UBP blog

01/13/2010

Recent anti-discrimination laws make rules on wellness program questionnaires a lot tougher

A new year is under way and companies everywhere are getting started with their 2010 resolutions. Given the rising health care costs that have plagued us all lately, it’s no surprise that improving employee wellness is a popular one.

Many employers are beginning to incorporate wellness programs and initiatives into their overall group health plan design. When implementing a wellness program, health risk assessments (HRAs) are a great tool employers can use to track employee progress and generate plan effectiveness metrics.

However, for employers that use HRAs in wellness programs, there are quite a few Federal rules to follow. Recent Federal laws such as the Americans with Disabilities Act Amendment (ADAA) and Genetic Information Nondiscrimination Act (GINA) have only made the rules tougher.

The new, tougher anti-discrimination rules as they stand:

ADA (and ADAA amendment):

Health risk assessments included in a group health plan’s wellness program (even if they are HIPAA compliant) still run the risk of being non-compliant with the ADA.

As amended by the ADAA, the ADA prohibits employers from requiring employees to undergo medical examinations or inquiries unless they are made on a post-job offer basis and they’re either job-related or designed to meet a specific business need. Also, medical examinations and questionnaires that are voluntary and part of a worksite wellness program do not violate the ADA.

So, essentially, if employees can opt-in to or opt-out of taking your wellness program’s HRA and their incentive/penalty does not violate HIPAA (i.e. the value of the incentive or penalty cannot exceed 20% of the cost of an employee’s coverage on the group health plan), then your group should be fine with ADA compliance.

GINA:

Effective the first of the plan year following December 7, 2009, employers must comply with the Genetic Information Nondiscrimination Act (GINA). But, how does GINA affect wellness program HRAs?

The GINA Act’s interim final rule prohibits (in most cases) the use of an HRA in conjunction with a wellness program if “genetic information” (i.e. result’s of an employee’s genetic tests or information on family medical history) is collected for “underwriting purposes”.

In the context of GINA, collecting information for “underwriting purposes” does not just mean you’re collecting it for the purpose of setting rates, the definition is very broad.  The Act’s “underwriting” exclusion restricts employers from collecting, requesting and requiring genetic information in connection with an incentive (i.e. premium discount or rebate, reduction in co-pays or deductibles). So, if you have an incentive-based wellness program, it’s better to be safe than sorry and leave genetic information out of your questionnaires.

What employers need to do:

To avoid costly excise taxes and civil penalties, employers that have or are considering incentive based HRAs for HIPAA-compliant wellness programs should consider the following:

  1. Partner up with your legal counsel and perform an objective review of your current wellness program. From this review you should determine whether or not your plan complies with GINA and ADA as amended. Also, if your plan’s not compliant, know what steps you’ll need to take to bring it into compliance.
  2. Keep the lines of communication open with your legal counsel on new developments related to HRAs in incentive-based wellness programs.
  3. Involve your service providers in developing HRAs, employee communication and wellness plan features that will comply with GINA and the ADA.
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01/11/2010

Starting January 1, there’s a new penalty for failing to report payments to Medicare beneficiaries

Starting January 1, 2010, any Responsible Reporting Entity (RRE) that fails to comply with a new requirement for reporting Medicare payments to Medicare-eligible individuals for resolution of medical expense claims could face a steep penalty–$1,000 per-day the expenses go unreported.

Background on Medicare and reporting requirements:

As many of us know, Medicare is a government-funded health insurance program for individuals ages 65 and up but is not intended to be their primary health insurance (i.e. Medicare should be a “secondary payer”).  In December of 2007, then President Bush signed into law the “Medicare, Medicaid and SCHIP Extension Act of 2007” (MMSEA) to determine when Medicare beneficiaries had received reimbursements for medical expenses which Medicare could recoup.

The act requires an RRE to register with the Centers for Medicare and Medicaid Services (CMS) Coordination of Benefits Contractor (COBC) and electronically file the following information on third-party claims involving payments to Medicare-eligible claimants:

  • Identifying information about the individual (i.e. Social Security Number)
  • The amount paid to the individual to resolve all or part of the claim

The RRE’s payment is called the Total Payment Obligation to Claimant (TPOC).

Why employers need to know about this:

On or after January 1, any employer that is self-insured for all or part of any claim for medical expenses becomes an RRE and is subject to the new reporting requirements. This includes personal injury claims and can include claims for discrimination or harassment.

Employers, if the above applies to you and you employ any Medicare-eligible individuals, take the following 4 steps to help you ensure your compliance and avoid costly fines.

  1. Consult with your insurance carriers and attorneys that handle your insured liability claims. The purpose of this is to make sure everything is in place for you to report all necessary information for TPOC claims made on or after 1/1/2010.
  2. Examine your claims history to see if any demands could be made against your company for personal injury. If there have been, you should register with COBC and begin the process of filing claims information. If there have not been any such claims, you should still keep a watchful eye out for any that come in the future.
  3. If there are any claims pending against you for which you may be required to make a payment, you’ll need to determine whether or not the individual making the claim is a Medicare beneficiary.
  4. Whenever you make a payment to a Medicare-eligible individual settling a claim for personal injury or medical expenses, you’ll need to report all necessary information to COBC promptly.

01/07/2010

Identity theft in the workplace is more common than you think

And it can come from many different people, from a dishonest co-worker, to a temp working in HR, even a visitor to your office building.  If you’re not careful, any of these people can have access to your personal information—and who knows what they’ll do if they get their hands on it.

To keep sensitive information from falling into the wrong hands, here are 3 steps employers and employees both should take:

  1. Keep your personal property in a safe place: Don’t leave your personal belongings such as purses, wallets and laptops unattended. Either have them on your person at all times or keep them in a locked place to which  only you have the key. Also, make sure all documents you have containing personal  information are either on an encrypted computer or stored in a locked file cabinet. When you’re away from your desk, make sure you never leave one of these files open on your computer or one of these cabinet drawers open.
  2. Always assume your work computer is being monitored:  That’s because many employers will routinely scan the content of employees’ email and monitor their Internet use. Because of this, employees should never use their work computers to access password-protected personal accounts, do online banking, send non work-related emails containing personal information or store documents with personally identifying information.
  3. Maintain strict information security policies at your workplace: Among many other things, employers should restrict access of employee personnel data to authorized individuals only and make sure all files containing personal information are stored on encrypted computers, locked file cabinets or secure offsite facilities.

They should also educate employees on all information security measures they’re taking, train employees on their data security responsibilities and require them (as part of their jobs) to obey the data security policy.

12/30/2009

The top 4 policies employers should update for the New Year

Nearly all of us like to kick of the new year with a resolution; get in shape, eat healthier, break a bad habit, manage your money better, the list goes on. The new year gives us all a clean slate and our resolutions motivate us to start the year off right.

For HR professionals, one of the many ways to start the year off right is to make sure all policies in your employee handbooks are up-to-date and compliant with the latest regulations. This will help you strengthen your case in the event that an employee (or former employee) sues you for any type of bias.

When updating your handbook for the new year, employers and HR professionals should look at the following 4 policies first:

  1. FMLA: The U.S. Department of Labor (DOL) has revised FMLA Regulations several times this past year and requires employers to provide employees a notice of their updated FMLA rights in their handbook (or a handout for new hires). If employers fail to do this and an employee files an FMLA suit, failure to notify is the first area lawyers will attack.
  2. Genetic Discrimination: The Genetic Information Nondiscrimination Act (GINA) went into effect late this year prohibiting employers from using genetic information in any employment-related decisions.  This means that employers will need to update their handbooks so that genetic information is listed as one of the “protected traits” with EEO status.
  3. Privacy and electronic devices: Many employees may have privacy expectations in their use of company computers. However, courts generally rule that employers can monitor computer and electronic device usage—since these devices are, in fact, company property. Employers may also limit or prohibit certain activities such as sending inappropriate emails or accessing “adult” materials.  The handbook is often a very effective way for employers to notify employees of their monitoring practices and prohibited activities.
  4. Social networking: New media such as Facebook, Twitter and blogs have become a part of so many of our lives –both personal and professional. Social networking websites are a great way for companies to get their names out there and solidify their brands in the minds of consumers. However, if any employee makes disparaging remarks about his or her employer on Facebook or blogs about trade secrets, new media can become your company’s worst nightmare.

To combat this, many employers have put social media policies in place. If you have one of these policies, the time is now to make sure it’s in your handbook and up to date.

12/28/2009

IRS dollar limits for 2010, what changes and what remains the same

The new year is fast approaching and it will bring on many new changes for employers and employees both. However, the following are two things you can count on to stay the same.

  1. Maximum contribution levels for 401(k) and other defined contribution plans: Due to the falling cost-of-living index, maximum retirement plan contribution rates will be the same in 2010 as they were in 2009. This means that plan participants will be able to contribute up to $16,500 to the plans in 2010. Also, the dollar limitation for catch-up contributions to an employer defined contribution plan for individuals ages 50 and older will stay the same at $5,500. 
  2. Annual dollar limits to employer-provided transportation plans: As was the case in 2010, the IRS has set $120 per-month as the maximum value of excludable benefits under a qualified commuter benefits plan and $230 as the monthly limit for qualified parking benefits.

These two mentioned above, and virtually all of the IRS’ other annually indexed limits, will remain unchanged for 2010 with a few exceptions.

  • The 2010 out-of-pocket maximum limit for HSA (Heath Savings Account) qualifying high deductible health plans will be $5,950 for individuals (up $150 from 2009 limits) and $11,900 for families (up $300 from 2009 limits)
  • The 2010 maximum excludable amount on an employer-provided adoption assistance program will go up slightly as well to $12,170 (up $20 from last year).

We all know that as employers, you have a lot of minimums, maximums and rules to keep track of to make sure all the benefits you offer comply with all state and Federal regulations. You can count on us to keep you posted if anything changes for the upcoming year.

Share this with your employees:

Employers, feel free to copy and customize this blog for distribution to your employees. You may want to add additional financial information that’s specific to your company, such as the amount or timing of your retirement plan contributions.

Employees will find this useful at the beginning of the year as they review their past finances for tax purposes, plan for the upcoming year and set New Year’s resolutions about money.

12/22/2009

New defense bill extends COBRA subsidy and subsidy eligibility

Inside the new $626 billion dollar defense bill that Congress just passed (and the President is expected to sign) is a provision extending the American Recovery and Reinvestment Act (ARRA) COBRA subsidy.

For assistance eligible individuals (AEIs), the new legislation will:

  • Extend the eligibility for the 65% COBRA subsidy from December 31, 2009 to February 28, 2010 (making workers whose COBRA eligibility begins on or before 2/28/2010 now eligible for the subsidy)
  • Adds 6 months to the 9 month period during which the federal government would pay the 65% subsidy to Assistance Eligible Individuals’ COBRA premiums

Also, the legislation will give beneficiaries whose subsidy ran out and who did not pay the full COBRA premium, a second chance to opt for coverage. For example, if an AEI’s subsidy eligibility ran out on November 30, 2009 and they did not pay the regular, unsubsidized COBRA premium for December, they could opt to pay their 35% share of the premium in January and get coverage for December.

What employers need to do:

Provided that President Obama signs this bill into law, employers will need to do the following:

  • Notify current and future COBRA beneficiaries of the new 15 month subsidy
  • Notify current and future COBRA beneficiaries of the subsidy’s new deadline of February 28, 2010

 The ARRA Act COBRA subsidy has greatly increased the number of terminated employees who take COBRA.

As employers, you should expect a high percentage of those who elected COBRA under the subsidy plan and have not found employment yet to continue COBRA under this extension. So don’t be guilty of failure to notify them about this benefit.

12/18/2009

6 Need-to-know Items for Preventing Holiday Shopping ID Theft

Filed under: Uncategorized — ubpblogger @ 9:30 am
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Take our recession economy, combine it with our population becoming more and more tech-savvy by the day add yet another holiday shopping season and what do you get? You guessed it, a perfect storm for identity theft.

Identity theft costs businesses over $221 billion a year and claimed nearly 10 million victims in 2008. On top of this, when an individual becomes a victim of identity theft they’re not the only affected by the damages—their employer is too.

Employers whose workers become victims of identity theft are vulnerable to huge productivity losses.

Studies show it takes 330 hours on average to clear up all the damages after an identity is stolen—a figure that’s very hard to stomach in this day and age where we’re all doing more with less.

For employers, preventing employee identity theft starts with awareness:

That’s because 80 percent of identity theft is not related to breaches within credit card and/or bank accounts, but improper use of personal information.

To make sure your employees keep their personal data safe and secure, especially throughout the holiday shopping season, share with them the following tips:

When shopping online:

  1. Only use a secure website (you’ll know if the web address says “https” and not “http”).
  2. Use a credit card, not a debit card. Debit cards don’t have the same protections as credit cards and can be used immediately by a their to take funds from accounts.
  3. Research the web site and read all fine print before making an order. A legitimate company should have at least one phone number and physical business address posted on their website.

When shopping in physical stores:

  1. Leave your social security cards at home
  2. Keep an eye on your credit card at all times—Don’t walk away from the cashier holding your card to grab one last item. Also, don’t let the store clerk or another accomplice distract you from your transaction. In the time it takes you to look away and focus on something else, they could swipe your card through a second terminal and use the information for counterfeit purposes.
  3. Take the time to “shoulder-surf”—Take a few extra moments to protect your driver’s licenses and information on checks from wandering eyes. You never really know who’s standing behind you in line.

12/15/2009

H1N1 and FLSA, are your sick leave policies compliant?

Filed under: HR compliance,sick leave policy — ubpblogger @ 12:50 pm
Tags: , ,

When struck with a pandemic flu outbreak, many companies will do one of the following:

  • Continue working short staffed while employees are out with the flu
  • Close their businesses for a day, or two, or several
  • Send everyone home to “telework” in an effort to stop the flu from spreading

For employers, getting hit with a pandemic flu is one thing but getting slapped with a labor law violation on top of it for noncompliant sick leave policies can make things go from bad to worse.

To ensure that your company stays compliant with the Fair Labor Standards Act while still doing as much as you can to maintain “business as usual” during a flu pandemic, employers should consider the following:

  1. Employees can do work outside of their job descriptions: When employees are out sick, employers may require healthy employees who are at work to pick up some of their ill colleagues responsibilities (even if they fall outside of the employees’ job descriptions). Just as long as the employees in question are 18 years of age or older, the FLSA places no limitations on the type of work they may be required to perform.
  2. Employees must be paid the same hourly rate, regardless of whether they work on site or from home: To control the spread of a pandemic infection, employers may require employees to work from home. If your company decides to make these requirements, you, the employer must pay all hourly workers the same rate for all hours they worked from home as you would if they had worked these hours on-site.  Also, all salaried employees must be paid their full salary for any week in which they performed any work (subject to certain exceptions).
  3. Employees who are required to work from home but cannot do not need to be paid: In the event that you shut down your workplace, thus requiring all employees to telecommute, you are only required to pay employees who are able to perform their job duties from home. The FLSA only requires employers to pay employees for hours they actually worked (whether at home or on site). That said, you should ask yourself if this will have an adverse impact on certain groups of employees. For example, if working at home requires a computer and internet access, is one group of employees much more likely to have these and thus be able to work at home? What can you as the employer do to help give equal access to the opportunity to work at home?
  4. Letting employees “volunteer” during a personnel shortage can cause you a lot of trouble: This is because the FLSA has very strict requirements governing when you can and cannot allow nonexempt employees to volunteer time. Generally, all nonexempt hourly employees working for private sector, for profit companies, must be paid at least a minimum wage for all hours they work.

12/10/2009

DOL ‘s new COBRA subsidy guidelines and what they mean for workers laid-off in December 2009

The American Recovery and Reinvestment Act (ARRA) COBRA subsidy President Obama signed back in February will soon come to an end for those who aren’t already qualified.  To clear up any confusion that may arise from this, the Department of Labor (DOL) released two FAQs  to guide employers on determining eligibility.  

The first FAQ states that in order for employees to be eligible for the 65% COBRA subsidy, they must satisfy two conditions:

  1. They must have been involuntarily terminated between September 1, 2008 and December 31, 2009
  2. They must have been eligible to receive COBRA during that period

The second condition is where the confusion lies.

Many employers allow laid-off employees to remain on the company’s health insurance up until the end of the month in which they were terminated. As a result, they don’t become eligible for COBRA coverage until the first day of the month after their termination. 

So, an otherwise Assistance Eligible Individual (AEI) who is laid-off on any day in December 2009 would not be eligible for the 65% COBRA subsidy—that is, if his or her company allows employees to stay on their health plan through the 31st.

The second FAQ states that AEI’s whose COBRA eligibility begins in December 2009 or earlier are eligible to receive the subsidy for up to nine months as long as they remain qualified. So, an employee who’s laid-off in November may be eligible to receive the COBRA subsidy all the way up through August 2010 as long as they’re qualified.

Although bills have been proposed in Congress to lengthen the COBRA subsidy for AEIs, lengthen the time period for COBRA eligibility, and up the amount of the subsidy from 65 to 75 percent; no changes to the COBRA law have been made to date. However, as soon as any new laws are passed, you can count on us to keep you posted.

12/08/2009

New genetic non-discrimination law GINA took effect December 7, 2009

Title II, the employment-related provision of the Genetic Information Non-Discrimination Act of 2008 (GINA) took effect yesterday, December 7, 2009.

This provision prohibits employers from:

  • Using genetic information to make decisions in “hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment” for all employees and/or job applicants
  • Requesting or requiring employees and/or job applicants to undergo genetic testing

 According to the EEOC, genetic information includes the following:

  • Information about an individual’s genetic tests
  • Genetic tests of an individual’s family member
  • Family medical history (Do any of your insurers ask if you are aware of employees whose family history includes certain diseases?)

Genetic information does not include:

  • Information about the age and gender of an individual and his or her family members
  • Information that an individual currently has a disease or disorder
  • Tests for alcohol or drug use

In addition to prohibiting genetic testing requirements, GINA also comes with confidentiality requirements for any genetic information that an employer possesses.

To comply with GINA, employers must do the following two things:

  1. Post a notice with GINA information: The EEOC has released a poster to help employers comply with the new GINA requirements.
  2. Update their nondiscrimination policies to include GINA’s employer provisions.

 

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