2] “Creditable Coverage“ Defined
[3] “Excepted Benefits“
[4] Certifications of Creditable Coverage
[5] 63-day Breaks in Creditable Coverage
[6] Standard and Alternative Methods for Crediting Prior Coverage
[7] No Preexisting Condition Exclusions for Newborns and Adopted Children
[8] No Preexisting Condition Exclusions for Pregnancy
[9] Special Enrollment Periods Due to Loss of Other Coverage
[10] Special Enrollment Periods for Dependents
[11] HMO Affiliation Periods
[12] Health Status Nondiscrimination
[13] New Participant Disclosure Deadlines for Material Reductions in Group Health Plans
[14] Additional Information that Must Be Included in Plan Documents and SPDs
[15] Guaranteed Renewability in Multi-Employer Plans and MEWAs
[16] MEWA Reporting Requirement
[17] State Flexibility and Preemption
[18] Effective Dates
[19] Penalties
[20] Implications
§ 16.03 Group Health Insurer Requirements
[1] Guaranteed Issue Not Required in the Large Group Market
[2] Guaranteed Issue In the Small Group Market
[3] Insurers May Use Certain Underwriting Requirements to Deny Coverage
[4] Denial of Coverage May Result in a Suspension of New Business Activity in a Service Area
[5] Guaranteed Renewal Requirements
[6] Rules Regarding a Health Insurer’s Exit from a Marke
[7] Disclosure Requirements
[8] Special Rules Regarding Association Coverage
[9] Study of Conditions in the Large Group Market
[10] Preemption/State Flexibility
[11] Penalties
[12] Implications
§ 16.04 Individual Health Insurer Requirements
[1] Guaranteed Issue to Eligible Individuals
[2] Coverage Requirements
[3] Optional State Programs/State Flexibility
[4] Discontinuation of Health Coverage/Exit from the Market
[5] Federal Preemption of State Insurance Laws
[6] Penalties
[7] Implications
§ 16.05 COBRA Amendments
[1] Disability May Arise Within First 60 Days of COBRA Continuation
[2] Any Disabled Qualified Beneficiary May Become Entitled to Up to 29 Months COBRA Continuation
[3] Newborns and Adopted Children Are Qualified Beneficiaries
[4] Coverage Under Another Group Health Plan
[5] Medicare Entitlement Followed by Qualifying Event
[6] Effective Dates
[7] Penalties
[8] Implications
§ 16.06 Long-Term Care
[1] Federal Tax Treatment of Long-Term Care Clarified
[2] Long-Term Care Insurance Not Permitted Under Cafeteria Plans or Flexible Spending Accounts
[3] COBRA Exclusion
[4] Long-Term Care Insurance Coverage Provided by a Rider to a Life Insurance Contract
[5] Treatment of Certain State-Maintained Plans
[6] Annual Reporting Requirement for Long-Term Care Benefits Payers
[7] Long-Term Care Study
[8] Consumer Protection Provisions
[9] Life Insurance Company Reserves
[10] Effective Dates
[11] Penalties
[12] Implications
§ 16.07 Administrative Simplification
[1] National Standards for Electronic Transmission of All Health Care Coverage Information
[2] Individual Health Identifiers
[3] Electronic Authentication of Signatures
[4] Coordination of Benefits
[5] Protection of Privacy
[6] Effect of State Law
[7] Penalties
[8] Implications
[9] HIPAA Administrative Enforcement Regulations to Conform to the HITECH Act
[10] Significant Financial Penalties Imposed by the Department of Health and Human Services
§ 16.08 Health Care Fraud and Abuse
[1] Federal Initiative to Combat Health Care Fraud in Public and Private Health Plans
[2] Expulsion from Medicare and Medicaid for Health Care Fraud
[3] National Fraud Data Bank
[4] Medicare Beneficiary Incentive Program
[5] Intermediate Sanctions on Medicare HMOs
[6] Exception to Anti-Kickback Penalties for Medicare HMOs’ Risk-Sharing Arrangements
[7] Advisory Opinions Required Under the Medicare/Medicaid Anti-Kickback Law
[8] Penalties
[9] Fraud Against “Federal Health Care Programs“
[10] Implications
§ 16.09 Accelerated Death Benefits
[1] Terminally Ill Insureds
[2] Chronically Ill Insureds
[3] Qualified Accelerated Death Benefit Riders Treated as Life Insurance
[4] Viatical Settlement Agreements
[5] IRS Reporting Requirements
[6] Penalties
[7] Implications
§ 16.10 Medical Savings Accounts
[1] Tax-Favored MSA Available to the Self-Employed and to Employees of Small Employers
[2] A High-Deductible Health Plan Must Accompany an MSA
[3] No Income Tax on MSA Earnings or Distributions for Medical Expenses
[4] Limited Number of MSAs Permitted During Four-Year Experiment
[5] HMOs May Offer MSA-Related Products
[6] Penalties
[7] Implications
§ 16.11 Interim Final Rules Under the Health InsurancePortability and Accountability Act of 1996
[1] In General
[2] Preexisting Condition Exclusion
[3] Excepted Plans and Excepted Benefits
[4] Rules Relating to Creditable Coverage
[5] Certificates and Disclosure of Previous Coverage
[6] Special Enrollment Periods
[7] Nondiscrimination in Eligibility
[8] Preemption of State Laws: State Flexibility
[9] Expansion of ERISA Reporting and Disclosure Requirements
[l0] Post-Interim Rules on Guidance Under HIPAA and Related Laws
§ 16.12 Mental Health Parity and Minimum MaternityStay Benefits
[1] Mental Health Parity
[2] Implications
[3] Amendments to Mental Health Parity Provisions
[4] Minimum Maternity Stay Benefits
[5] The Effect on Employers of ERISA’s Mandated Welfare Benefits
[6] What Might Be Next?
§ 16.13 Temporary Regulations Under the Mental HealthParity Act
[1] Introduction
[2] Increased Cost Exemption
[3] Penalties for Noncompliance
§ 16.14 Interim Rules Governing the Newborns’ andMothers’ Health Protection Act of 1996
[1] Introduction
[2] The General Rule for Hospital Lengths of Stay
[3] Prohibitions
[4] Construction
[5] Notice Requirements Under ERISA and the PHS Act
[6] Applicability in Certain States
§ 16.14 A Final Rules Governing the Newborns’ and Mothers’ Health Protection Act of 1996
[1] Generally
[2] Hospital Length of Stay
[3] Notice Requirements Under ERISA and the Public Health Services (PHS) Act
[4] Applicability in States
[5] Applicability Date
§ 16.15 Compliance with Privacy Requirements Protecting Personal Medical Records Under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“)
[1] Effective Dates
[2] Covered Entities and Related Definitions
[3] Disclosure of Protected Health Information
[4] Mergers and Acquisitions
[5] Enforcement/Penalties
[6] State Law Preemption
[7] Compliance with Other Federal Laws
[8] HIPAA Compliance Action Plan
§ 16.16 Final Modifications to HIPAA Privacy Rule
[1] Patient Consent
[2] Written Acknowledgment of Privacy Notice’s Receipt
[3] Modification of Minimum Necessary Requirement
[4] Business Associate Contracts
[5] Marketing
[6] Disclosure of a Minor’s PHI
[7] Research Use and Disclosure
[8] Authorization Forms: Core Elements and Other Requirements
[9] De-identification of Protected Health Information
[10] Other Clarifications
[11] 2005 HIPAA Regulations Regarding Notice and Creditable Coverage
§ 16.17 Employer Obligations to Protect the Privacy of Medical Records under Group Health Plans
[1] Consequence of Non-Compliance with HIPAA
[2] Comparison of GHP Requirements Based on Type of Group Health Plan
[3] Exchange of Information Between the GHP and the Employer
[4] Implementation
[5] Organized Health Care Arrangements (“OHCAs“)
[6] Employer as Covered Entity and GHP Sponsor
[7] Conclusion
§ 16.18  HIPAA Security Standards
[1] Introduction
[2] Security Requirements and Implementation Features
[3] Implementation of a HIPAA Security Compliance Plan
[4] Civil and Criminal Penalties for HIPAA Security Noncompliance
[5] Conclusion
§ 16.19 Final Rules on Health Plan Nondiscrimination
[1] Background
[2] Clarifications
[3] Wellness Programs
[4] Relationship with Other Laws
§ 16.19A  Genetic Information Nondiscrimination Act
[1] Title I: Genetic Nondiscrimination in Health Insurance
[2] Title II: Prohibiting Employment Discrimination on the Basis of Genetic Information
[3] EEOC Proposed Regulations Under GINA’s Employment Nondiscrimination Requirements
§ 16.20  Part 7 Audits
[1] General Investigative Powers
[2] Investigations of Health and Welfare Plans-DOL Compliance Project
[3] Who to Investigate
[4] Steps in the Investigation Process
[5] Part 7 Self-Compliance Assistance

CHAPTER 17
Welfare Benefits Provided by PEOs

§ 17.01 Introduction
[1] The PEO Industry
[2] Why PEOs Cause Concern
[3] Overview
§ 17.02 Welfare Benefits
§ 17.03 Who Is the Employer?
[1] Co-Employment Under Agency Principles
[2] Co-Employment Under the Code
[3] Microsoft III
§ 17.04 Federal Tax Issues
[1] Excludability of PEO-Provided Welfare Benefits
[2] Welfare Benefits Nondiscrimination Rules
[3] “Leased Employees“
[4] METs, MEWAs and VEBAs
[5] Section 419 Deduction Issues
[6] VEBAs
[7] Taxation of Non-Exempt Trusts and Exempt VEBAs
[8] VEBA and Non-Exempt Trust Reporting Requirements
[9] Proposed PEO Legislation
§ 17.05 PEO Welfare Benefits Under ERISA
[1] Whether a Worker Is Entitled to Welfare Benefits Under a Client Company’s Plan
[2] Potential Client Company Liability Under ERISA for Interference With Rights Under a Welfare Plan
[3] Welfare Plan Amendments
[4] ERISA-Covered Welfare Plan ERISA Obligations
[5] Whether PEOs Maintain Single-Employer Welfare Benefit Plans
[6] Whether a Client Company Establishes or Maintains an ERISA-Covered Welfare Plan
[7] MEWAs and State Insurance Laws
§ 17.06 COBRA and HIPAA
[1] COBRA
[2] HIPAA
§ 17.07 Conclusion

CHAPTER 18
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005(Title XI Health Care and Employee Benefits

§ 18.01 Introduction
§ 18.02 Disposal of Patient Records
§ 18.03 Appointment of Ombudsman to Act as Patient Advocate
§ 18.04 Duty of Trustee to Transfer Patients
§ 18.05 Administrative Expense Claim for Costs of Closing a Health Care Business and Other Administrative Expenses
§ 18.06 “Health Care Businesses“ Definition
§ 18.07 Exclusion from Program Participation Not Subject to Automatic Stay
§ 18.08 Miscellaneous Changes to Health Care Laws
[1] Health Savings Accounts
[2] Unsecured Benefit Plan Contributions
[3] Duties of Debtor That Is a Plan Administrator
[4] Restrictions on Modifying Retiree Benefits
§ 18.09 Conclusion

CHAPTER 19
The Tax Relief and Health Care Act of 2006

§ 19.01 Health Savings Account Provisions
§ 19.02  Medicare Provisions
[1] Improved Quality and Provider Payments
[2] Medicare Beneficiary Protections
[3] Medicare Program Integrity Efforts
§ 19.03 Medicaid and Other Health Provisions

CHAPTER 20
2010 Health Care Reform: The Patient Protection and Affordable Care Act & The Health Care and Education Reconciliation Act

§ 20.01  Introduction to 2010 Legislation
[1] Generally
[2] Timeline
§ 20.02 Small Employer Health Insurance Expense Tax Credit
[1] Generally
[2] Employers Eligible for Section 45R Tax Credit
[3] Calculation of Section 45R Tax Credit
[4] Claiming a Section 45R Tax Credit
[5] Transitional Relief for Taxable Years Beginning in 2010
[6] Issues Not Addressed by IRS Notice 2010-44
§ 20.03 Early Retiree Reinsurance Program
§ 20.04 Health Care Reform’s Impact on Hospitals
§ 20.05 Regulations to Implement the Patient Protection and Affordable Care Act
[1] Generally
[2] Required Coverage of Adult Children to Age Twenty-Six
[3] Status as a Grandfathered Health Plan
[4] Prohibition on Preexisting Condition Exclusions, Lifetime and Annual Dollar Limits on Benefits, Restrictions on Rescissions, and Patient Protections
[5] Coverage for Preventative Services
[6] Internal Claims and Appeals and External Review Processes (PHS Act Section 2719)
[7] Health Insurance Coverage of College and University Students
[8] Final Regulations on PPACAs Summary of Benefits and Coverage
[9] DOL FAQs on Summary of Benefits and Coverage
[10] DOL Rules on PPACAs Medical Loss Ratio Provision
[11] DOL Responds to Questions on PPACA
[12] Agencies Issue New Guidance on Mental Health Parity Requirements
[13] DOL Proposes New Enforcement Procedures and Reporting Requirements for MEWAs
§ 20.06 Changes to Tax-Favored Arrangements Under PPACA
[1] Generally
[2] Changes to Definitions of “Medical Expenses“ for FSAs and HRAs for 2011
[3] Changes to Definition of “Qualified Medical Expenses“ for HSAs and Archer MSAs for 2011
[4] Use of Health FSA and HRA Debit Cards for Over-the-Counter Drug Expenses
[5] Transition Rule for Cafeteria Plan Amendments
[6] Revenue Ruling 2003-102 Obsolete
[7] Health Insurance Coverage of College and University Students
§ 20.07 Shared Responsibility for Employers Regarding Health Coverage
[1] Potential Definitions of Employer, Employee, and Hours of Service
[2] Calculating an Employees Hours of Service
[3] Method for Determining Whether an Employer Is an Applicable Large Employer for a Calendar Year
§ 20.08 Patient Protection and Affordable Care Act in the Courts
[1] Generally
[2] Court Cases Considering the PPACA
[3] Practicality of the PPACA Assuming Severability
[4] Supreme Court Accepts Appeal
[5] Supreme Court Hears Oral Arguments

Table of Abbreviations
Index