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Healthcare Update |
To: |
National Grocers Association |
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From: |
Epstein Becker & Green |
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Date: |
March 28, 2013 |
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Re: |
Summary of Proposed Rules on the 90-Day Waiting Period Limitation and Technical Amendments to Existing Requirements; Self-Compliance Tools; Technical Release on External Review Process Implementation and Related Consumer Protections |
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To download a PDF of this memorandum, click here.
I.Introduction
On March 21, 2013, the Departments of the Treasury, Labor, and Health and Human Services (collectively, the "Departments") published in the Federal Register proposed rules that (1) implement the 90-day waiting period limitation added by the Affordable Care Act ("ACA"), and (2) make technical amendments to certain existing requirements under ACA. Comments are due on May 20, 2013. The Department of Labor also recently released two compliance tools to help employers determine if their health plans comply with requirements under the Employee Retirement Income Security Act ("ERISA"). Moreover, on March 15, 2013, the Departments issued Technical Release 2013-01, addressing external review process implementation and a set of related consumer protections. This memorandum summarizes these recent developments and their impact on NGA members.
II.The 90-Day Waiting Period Limitation
General Rule
Under ACA, a group health plan offering group health insurance coverage may not apply any waiting period that exceeds 90 days before coverage can begin for eligible group members. This prohibition applies to both grandfathered and non-grandfathered group health plans and group health insurance coverage for plan years beginning on or after January 1, 2014. NGA members should note that ACA does not require employers to offer health insurance to any particular employee or class of employees, including part-time employees; however, large employers (50 or more FTE) may be subject to a penalty if they fail to offer coverage. For a more detailed discussion of the employer shared responsibility provisions, consult the memorandum distributed on January 2, 2013. ACA only prohibits an otherwise eligible employee or dependent from being required to wait more than 90 days before coverage becomes effective. The regulations on the waiting period limitation follow previous guidance, issued in February and August of 2012, which outlined various approaches to both the 90-day waiting period limitation and the employer shared responsibility provisions.
Under the proposed rules, a group health plan and a health insurance issuer offering group health insurance coverage may not apply any waiting period that exceeds 90 days. The proposed rules define a waiting period as the period that must pass before coverage can become effective for an employee or dependent who is otherwise eligible to enroll under the terms of a group health plan. A plan or issuer will comply with this provision as long as, under the terms of the plan, an employee can elect coverage that takes effect on a date within the 90-day waiting period. Therefore, a plan or issuer will not be considered in violation of this provision merely because employees or other participants may take additional time beyond the 90-day waiting period to elect coverage. If an employee or dependent enrolls as a late enrollee or special enrollee, any period of time before such enrollment is not a waiting period.
Eligibility Criteria and the 90-Day Waiting Period Limitation
Eligibility conditions that are based solely on the lapse of a time period are permissible for no more than 90 days. Nonetheless, the proposed rules generally do not prohibit other eligibility conditions unless the condition is designed to avoid compliance with the 90-day waiting period limitation. Therefore, the proposed rules allow such eligibility conditions as being in an eligible job classification or achieving job-related licensure requirements. However, if a group health plan or health insurance issuer conditions eligibility on any part-time or full-time employee's completion of a number of cumulative hours of service, the number of cumulative hours must not exceed 1,200. If a cumulative hours-of-service requirement exceeds 1,200 hours, it is considered to be designed to avoid compliance with the 90-day waiting period limitation and is therefore prohibited. The proposed rules do not prohibit plan provisions that require employees to work a certain number of hours per period but permit them to make a self-payment or buy-in if they do not have a sufficient number of hours.
Multiemployer Plans
Multiemployer plans often contain unique eligibility conditions based on the employer's industry or the employee's occupation. The prohibition on 90-day waiting periods does not prohibit most such eligibility conditions. For example, eligibility provisions based on compensation are allowed. Moreover, hours banks, which allow employees to bank excess hours from one measurement period and use them to compensate for any shortage in a succeeding measurement period and prevent lapses in coverage, do not violate the 90-day waiting period limitation.
Method of Counting Days
Under the proposed rules, the 90-day waiting period limitation is absolute, and all calendar days are counted beginning on the enrollment date, including weekends and holidays.
III.Technical Amendments
The Departments' proposed rules also set forth several technical amendments. In particular, the proposed rules amend regulations related to preexisting condition exclusions under the Health Insurance Portability and Accountability Act ("HIPAA"). Under regulations implementing HIPAA, group health plans and health insurance issuers must furnish certificates of creditable coverage showing an individual's prior health plan coverage. Such certificates were necessary because exclusions based on preexisting conditions were permissible under HIPAA and its implementing regulations, and such exclusions could be reduced using creditable coverage. However, since ACA bans exclusions of coverage based on preexisting conditions, these certificates will no longer be required as of December 31, 2014.
IV.Two Compliance Tools
Recently, the Department of Labor released two compliance tools to help plan sponsors determine whether a group health plan complies with Part 7 of ERISA.[1] The tools are comprised of questions that the Department of Labor might ask and a list of documents that might be requested if a group health plan is audited. The first tool is a list of questions related to compliance with HIPAA and other non-ACA provisions from Part 7 of ERISA. It includes questions on preexisting condition exclusions, certificates of creditable coverage, wellness programs, mental health parity, newborn coverage, and use of genetic information. The second tool contains a list of explanatory questions and answers on ACA provisions. It addresses, among other provisions, grandfathered plans, covering children up to age 26, rescissions, lifetime and annual limits, preexisting condition exclusions, summary of benefits and coverage, preventive services, and external reviews.
V.Technical Release 2013-01
Under ACA, group health plans and health insurance issuers in the group and individual markets must comply with a state external review process if that process includes certain minimum consumer protections. If a state's external review process does not meet these minimum consumer protection standards, that state's group health plans and health insurance issuers in the group and individual markets must implement an effective external review process that meets minimum federal standards. Technical Release 2011-02 established a transition period until January 1, 2012 for state external review process implementation and a set of consumer protections that would apply until January 1, 2014. On March 15, 2013, the Departments issued Technical Release 2013-01, which provides that these temporary consumer protections will be applicable until January 1, 2016.
VI.Potential Impact on NGA Members
NGA members should make sure they understand the proposed rules on the 90-day waiting period limitation. Affected entities may rely on the proposed rules at least through the end of 2014. To the extent that final regulations or other guidance with respect to the 90-day waiting period limitation are more restrictive on plans and issuers than the proposed regulations, the final regulations or other guidance will not be effective until at least January 1, 2015.
[1] The tools can be found at http://www.dol.gov/ebsa/healthlawschecksheets.html.
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FAQs about Affordable Care Act Implementation Part XI
The DOL published the Affordable Care Act update XI on January 24, 2013. The update contained two items which we would like to bring to your attention. Click here for the full update Part XI.
First, the DOL delayed the March 1, 2013 requirement that employers provide a written Exchange Notice to each employee at the time of hire. The DOL expects the distribution of notices will be in summer or late fall.
Second, there were a number of unresolved issues concerning HRA’s addressed in the update. The ACA prohibits plans from setting lifetime or annual limits. Your HRA has a maximum reimbursement limit therefore is non-compliant, as originally written. The regulation made no sense.
The update said an HRA which is “integrated” with other coverage, i.e. piggy-backs with a High Deductible Health Plan, and the other coverage alone meets the ACA requirement, the HRA with a limited reimbursement is allowed.
The integrated HRA must be tied to the employer’s group medical plan having unlimited coverage. HRA’s tied to an individual medical plan or provide benefits to employees not covered under the group medical plan are not integrated, therefore these HRA’s must provide unlimited benefits.
Most all of the HRA plans Averill Anderson, LLC administrates qualify as an integrated HRA. Further guidance will be forthcoming and we will pass along information as soon as possible.
Thank you for your support,
Best regards,
Randall LAverill randy@averillanderson.com
R. Mark Anderson mark@averillanderson.com
Affordable Care Act
(aka Obamacare)
Click here for a link to replay the January 31, 2013 Webinar presentation made by Penny Wofford, Ogletree Deakins. Or type this into your browser URL box: http://media.beaconlive.com/viewitem?bckt=100967
Click here for a Word doc entitled:
Health Care Reform: How to Count Full Time Employees and Full Time Equivalent Employees
“We Welcome SNAP” Materials
Are you looking for “We Welcome SNAP” signage for your store? SNAP-authorized retailers can order “We Welcome SNAP” posters and decals in English and Spanish by sending a request to the USDA Food and Nutrition Service at: BRSB.printshop@fns.usda.gov.
Please include the name, address, and phone number of the addressee to whom the materials should be sent. If our National Office has any questions concerning the request, they will contact you. You may also call the Food and Nutrition Service retailer hotline to order the materials: 1-877-823-4369.
The new SNAP logo and materials include a simple but important message: Putting Healthy Food within Reach. USDA encourages SNAP-authorized retailers to utilize signage and other promotional strategies to help SNAP customers achieve a healthy diet on a limited budget.
Coupon Fraud Warning Sign Checklist
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The UPC bar code is missing or altered.
The coupon should have at least one UPC barcode that is clearly printed, legible and easy to scan. Check to see that the barcode is not blurry. Look closely to see whether it may have been altered in any way. -
It looks as if it has been photocopied or scanned. The print, type, photos, graphics or other details may be distorted, the ink may be smeared, the lines crooked or the font design may appear less than professional. Check the smallest type, the expiration date, the barcode or other details for smudges, blurry type, marks and irregularities.
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It features amateur design. If the artwork, typefaces, colors or logos overlap or are mismatched and appear unprofessionally designed, it may be a fake coupon.
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The offer amounts don't match. If the value in one area of the coupon is different than the offer on another part of the coupon, it's fraudulent.
It's for a free or too-good-to-be-true discount. Manufacturers typically limit coupons to no more than 50% of the product value. If it's 75% or more, it's likely counterfeited.
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It is displayed in a pdf format. Many fake coupons have been altered and then saved in pdf formats. This format can be easy to manipulate and is probably not legitimate. Also, a legitimate site doesn't usually show the entire coupon online.
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It is sold via on-line auction or other outlets. It is illegal to sell coupons and this violates the terms of non-transferable coupons, as well as intellectual property rights.
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The expiration date is altered or covers an extended period of time. Check to see whether the date appears to have been altered or covers an unusually long period of time. Most online coupons have limited-time offers that are typically less than three months.
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Missing legal language. Legitimate online coupon providers typically include legal messages that deter counterfeiting and redemption fraud. Look for messages such as "this coupon may not be altered, transferred, copied, purchased or sold," or similar language.
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Someone else's personal identification. Some coupons are identified with an individual's name, address, customer identification number or other unique information. If so, the coupon was likely intended for use by another person. In such cases, grocers may require identification at checkout and unsuspecting users could be implicated in coupon fraud.
USDA Announces Additional Choices for Beef Products in the Upcoming School Year
USDA Affirms Safety of Lean Finely Textured Beef Product for Consumers
USDA Office of Communications (202) 720-462
WASHINGTON, March 15, 2012 – In response to requests from school districts across the country, the USDA announced today that it will offer more choices to schools in the National School Lunch Program when it comes to purchases of ground beef products.
USDA only purchases products for the school lunch program that are safe, nutritious and affordable – including all products containing Lean Finely Textured Beef. However, due to customer demand, the department will be adjusting procurement specifications for the next school year so schools can have additional options in procuring ground beef products. USDA will provide schools with a choice to order product either with or without Lean Finely Textured Beef.
USDA continues to affirm the safety of Lean Finely Textured Beef product for all consumers and urges customers to consult science based information on the safety and quality of this product. Lean Finely Textured Beef is a meat product derived from a process which separates fatty pieces from beef trimmings to reduce the overall fat content.
By law, USDA has two primary responsibilities as part of its mandate to provide safe and nutritious food to the American people. Through the Food Safety and Inspection Service, USDA ensures that safety of the nation's commercial supply of meat, poultry, and processed egg products. Through the Food and Nutrition Service and the Agricultural Marketing Service, USDA provides food and nutrition assistance through several domestic programs, including the National School Lunch Program.
While USDA sets national nutritional guidelines for school meals, school districts make local decisions on what food to feed kids to meet these guidelines. On average, schools in the National School Lunch Program purchase approximately 20 percent of their food through USDA, and approximately 80 percent of food served is purchased directly by schools or school districts through private vendors. Schools purchase food from the department through the USDA Foods Program, which provides more than 180 nutritious food items that are fresh, frozen, packaged, canned, dried, or in bulk. USDA procures these products based on the demand from schools to help meet the menu planning needs, student taste preferences, school nutrition goals, and local wellness initiatives.
USDA ensures all food purchased for the National School Lunch Program meet stringent food safety standards, which includes rigorous pathogen testing. Purchase specifications are continually reviewed, microbial test results are evaluated, new food safety technologies are considered, and food safety experts are consulted to determine the adequacy of our food safety requirements.
| Click here for a Word doc of the above. |
USDA Background on Lean Finely Textured Beef
USDA has two primary roles regarding this issue: to ensure that meat and poultry products are safe for consumption and to purchase a limited amount of food for our nation’s schools.
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All USDA ground beef purchases must meet the highest standards for food safety. USDA has strengthened ground beef food safety standards in recent years and only allows products into commerce that we have confidence are safe.
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USDA Foods Program are equal to, and often exceed, the quality of their commercial counterparts. Among the policies and procedures currently protecting school children are inspection and food safety plan requirements for each cafeteria, rigorous purchasing requirements and testing protocols, and mandatory food safety controls.
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Only beef that has successfully completed the inspection requirements by the Food Safety and Inspection Service is eligible to enter into the National School Lunch Program. In addition, the Agricultural Marketing Service (AMS) imposes strict requirements on food purchased by USDA for the NSLP to ensure that the food served to our children is safe, such as routine testing of all ground beef products for pathogens before any product is delivered.
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USDA has a zero tolerance for Salmonella and E. coli O157:H7. All USDA Agricultural Marketing Service (AMS) beef purchases for the NSLP and other Federal food and nutrition assistance programs meet very high food safety standards, which include stringent pathogen testing. Beef supplied by BPI for the NSLP is not exempt from AMS’ strict pathogen testing requirements. Beef that tests positive for these organisms is rejected and is diverted from the Federal purchase program.
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Lean Finely Textured Beef (LFTB) is a meat product derived from a process which separates fatty pieces from beef trimmings to reduce the overall fat content.
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LFTB is used in many commercial ground beef products available in fast food chains, restaurants, retail grocery stores, and non-commercial operations such as hospitals, in addition to schools.
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Ammonium hydroxide is a processing agent used in a variety of foods, such as baked goods, gelatins and puddings, and cheeses, and can occur naturally in foods. In meat processing, industry uses ammonium hydroxide to produce a lean product that is added to ground beef to reduce the overall fat content without compromising flavor. It also has some degree of antimicrobial effect.
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The Food Safety and Inspection Service and the Food and Drug Administration consider ammonium hydroxide as “Generally Recognized As Safe.” For more information, click here.
| Click here for a Word doc of the above. |
FMI WINE STUDY
The Economic Impact of Allowing Shoppers to Purchase Wine in Food Stores
For questions or comments, please contact: Patrick A. Davis, V.P. State Government Relations, Food Marketing Institute
Counterfeit checks have appeared in and around Canarsie, Brownsville, East NY, South Richmond Hill,
South Jamaica and Woodhaven. While these are excellent copies they are not perfect and, when compared with real WIC checks, you will see at least some of the following defects:
- Smaller from top to bottom (1/8th to 3/16ths of an inch)/
- No perforated edge at top or bottom
- Thicker paper stock/
- “State of New York” is noticeably bolder and the letters appear to bleed
- Shaded areas do not have the same background pattern as the rest of the check
- Watermark on back of check is much more easily seen
Click here for more information.
Questions and Answers on Store Gift Card Regulations Compliance
On May 22, 2009, the Credit Card Accountability Responsibility and Disclosure Act of 2009 (the CARD Act) was signed into law.1 The CARD Act contains provisions affecting fees, expiration dates and related disclosures on store gift cards among other things. The CARD Act was modified by a law signed on July 27, 2010,2 to give retailers more time to comply.
Retailers have had a number of questions regarding compliance with the CARD Act. This document addresses the key questions retailers have posed to FMI on the CARD Act. For additional information please contact FMI’s regulatory counsel, Erik Lieberman at elieberman@fmi.org or (202) 220-0614. Click here to download a pdf of Questions and Answers on Store Gift Card Regulations Compliance.
Click here to download the 2012 WGA Vacation Planner. This calendar is 8.5x14 inches.
Copy Machine Issues: Security
View this movie about copy machines and their security issues. (Click to download a short movie.)
The Shelby Report of the Midwest
Click here to see a feature on Hispanic Products from the July 2010 Shelby Report.
Member Benefits and Information
What WGA has to offer, you can't get anywhere else.
Certified Green Grocer Learn more about the WGA Green Grocer Certification Program and the WGA Green Grocer Rebuild Grant Program.
Endorsed Vendors WGA endorses the services of qualified companies. Discounts are available to members from these companies.
Click here to download the Society Insurance brochure.
FoodShare More information coming soon.
Human Resource Share Group The Human Resource Share Group offers you grocery-industry specific publications.
Grocers Buy Local WGA is proud to be a part in helping grocers buy local produce. We worked with the Wisconsin Department of Agriculture, Trade and Consumer Protection to develop grocersbuylocal.com.
Member Products We make it easier to comply with regulations by providing the services you need. Order products that make your job easier.
Member Services Representative
Product Recalls and Coupon Fraud Count on WGA to keep you up-to-date on product recalls and coupon fraud. Request your weekly e-newsletter for the full story.
Industry Forms Get handy access to industry forms on subjects like sales and use taxable items.
Coupons Program A coupon redemption program through American Coupon Services is available to all retailer members of the Wisconsin Grocers Association.