As an ongoing service to you during the health care reform debate in Washington, I wanted to pass along some of the latest developments that may be of interest to you.

Senate Health Care Debate

This week the U.S. Senate began its floor debate on H.R. 3590, the Patient Protection and Affordable Care Act of 2009, and consideration of the various proposed amendments to the legislation.  More than 50 amendments have been filed for floor consideration, with more being filed every day.  So far, the amendments under consideration have focused on preventive care issues, Medicare funding and unsuccessful attempts by the GOP to recommit the legislation back to the Senate Finance Committee.  It is expected that the Senate debate will continue daily, including weekends, as Senate Majority Leader Harry Reid (D-NV) attempts to get a bill passed by the entire Senate before Christmas.  It’s also entirely possible due to procedural challenges by the Republicans and the struggle to get 60 unified Democratic votes on a final bill that the debate in the Senate will extend well into 2010. 

One of the most controversial amendments being offered for consideration by Senator Ron Wyden (D-OR) is called the “Employee Free Choice” amendment.  This amendment would have a devastating impact on the employer-based system of providing health insurance coverage.  The amendment would require employers to give their lower-income employees who wouldn’t normally be eligible to purchase subsidized coverage through the exchange, a voucher to use in the individual market or exchange, instead of participating in the provided employer-plan and would be effective in 2014. 

COBRA Subsidy:  Beginning of the End?

The temporary 65% federal subsidy of COBRA health insurance premiums for workers and their families who were involuntarily terminated between Sept. 1, 2008 and Dec. 31, 2009 will start ending for workers this week.  The reduced-cost premiums only last for nine months, so those who started getting subsidized coverage in March — the first full month after the stimulus bill was signed — lost it on Tuesday. For those who started receiving subsidies after March, the expiration will be nine months after their start-up date, unless the provisions are extended. 

There are several bills currently pending in both the House and the Senate to extend and possibly expand the subsidy provisions that could be attached to several different moving pieces of legislation.  We will continue to keep you apprised of any breaking COBRA developments.  In the meantime, the Department of Labor has issued the following frequently asked questions document relative to continuing subsidy eligibility that may help you with any employees that have questions--Questions Regarding Current Eligibility for the COBRA Premium Reduction.

Compliance with Genetic Discrimination Rules

The federal departments of Labor, Health and Human Services and Treasury have put out interim final rules implementing sections 101 through 103 of the Genetic Information Nondiscrimination Act of 2008 (GINA) this past week, that could have implications for you if your plan includes a disease management program and/or a wellness program that uses a health risk assessment (HRA) that asks family history questions.  

The interim final rules implement provisions of GINA prohibit group health plans from discriminating on the basis of genetic information.  Unfortunately, the rules extend these prohibitions to family-history questions on health-risk assessment forms used to place people in appropriate wellness and disease management programs.  The effective date of this regulation is December 7, 2009, so your company may need to make quick plan changes to avoid being unintentionally out of compliance.  If you have already distributed HRAs that include questions about family medical history as part of your open enrollment materials for the 2010 plan year, please contact us at Benefit Development Group right away, so that we can help you make needed modifications to your benefit plan program. 

Compliance With Other New Laws in 2010

A number of new laws affecting employee benefit plans were enacted in the past few years that have compliance implications for employers and requirements that must be adopted by plans by the end of 2009.  Here’s a list of all of the new laws that may impact you, excerpted from BNA’s Daily Report for Executives published on November 30, 2009.  For compliance help and questions, please contact us at Benefit Development Group.

• Mental Health Parity: The Wellstone-Domenici Mental Health Parity and Addiction Equity Act goes into effect for most plans Jan. 1, 2010. The law does not require employers to provide benefits for mental health and substance abuse services, but it does require employers with 50 or more employees who choose to provide mental health and substance abuse benefits to provide those benefits on the same level as they provide for traditional medical and hospital benefits.

• Coverage for College Students: Michelle's Law requires group health plans to continue coverage for dependent college students on medical leave for one year after the first day of the medically necessary leave of absence, or until the date on which such coverage otherwise would terminate under the terms of the plan. The law is effective for calendar year plans beginning Jan. 1, 2010, and amends ERISA, PHSA, and the Internal Revenue Code.

• Children's Health: The Children's Health Insurance Program of 2009 (Pub. L. No. 111-3) has special enrollment rules, effective April 1, 2009, that require employers to amend their plans to allow special enrollment rights in employer-sponsored plans for individuals that become eligible for state-paid coverage under CHIP. 

• Patient Privacy: Privacy and security rules under the Health Insurance Portability and Accountability Act (HIPAA) (Pub. L. No. 104-191) were extended to cover all business associates of entities covered by HIPAA, including health care plans as well as third-party administrators and other vendors. The Health Information Technology for Economic and Clinical Health (HITECH) Act interim rules, issued in October 2009, amended the HIPAA enforcement regulations for civil monetary penalties by significantly increasing potential civil penalties for HIPAA violations and establishing a tiered penalty structure based on categories of violations. The rule becomes effective Nov. 30, 2009, and applies to violations occurring on or after Feb. 18, 2009, when the HITECH Act became effective. On Aug. 24, 2009, HHS published interim final rules on the breach notification requirements and guidance on encrypting/decrypting protected health information. The interim final rules are effective Sept. 23, 2009, but HHS will not begin enforcement of the rules for failure to provide notifications that are discovered before Feb. 22, 2010. Between those two dates, the agency said that it expects covered entities to comply with the rules, and that it will help covered entities to achieve compliance through technical assistance and voluntary corrective action.

 A side by side comparison of the comprehensive Health Reform Measures under consideration in the Senate and U.S. House of Representatives is attached.

Additionally, we will continue to keep you up to date on benefit news and pertinent topics as they arise. 

Comparison of the Health Reform Measures Under Consideration.pdf