OSHA Proposes Change to Electronic Record-Keeping Rule
On July 30, OSHA submitted a Notice of Proposed Rulemaking that would eliminate the requirement for worksites with 250 or more employees to electronically submit certain data. Continue reading to learn more.
Worksites with 250 or more employees would not be required to electronically submit certain data to the Occupational Safety and Health Administration (OSHA) under a proposal to roll back an Obama-era rule.
The Improve Tracking of Workplace Injuries and Illnesses rule requires employers that are covered by OSHA's record-keeping regulations to electronically submit certain reports to the federal government. Certain establishments with 20-249 employees are required to submit only OSHA Form 300A each year—300A is a summary of workplace injuries and illnesses that many employers are required to post in the workplace from Feb. 1 until April 30 of each year.
In addition to Form 300A, larger establishments (those with 250 or more employees) were supposed to begin submitting data from Form 300 (the injury and illness log) and Form 301 (incident reports for each injury or illness) in July. However, in May, OSHA announced that it would not be accepting that information in light of anticipated changes to the rule.
As expected, on July 30, OSHA issued a Notice of Proposed Rulemaking (NPRM) to eliminate the requirement for large establishments to electronically submit information from Forms 300 and 301.
"OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable" under the Freedom of Information Act, the agency said.
The electronic record-keeping rule has faced considerable opposition from the business community, in part because some of the data submitted will be made available to the public.
The proposed rule would also require employers to submit their employer identification numbers (EINs) when e-filing Form 300A. "Collecting EINs would increase the likelihood that the Bureau of Labor Statistics would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness," the agency said.
Anti-Retaliation Rules Remain
OSHA's electronic record-keeping rule also contains controversial anti-retaliation provisions. These provisions, which went into effect in December 2016, give OSHA broad discretion to cite employers for having policies or practices that could discourage employees from reporting workplace injuries and illnesses. For example, the provisions place limitations on safety incentive programs and drug-testing policies. OSHA has said that employers should limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use.
Prior to the new rules, many employers administered post-accident drug tests to all workers who were involved in an incident. The anti-retaliation provisions create another layer of ambiguity for employers, because they have to justify why they tested one person and not another, which may lead to race, gender and other discrimination claims, said Mark Kittaka, an attorney with Barnes & Thornburg in Fort Wayne, Ind., and Columbus, Ohio.
OSHA has not announced any plans to revise the electronic record-keeping rule any further. Many employer-side stakeholders were disappointed that OSHA made no effort to revise the anti-retaliation provisions, said John Martin, an attorney with Ogletree Deakins in Washington, D.C.
There are still undecided lawsuits in federal courts that challenged these provisions back when they were first issued but have been put on hold while revisions were pending, Martin noted. OSHA's proposed revision clearly did not resolve all of the challengers' concerns, so they are now deciding whether to ask the courts to resume litigation, he said.
What Now?
Employers should keep in mind that OSHA's electronic record-keeping rule refers to "establishment" size, not overall employer size, Kittaka said. An establishment is a single physical location where business is conducted or where services or industrial operations are performed, according to OSHA.
Large employers still need to electronically submit 300A summaries for each work establishment—office, plant, facility, yard, etc.—with 250 or more employees, Martin said. If they have work establishments with 20-249 employees and they are covered by OSHA's high-hazard establishment list, then they must also submit 300A summaries for those smaller establishments.
The proposed rule is open for public comment until Sept. 28. "OSHA made clear in the proposed rule that the agency was only seeking comments on the electronic submission and EIN" proposals, said Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C.
SOURCE: Nagele-Piazza, L (14 August 2018) "OSHA Proposes Change to Electronic Record-Keeping Rule" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-proposes-change-to-electronic-record-keeping-rule.aspx/
Consequences and/or Remedies for Late or Missing Form 5500s
The Form 5500 deadline is approaching quickly. Below, Employee Benefits Corporation discusses the three different options employers have if they fail to file their Form 5500 or if they file late.
The Form 5500 is due on the last day following seven months after the end of the plan year. In order to be granted an extension, the employer would have to send the IRS a Form 5558 for each plan subject to Form 5500 obligations. The Form 5558 needs to be postmarked by the original due date or it will be rejected.
Failure to file or failure to file required Form 5500s on time can prove to be costly for an employer as daily penalties are assessed for late or missing filings.
What should an employer do if they find out they never filed a Form 5500 or they failed to file the Form 5500 by the deadline?
The employer should consider their risk tolerance, the number of plans they have not filed and the potential penalties to determine what the best course of action is for them.
They have three options:
- Do not file and hope that no one questions them if they are audited. There is a potential consequence of $300/day for each plan (per plan/ per plan year) that did not get filed or get filed on time. Penalties capped at $30,000 per year.
- File late and hope that no one notices. There is a potential consequence of $50/day for each plan (per plan/per plan year) that filed late or not on time. No cap on the penalty in this case.
- File late under the Delinquent Filers Voluntary Compliance Program (DFVCP). There is late fee of $10/day for each plan (per plan per plan year) that is filing late. Penalties capped at $2,000 per large plan/$750 per small plan if filing multiple plan years for a plan. Penalties for large plans that file more than 1 delinquent plan year per plan number filing at the same time, the maximum penalty is $4,000 per plan and $1,500 for small plans.
The Bottom Line:
Employee Benefits Corporation can assist employers with the preparation of their delinquent Form 5500s as part of our Compliance Services offerings. Employers will pay the DFVCP penalties directly to the DOL online as part of the process. We can help educate the employer on the risk factors associated with each approach and to assist, if contracted to do so, in the preparation of the Form 5500s.
SOURCE:
Employee Benefits Corporation (29 June 2018) "Consequences and/or Remedies for Late or Missing Form 5500s" [Web Blog Post]. Retrieved from https://www.ebcflex.com/Education/ComplianceBuzz/tabid/1140/ArticleID/613/Consequences-and-or-Remedies-for-Late-or-Missing-Form-5500s.aspx?utm_source=7.19.18+Need+to+Know+%7C+Missing+Form+5500s&utm_campaign=7-19-18_Need+to+Know+email-Form+5500+season&utm_medium=email
Change to 2018 HSA Family Contribution Limit
Yesterday, the IRS released a bulletin that includes a change impacting contributions to Health Savings Accounts (HSAs).
- The family maximum HSA contribution limit has decreased from $6,900 to$6,850.
- This change is effective January 1, 2018 and for the entire 2018 calendar year.
- The self-only maximum HSA contribution limit has not changed.
- This means that current 2018 HSA contribution limits are $3,450 (self-only) and $6,850 (family).
Why is the change happening so abruptly?
The IRS continues to make adjustments to accommodate the new tax law that passed at the end of 2017. Tax reform updates require the IRS to implement a modified method of calculating inflation-adjusted or cost-of-living-adjusted limits for 2018. The IRS is now using a different index (Chained Consumer Price Index for All Urban Consumers) to calculate benefit-related inflationary adjustments.
Typically, the IRS adjusts the HSA limits for inflation on an annual basis about six months before the start of the impacted year. For example, the IRS established the 2018 limits in May 2017. Today’s bulletin supersedes those limits.
Resource:
• IRS Bulletin IRB 2018-10, March 5, 2018
Critical compliance changes for next year: An open enrollment checklist
Keeping up-to-date with health care is one of our top priorities. From HR Morning, here is a comprehensive list of everything you need to know so far going into 2018.
As HR pros immerse themselves in negotiating plan changes for this year’s open enrollment, it’s critical to keep these new 2018 regulation changes front and center.
To help, here’s a checklist of changes you’ll need to be aware of when making plan-design moves:
1. Mental Health Parity reg changes enforced
Beginning January 1, 2018, plans that require “fail first” or “step therapy” could violate the Parity Act’s “non-quantitative treatment limitation” (NQTL) rules. Under the NQTL rules, plans can’t be more restrictive for mental health/substance abuse benefits than they are for medical/surgical ones.
Here’s an example of a fail-first strategy: Requiring mental health or addiction patients to try an intensive outpatient program before admission to an inpatient treatment if the same restriction doesn’t apply to medical/surgical benefits.
2. New Summary of Benefits and Coverage (SBC) template
Under the ACA, plans were required to start using the new SBC template on or after April 1, 2017.
For calendar year plans, that means this is the first enrollment with the new template, which includes new coverage examples and updates about cost-sharing. You can find more details on and instructions for the new form here: bit.ly/temp544
3. Women’s preventive care
The Women’s Preventive Services Guidelines were updated for 2018 calendar plans to include a number of items that must be covered without any cost-sharing. The list includes breast cancer screenings for average-risk women, screenings for cervical cancer, diabetes mellitus and more.
See the original article here.
Source:
Bilski J. (17 October 2017). "Critical compliance changes for next year: An open enrollment checklist" [Web blog post]. Retrieved from address https://www.hrmorning.com/critical-compliance-changes-for-next-year-an-open-enrollment-checklist/
Compliance Alert: New Affordable Care Act FAQs Released
Original post jdsupra.com
The U.S. Department of Labor, the Department of Health and Human Services, and the Department of the Treasury (collectively, the “Departments”) have jointly issued a new set of answers to frequently asked questions about the Affordable Care Act (the “ACA”). Below are some highlights from the FAQs.
Rescissions of Coverage
The FAQs provides some specific guidance regarding rescissions of coverage that is of interest for K-12 schools and higher education institutions. Under the ACA, a plan generally cannot retroactively cancel coverage (referred to as a “rescission” of coverage) unless the participant commits fraud or makes an intentional misrepresentation of material fact prohibited by the terms of the plan. The FAQs answer a very specific question about rescissions, which may have broader application. The question raised by the FAQs is whether a school can retroactively cancel coverage for a teacher who was employed on a 10-month contract from August 1 to May 31 and gave notice of resignation on July 31. The plan attempted to terminate coverage retroactively to May 31. According to the FAQs, such a rescission violates the ACA’s restrictions.
Preventive Care Mandate
Under the ACA, non-grandfathered group health plans must cover certain preventive services without imposing any cost-sharing requirements. In the new FAQs, the Departments issued the following guidance regarding preventive services:
- Any required preparation for a preventive screening colonoscopy is an integral part of the procedure and must be covered without cost-sharing.
- Plans and issuers that use reasonable medical management techniques for specific methods of contraception can develop a standard exception form and instructions for providers to use in prescribing a particular service or FDA-approved item based on medical necessity. The Medicare Part D Coverage Determination Request Form can be used as a model in developing a standard exception form.
Additionally, the FAQs clarify that if a non-grandfathered plan pays a fixed amount (a “reference price”) for a particular procedure, the plan must either (1) ensure that participants have adequate access to quality providers that accept the reference price as payment in full or (2) count an individual’s out-of-pocket expenses for providers who do not accept the reference price toward the individual’s maximum out-of-pocket limit.
Out-of-Network Emergency Services Coverage
The ACA also prohibitsnon-grandfathered group health plans from imposing cost-sharing on out-of-network emergency services in an amount that is greater than that imposed for in-network emergency services. The statute does not specify whether “balance billing” is included in the definition of cost-sharing. “Balance billing” is the practice of providers billing a patient for the difference between the provider’s billed charges and the amount collected from the plan plus the amount collected from the patient in the form of a copay or coinsurance. To avoid circumvention of the ACA requirements, the Departments previously issued regulations requiring a plan or issuer to pay a reasonable amount before the patient becomes responsible for balance billing. Under this regulation, the plan or issuer must provide benefits at least equal to the greatest of: (1) the median amount negotiated with in-network providers for the emergency service; (2) the amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services; or (3) the amount that would be paid under Medicare for the emergency service (collectively, the “Minimum Payment Standards”). The FAQs now make clear that plans that are subject to the Employee Retirement Income Security Act must disclose the documentation and data they use to calculate the Minimum Payment Standards (1) upon request by a participant (or authorized representative) or (2) if relevant to an appeal of an adverse benefit determination.
Mental Health Parity
Lastly, the Mental Health Parity and Addiction Equity Act (“MHPAEA”) and underlying regulations generally prohibit group health plans from imposing more restrictions on financial requirements and treatment limitations provided for mental health/substance abuse disorder services than the “predominant” financial requirements and treatment limitations that apply to “substantially all” medical/surgical services. “Substantially all” for this purpose is a requirement or limitations that apply to at least 2/3 of all medical/surgical benefits in a classification. If a limitation meets the substantially all requirement, then the “predominant” level that may apply to the mental health/substance abuse disorder benefits is the one that applies to more than half of the medical/surgical benefits within the classification. In the FAQs, the Departments clarify that when calculating the “substantially all” and “predominant” tests, a plan or issuer may not base its analysis on an issuer’s entire book of business for the year. Group health plan-specific data must be used where available. If not available, data from plans with similar structures and demographics can be used.
The FAQs also clarify that under MHPAEA, criteria for medical necessity determinations must be made available to any current or potential enrollee in a group health plan, not just active participants.
This is the 31st set of FAQs issued by the Departments on the ACA, which reflects the complexity of implementing the ACA’s many requirements.
CMS Issues 2017 Benefit and Payment Parameters Rule, Letter to Issuers and FAQ
Original post healthaffairs.org
On February 29, 2016, the Department of Health and Human Services released its final 2017 Benefit and Payment Parameters Rule (with fact sheet) and final 2017 Letter to Issuers in the Federally Facilitated Marketplaces (FFMs). It also released a bulletin on rate filings for individual and small group non-grandfathered plans during 2016, a frequently asked questions documenton the 2017 moratorium on the health insurance provider fee recently adopted by Congress, and a bulletin announcing that CMS intends to allow transitional (grandmothered) policies to continue (if states permit it) through December 31, 2017, rather than requiring them to terminate by October 1, 2017, as earlier announced.
The final payment rule and letter include most of the provisions proposed earlier, but differ in important respects.Here are a few headlines, focusing on issues of particular interest to health insurance consumers.
Standardized Plans
To begin, the final rule and letter adopt with a few changes proposals regarding standardized plans. Beginning in 2017, qualified health plan insurers would have the option of offering six standardized plans: a bronze, a gold, and a standard silver, as well as three silver plan options, at the 73 percent, 87 percent, and 94 percent actuarial-value levels, for individuals eligible for cost sharing reduction payments. The plans would have
- standard deductibles (ranging from $6,650 for the bronze plan to $3,500 for the standard silver to $250 for the 94 percent silver cost-sharing variation),
- four-tier drug formularies,
- only one in-network provider tier,
- deductible-free services (for the silver level plan including urgent care, primary care visits, specialist visits, and drugs),
- and a preference for copayments over coinsurance.
Insurers will not be required to offer standardized plans and could offer non-standardized plans (as long as they met meaningful difference standards), but standardized plans will be displayed in the marketplaces a manner that will make them easy for consumers to find.
Network Adequacy Requirements
The final rule and letter adopt some, but not all of the network adequacy requirements that were proposed, and delay some until 2018. The NPRM payment rule would have required states to adopt time and distance network adequacy standards for 2017 and imposed a federal default time and distance standard in states that failed to do so. The final rule backs off this requirement but provides that the FFM will itself generally apply quantitative time and distance standards in determining network adequacy for qualified health plans.
Provider Termination Notice
The final rule requires that health plans give patients 30 days notice when terminating a provider and continue to offer coverage for up to 90 days for a patient in active treatment by a provider who is terminated without cause. The insurer would only have to pay network rates to a provider for continuation coverage and the provider could balance bill. CMS is proceeding with its proposal to label health plans as to their relative network breadth on HealthCare.gov.
Out-Of-Network Bills At In-Network Facilities
CMS is not finalizing until 2018 a requirement the insurers apply to the in-network cost sharing limit the cost of services provided by out-of-network providers at an in-network facility; the agency is also weakening this already weak requirement. As finalized, the requirement only applies to ancillary providers, such as anesthesiologists or radiologists; can be avoided by giving notice (including form notice) 48 hours ahead of time or at the time of prior authorization that treatment might be received from out-of-network providers; and does not apply to balance bills as such where the provider bills for the difference between its charge and the network payment rate.
Open Enrollment Period And Procedures
Open enrollment for 2017 and 2018 will last from November 1 until January 31, as was true this year, but in future years, open enrollment will run from November 1 to December 15, to align enrollment with the calendar year. CMS is not finalizing until 2018 a proposal to allow applicants to remain on a web broker’s or insurer’s non-FFM website to complete a Marketplace applicant and enroll in coverage. Until then, web brokers and insurers will have to use the current direct enrollment process.
The rule changes the reenrollment hierarchy, requiring marketplaces to prioritize reenrollment in silver plans and allowing marketplaces to enroll consumers into plans offered by other insurers if their insurer does not have a plan available for reenrollment through the marketplace. Other proposals to change the reenrollment process were not adopted.
FFM User Fees In State Marketplaces
The final rule and letter finalize the status of state-based marketplaces using the federal enrollment platform, which this year included Hawaii, Oregon, Nevada, and New Mexico. In future years insurers in these states will pay a FFM user fee of 3 percent, but for 2017 the user fee will be 1.5 percent. The standard user fee for other FFM states will be 3.5 percent again for 2017.
Navigators In The FFMs
The final rule requires navigators in FFMs as of 2018 to provide consumers with post-enrollment assistance, including assistance with filing eligibility appeals (though not representing the consumer in the appeal), filing for shared responsibility exemptions, providing basic information regarding the reconciliation of premium tax credits, and understanding basic concepts related to using health coverage. Navigators will also be required to provide targeted assistance to vulnerable or underserved populations.
“Vertical Choice” In The FF-SHOPs
The final rule allows FF-SHOPs to offer a “vertical choice” option, under which employers could allow their employees to choose any plan at any actuarial level offered by a single carrier. This is in addition to the options currently available where employers can offer a single plan or any plans offered by an insurer at a single level. States could recommend against the FF-SHOP offering vertical choice in their states and states with state-based marketplaces using the FFM could opt out of making vertical choice available.
Fraud Prevention In The Medical Loss Ratio Calculation
CMS decided not to allow insurers to count fraud prevention expenses in the numerator in calculating their medical loss ratios, as it had suggested it might in the NPRM.
Other Topics
The insurer fee FAQ clarifies that insurers will not be charged the insurer fee for the 2017 fee year (which would have based the fee on 2016 data). Insurers are expected to adjust their premiums downward to account for the fact that they will not owe the fee.
CMS is allowing states to extend transitional plans, which antedate 2014 and do not have to comply with the 2014 ACA insurance reforms through the end of 2017. Earlier guidance had allowed insurers to renew transitional plans ending before October 1, 2017. CMS concluded that it would be better to allow people in transitional plans to transition into ACA compliant plans during the 2018 open enrollment period rather than having them start a new ACA compliant plan in October 2017 that would only last for three months, and then have to restart a new deductible on January 1, 2018.
There is much more in the rule and letter. The rule is well over 500 pages long, the letter almost 100. Watch for further installments over the next couple of days.
Agencies Propose Revised SBC Template and Uniform Glossary
Original post shrm.org
The federal agencies overseeing the Affordable Care Act announced a 30-day comment period ending on March 28, 2016, regarding proposed revisions to the Summary of Benefits and Coverage (SBC) and related documents that employers must provide to eligible employees for each of their health plans, following the Feb. 26 publication of an official notice in the Federal Register.
The revisions could be effective for employer-provided plan years beginning with the second quarter of 2017.
On Feb. 25, the Departments of Labor (DOL), Treasury, and Health and Human Services (HHS) released the proposed revised SBC template and revised uniform glossary, along with revised instructions for group plans. Under the Affordable Care Act, SBCs and the uniform glossary must be given to new hires and to employees during open enrollment.
The agencies had issued a final rule regarding SBCs and related documents in June 2015. However, revisions to the SBC template and the uniform glossary were delayed to allow the agencies to complete consumer testing and receive additional input from the public and stakeholders.
Providing Plan Details
In an analysis posted at the Health Affairs Blog, Timothy Jost, a professor at the Washington and Lee University School of Law in Lexington, VA., noted that among the proposed changes the revised documents would:
• Better identify services covered before the deductible applies.
• Disclose whether the plan has “embedded” deductibles and out-of-pocket limits (under which enrollees in family coverage can meet individual deductibles or out-of-pocket limits before the family limits are met).
• Disclose more information on tiered networks in relation to coverage of common medical events.
Though it may not provide the clarity employers and employees are looking for, "on the whole, the proposed revised SBC is a distinct improvement over the current SBC,” commented Jost.
Compliance Alert- Self-Funded Health Plans Must Obtain a Health Plan Identifier Number
Beginning November 5, 2014, employers with large self-funded health plans are required by federal government to obtain a national health plan identifier number (HPID). All health plans with more than $5 million in annual receipts must require an HPID, but since health plans don’t have receipts, the Department of Health and Human Services says insured plans should use the premiums from the prior plan year, and self-funded plans should look at claims paid for the prior plan year. Small health plans have an extra year to obtain an HPID with a deadline set for November 5, 2015.
The federal government requires this from all health plans, however, for practical purposes; the insurer will obtain the HPID for those plans that are fully insured. On the other hand, all self-funded plans must obtain an HPID, even if a third party administrator is involved to handle claims.
What exactly, is an HPID?
A health plan identifier number is 10 digits long and consists of only numbers and is used as an identifier for transactions covered by HIPAA.
Why are health plans required to have an HPID?
In an effort to make the claim processing more efficient, the HPID will help with electronic processing and faster automation. HPID’s will be required to be used in HIPPA transactions by November 7, 2016.
How do I know if my health plan is required to have an HPID?
First you must determine which health plan you have. There are two categories of health plans – a Controlling Health Plan (CHP) and a Subhealth Plan (SHP). A Controlling Health Plan is required to obtain an HPID, while a Subhealth Plan is eligible, but not required to get an HPID. To determine whether a Subhealth Plan should get an HPID, the CHP and/or the SHP should consider whether the SHP needs to be identified in the standard transactions. A CHP may get an HPID for its SHP or may direct a SHP to get an HPID. These categories can be confusing, and are intended for insurance companies to determine. If you need help determining which health plan you have, please contact us and we will be happy to help.
If you have a self-funded plan, how does one obtain an HPID?
Employers can apply at the Centers for Medicare and Medicaid Services (CMS) website. It is likely that most employers will be required to register and set up a health insurance oversight system (HIOS) account at https://portal.cms.gov/wps/portal/unauthportal/home/ .
After an account has been established, the employer can register for an HPID. More information on applying can be found here: https://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/Affordable-Care-Act/Downloads/HPOESTrainingSlidesMarchSlideDeck.pdf
We are always happy to help, so please contact us if you have any questions or need help obtaining an HPID.