Amid the shifting regulatory and compliance landscape, our health and welfare team works with employers of all sizes and across industries to design, implement, and maintain health and welfare plans. Our clients range from small, middle-market, Fortune 500, and multinational companies to financial institutions, start-ups, tax-exempt organizations, educational institutions, insurers, third-party administrators, and state and local governments. We help clients navigate the myriad regulations and changing environment, and we assist them with managing and operating their health and welfare plans on a day-to-day basis.
Our team is well versed in the laws and regulations that govern health and welfare plans. We consult with our clients to design and implement plans that reflect their businesses’ and employees’ needs, including innovative, cost-saving plan designs. We assist with the daily operations and administration of our clients’ plans, including maintaining plan documents, consulting on operational issues, and assisting with claims and appeals. We represent health and welfare plan clients facing federal agency audits and lawsuits, and help them to limit their liability through comprehensive legal reviews.
We guide clients through compliance with the Employee Retirement Income Security Act (ERISA); the Affordable Care Act (ACA); Internal Revenue Code (IRC) Sections 79, 105, 125, 129, and 223; the Consolidated Omnibus Budget Reconciliation Act (COBRA); the Health Insurance Portability and Accountability Act (HIPAA), regarding nondiscrimination and portability; HIPAA and the Health Information Technology for Economic and Clinical Health (HITECH) Act, regarding privacy and security; the Mental Health Parity and Addiction Equity Act (MHPAEA), regarding mental health parity; the Genetic Information Nondiscrimination Act (GINA); the Americans with Disabilities Act (ADA); and other applicable laws.
We regularly consult with our clients to design and establish consumer-driven plans, cost-saving plan designs, and wellness programs. These plans include high-deductible health plan/health savings account (HDHP/HSA) combinations, health reimbursement arrangements (HRAs), and health flexible spending accounts (FSAs). We help our clients understand and apply the ACA provisions that impact those plan designs. We counsel clients and third-party administrators regarding private exchanges that have become more relevant since the passage of the ACA.
In March 2010, the ACA dramatically changed the healthcare coverage universe, requiring employers and group health plans to learn and understand a series of new requirements, terms of art, and coverage schemes. The ACA also introduced practically the first mandate in the area of employee benefits and, at the least, represents the single biggest development in the area since ERISA. We’ve supported our clients every step of the way in this new landscape—even before the ACA was signed into law. In recent years, we have partnered with our clients on myriad ACA compliance projects, such as determining grandfathered status; implementing mandated benefits changes (such as restrictions and prohibitions on annual and lifetime dollar limits, dependent coverage to age 26, no-cost preventive care, revised claims and appeals procedures including external review, etc.); and addressing compliance with the prohibition on waiting periods of more than 90 days. We also help ensure that our clients comply with IRS reporting requirements (Form W-2, IRC Sections 6055 and 6056, etc.), participant notices (summaries of benefits and coverage (SBCs), Exchange Notices, etc.), and applicable taxes and fees (Patient-Centered Outcome Research Institute (PCORI) fees, temporary reinsurance fees, and the “Cadillac tax”).
We help our employer clients manage their health plan structure and eligibility requirements to limit their potential liability under the employer shared responsibility rules and related penalties. Collaboratively, we work to identify and count a company’s ACA full-time employees, establish measurement and stability periods systems when appropriate to track full-time employees, and determine whether the health plans are offering minimum essential coverage that is affordable and of minimum value. We counsel employers and the plans they sponsor on meeting their reporting obligations under IRC Sections 6055 and 6056.
We help our third-party administrator clients to understand the legal changes under the ACA and how the new requirements impact their administrative systems. For example, we have worked with a third-party administrator client to build an hours-counting and ACA full-time employee determination tool.As ACA compliance and implementation evolve, we closely watch and digest the regulations and guidance frequently issued by the US Department of the Treasury, the US Department of Health and Human Services (HHS), and the US Department of Labor (DOL).
To assist with day-to-day health plan administration, we consult on the design and implementation of funding arrangements (including retiree medical benefits and voluntary employee beneficiary associations (VEBAs)); review and negotiate administrative services agreements with third-party service providers (including third-party administrators, insurers, and prescription benefit managers); and support our clients through the ERISA claims and appeals process.
Updated and accurate plan documentation is a critical element of compliant health and welfare plans. We assist with establishing and maintaining Section 125 cafeteria plans. We draft, review, and revise welfare plan documents, summary plan descriptions (SPDs), summaries of material modifications (SMMs), summaries of benefits and coverage (SBCs), open enrollment materials, website content, and other participant communications.
Beyond employer and plan clients, we help third-party administrator clients with their employee benefits administration. We work with these clients to understand legal changes and requirements, and the practical impact of those elements on their administrative and operational systems.
In addition to health plans, our clients also look to us to help maintain and consult on the administration of their short-term and long-term disability plans, accidental death and dismemberment (AD&D) plans, life insurance plans, and other types of welfare arrangements.
Through our representation of a broad range of health and welfare clients, including employers and welfare plans of all types, third-party administrators, and insurers, our comprehensive knowledge of the marketplace and practical challenges facing our various clients is ever evolving. Armed with this experience and insight, we bring well-rounded, deeply knowledgeable, and practical counsel to all of our health and welfare clients.
For more than a decade, clients (employers, health plans, and third-party administrators) have relied on our assistance with HIPAA privacy and security compliance. Through our HIPAA Privacy Compliance Initiative, we arm our clients with tools to navigate HIPAA compliance. In the new era of increased enforcement activity and heightened civil and criminal penalties ushered in by the HITECH Act, we continually revise and update this initiative.
Our fixed-fee HIPAA Privacy Compliance Initiative services include:
Along with our fixed-fee services, we consult with our clients’ privacy officers and other employees when unanticipated HIPAA incidents occur or questions arise. We advise privacy officers and others on responding to requests to invoke individual rights, investigating and responding to individuals’ complaints, investigating and analyzing suspected breaches or violations, and notifying individuals, HHS, and the media of breaches when appropriate. We counsel clients who must respond to HHS inquiries, investigations, or audits. We consult with employers and third-party administrators about what qualifies as PHI covered by HIPAA, and which departments, employees, or vendors are permitted to access and use PHI. When faced with claims or litigation, we advise clients on how and when PHI may be disclosed.
Our team can assist with HIPAA security compliance, including working with information technology (IT) departments and consultants to develop security policies and procedures. We have experience investigating and analyzing suspected breaches that occur within systems.
Clients regularly turn to us to consult on the design and operation of wellness programs that comply with regulations issued by the US Department of the Treasury, HHS, the DOL under the HIPAA nondiscrimination rules and the ACA, and the US Equal Employment Opportunity Commission (EEOC) under the ADA and GINA. We work with clients to implement wellness programs and onsite clinics as well as review and negotiate administrative services agreements necessary to implement those programs. We help to identify the best wellness program structure to maximize employee utilization of those programs. Our clients look to us for help managing their wellness incentives in a manner that complies with the HIPAA nondiscrimination rules and the EEOC guidance, and limits their potential liability against any action taken by the EEOC.
Our team has: