Benefits Blog

Excerpt from Professor Jost's post on Health Affairs Blog:On November 8, 2016, in a stunning upset, Donald Trump was elected president of the United States. The Republican Party, under whose banner he run, retained control over both the House and Senate. President Trump will be able to appoint at least one Supreme Court justice almost immediately and possibly more during his term in office. He will also appoint dozens of district and appellate court judges. Finally, he will presumably replace the cabinet secretaries and most of the political appointees in the Departments of Health and Human Services, Labor, and Treasury — that administer the Affordable Care Act. The Republicans own the national government, and many state governments. So what does his victory mean for the Affordable Care Act? This post is a tentative first pass at this question.

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In recent guidance, HHS expanded (HHS officials would probably prefer, "clarified") the obligations of HIPAA covered entities, including employer-sponsored group health plans, and their business associates with respect to cloud computing. The bottom line is that whenever a cloud service provider has electronic protected health information (ePHI), it becomes a business associate (if the relationship was with the health plan or employer) or subcontractor to a business associate (if the relationship is with the health plan's consultant or vendor). Why Is it Important if Cloud Computing Vendors Are Business Associates?All health plans that have any kind of access to PHI must have a business associate agreement with any person or entity deemed a business associate. Likewise, all business associates must have a similar contract with their vendors that have access to PHI.

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Last month the IRS released the final instructions to the 2016 Forms 1094-C and 1095-C, which will be filed in first quarter 2017. I wrote on some key issues raised by the draft instructions a while back (see here and here). The final instructions do not change much of substance, and so the points I made in each of those articles remain valid. (If you haven't read those posts, you should do so.) In this post, I'll emphasize some of the technical issues illuminated by the final instructions and provide a few final takeaways before the reporting season begins in earnest.Technical Issues IlluminatedLook-Back Measurement Method OK for 1094-C, Part III, Column (b)First, when discussing Form 1094-C, Part III, column (b) the final instructions make it clear that an employee should be counted as a full-time employee for the purpose of that column if he/she satisfies the definition of a full-time employee under the monthly measurement method or the look-back measurement method (emphasis added).

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First off, I really wish government agencies would stop using the same term for a multitude of things. The term "covered entity" as used here bears no relation whatsoever to the exact same term HHS uses in its HIPAA privacy, security and breach regulations. To distinguish between the two I'll use "Section 1557 covered entity." There's been much ado lately over Section 1557 nondiscrimination. If you recall, Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. HHS recently issued some rather onerous regulations and gave Section 1557 covered entities very little lead time to implement them. The first and most important point to take away from the Section 1557 final regulations is this: If you're not in the healthcare industry and you don't take Retiree Drug Subsidy, it's extremely unlikely that the nondiscrimination rules HHS issued under Section 1557 of the ACA apply to you.

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It's not often that a retirement benefits compliance issue crosses over to the welfare side, but it does happen. Most recently this occurred with respect to health savings accounts (HSAs) and the DOL's fairly recent rules regulating ERISA fiduciary conduct, which aim to better define who is a fiduciary under ERISA when someone is providing investment advice or recommendations. What's interesting is that DOL expressly included vendors involved in the administration of HSAs in the scope of the new fiduciary rules.Employers Should Care about the Fiduciary Status of HSA TrusteesAs in the retirement benefits context, the folks setting up the investment platform and providing individual participants investment advice or recommendations are fiduciaries.

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