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Presenting a live 90-minute webinar with interactive Q&A

DOL Audits of Employer Health Plans: Preparing for Increased ACA and Mental Health Parity Act Audits

Responding to Audit Letters, Navigating DOL Investigations, Avoiding HHS and IRS Scrutiny

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, NOVEMBER 19, 2015

Lisa A. Christensen, Senior Counsel, Bond Schoeneck & King, Syracuse, N.Y . Ryan C. Temme, Attorney, Groom Law Group, Washington, D.C. Gary A. Thayer, Of Counsel, Archer Byington Glennon & Levine, Melville, N.Y .

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OVERVIEW OF DOL (EBSA) AUDIT PROCEDURES and Affordable Care Act Compliance

GARY A . THAYER, ESQ. ARCHER BYINGTON GLENNON & LEVINE, LLP 1 HUNTINGTON QUADRANGLE, SUITE 4C10 MELVILLE, NY 11747 11747 GTHAYER@ABGLLAW.COM

Overview of DOL (EBSA) Audit Procedures Health Benefits Security Project (HBSP)

Established in FY 2012, the HBSP is EBSA’s comprehensive national health enforcement project. In pertinent part, HBSP examines compliance with Part 7 of ERISA and ACA, investigations of insurance companies and claim administrators to ensure that promised benefits are actually provided, and criminal investigations of fraudulent medical providers.

6

AUDIT PROCEDURES

Statutory Authority granted under ERISA section 504, governing the right to inspect private sector retirement and welfare plans. Look to the Opening Letter for guidance on why you are being audited:

• Program 53
• Program 48
• Program 52
• Program 50

7

Sources for Potential Health Plan Audits

• Information from detailed review of annual report forms

5500, supporting financial statements, schedules, etc.

• Information concerning employee health benefit plans or

service providers from other governmental agencies such as HHS and state insurance agencies

• Media Driven: Newspapers, industry journals and

magazines, or leads from knowledgeable parties such as patient advocacy groups, or private litigation

• Participant complaints

8

Types of Health Plan Audits

Plan Level Audits

• In addition to part 6 and 7 of ERISA and ACA, cases will also examine

compliance with other ERISA provisions such as claims administration, failure to provide promised benefits at the plan level, reasonable administrative fees, and potential prohibited transactions. Service Provider Investigations

• Determining whether service provider exercises discretion or control
• ver benefit claims decisions. These audits focus on procedural,

substantive and disclosure violations related to the denial of promised health benefits.

9

DOL Audit Process

• Opening Letter (document request) or subpoena
• On-site/off-site document review
• Interviews of key personnel
• Voluntary compliance (VC) letter – 10 day letter
• Refer for litigation or continue to keep case open,

investigate related plans of the same sponsor

10

Key Actions and Issues Before, During and After an Audit

What to do after receiving the “opening letter” but before the audit begins –

• Ensure the lawyer and accountant are notified;
• Determine what is being audited – it’s the professional’s job to assess;
• Review insurance policies and contact your insurance provider (fiduciary

insurance carrier);

• Self-audit documents based on the opening letter;
• Consider Atty-Client Privilege
• Establish a contact person/team to work with DOL. Generally, the

attorney should be the contact person. DOL expects this.

• Request extension of time, if necessary.

11

Before the audit begins…

Prepare to Leave a Good First Impression Document Production and Audit Management:

• Orderly and professional presentation in the order requested;
• Provide the information in the manner requested, copies, electronic,

etc.;

• Keep track of all documents initially provided;
• Provide copies only on request and with transmittal letter, reviewed

by attorney.

12

During the Audit

Evaluate the “personality” of the auditor

• Subjectivity plays a role in the investigative process. Auditor bias may help

you anticipate what the focus of the audit is and where the auditor is headed.

• Personality shaped by the management style and background of the regional

directors and the head of the regional Office of the Solicitor

• Preponderance of lawyers v. accountants

Figuring out “personality”

• Review local press releases issued by the regional and district offices
• Review litigation files by DOL in one’s specific jurisdiction only (U.S. District

Court), and

• Speak with attorneys and professionals who have dealt with DOL in past

13

During the Audit…

• Limit the auditor’s access while on premises
• Have your benefits counsel present if possible
• Don’t volunteer information
• Be comfortable with your own silence
• Answer all questions honestly but only the question asked
• Cooperate but remember, it is an audit

14

After the Audit… Planning the post audit response

• Sometimes a long time without any response from DOL
• Discuss with your clients/professionals how to react (i.e., statute of

limitations)

• Although you are supposed to receive a closing letter or a VC letter, in rare

instances you may not receive either

• Plan’s response – agree/disagree with EBSA findings; or, do not admit

fault but comply with VC letter anyway

• Settle/litigate
• Regional Solicitor of Labor
• DOL/EBSA National Enforcement
• Referral to another agency – IRS, Justice Department, etc.

15

Health Plan Audits– Case Opening and Initial Review

Any investigation, other than a criminal investigation, involving a group health plan or service provider should be opened as a Program 50 Although the audit may touch on a review of ERISA’s 404 and 406 provisions, the focus will be a compliance review of ERISA parts 6 and 7 relating to the following:

• Consolidated Omnibus Budget Reconciliation Act (COBRA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Mental Health Parity Act (MHPA)
• Mental Health Parity and Addiction Equity Act (MHPAEA)
• Women’s Health and Cancer Rights Act (WHCRA)
• Newborn’s and Mother’s Health Protection Act (Newborn's Act)
• Genetic Information Nondiscrimination Act (GINA)
• Michelle’s Law
• Children’s Health Insurance Program Reauthorization Act (CHIPRA)
• Patient Protection and Affordable Care Act (ACA)

16

What is DOL reviewing?

• Nondiscrimination based on health status;
• Standards relating to benefits for mothers and newborns;
• Parity in Mental Health and Substance Use Disorder Benefits;
• Required coverage for reconstructive surgery following mastectomy;
• Prohibition on preexisting condition exclusions or other discrimination

based on health status;

• No lifetime or annual limits;
• Prohibition on rescissions;
• Coverage of preventive services;

17

What is DOL reviewing?

• Extension of dependent coverage;
• Patient protections;
• Appeals process.

18

General ACA Compliance – What DOL is asking for

DOL Health Plan Audit Questions Determining if a Plan is truly “grandfathered” –

• Has the plan eliminated all or substantially all benefits to diagnose or treat a

particular condition?

• Has the plan increased a percentage cost-sharing requirement (such as an

individual’s coinsurance)?

• Has the plan increased a fixed-amount copayment such that the increase from

March 23, 2010 exceeds the greater of maximum percentage increase, or an amount equal to $5 plus medical inflation?

• Has the plan increased a fixed-amount cost-sharing requirement other than a

copayment (such as a deductible or out-of-pocket limit) such that the total percentage increase measured from March 23, 2010 exceeds the maximum percentage increase?

• Maximum percentage increase is medical inflation, expressed as a percentage, plus 15 percentage

points (Medical inflation is the increase in the overall medical care component of the Consumer Price Index)

19

General ACA Compliance – What DOL is asking for

Determining if a Plan is truly “grandfathered” –

• Has there been a decrease in the contribution rate by the employer towards

the cost of any tier of coverage for any class of similarly situated individuals by more than 5 percentage points below the contribution rate for the coverage period that includes March 23, 2010?

• Did the plan change issuers after March 23, 2010?
• If a group health plan changed issuers after March 23, 2010 and the change was

effective prior to November 15, 2010, the plan will have relinquished grandfathered status. If the change in issuer was effective on or after November 15, 2010, the plan will continue to be a grandfathered plan provided no other changes occur.

• Does the plan include a statement that it believes it is a grandfathered plan

in any plan materials?

• Must include a statement in order to maintain grandfathered status.

20

Losing Grandfathered Status

• DOL will review Plan to ensure that you are providing the following:
• Preventive Care Services with no cost sharing;
• Provider choice for plans with network providers;
• Choose any primary care provider/pediatrician; and
• Directly access obstetrical or gynecological care without referral
• Emergency Coverage
• No prior authorization requirement;
• Must provide same benefits for in-network and out-of-network services; and
• Cannot require differential administrative costs based on in-network/out-of-

network services.

21

Determining Compliance with ACA Extension of Dependent Coverage of Children to Age 26

Applies to both grandfathered and non-grandfathered plans if they provide coverage for dependent children

• Plans and issuers cannot deny or restrict dependent coverage for a child

who is under age 26 other than in terms of a relationship between a child and the participant

• Plan or issuer does not fail to satisfy the requirements because the plan

limits health coverage for children to only those children who are described in section 152(f)(1) of the Internal Revenue Code (i.e., sons, daughters, stepchildren, adopted children (including children placed for adoption), and foster children). Grandchildren and nieces are not included.

22

Changes to your Appeals Procedures

• Enhanced disclosure and conflict of interest rules for

Internal Appeals

• Plans must automatically disclose new evidence or

rationale being used prior to appeal

• Can’t make compensation or other employment decisions

based on claims (e.g., can’t provide bonus to claims adjusters based on number of denials)

• Participant notices must be culturally and linguistically

appropriate on claimant’s request (% of participation threshold must be satisfied);

• EOB and denial notices must include diagnosis/treatment

codes.

23

Changes to your Appeals Procedures

New External Claims & Appeals Procedures

• After internal review, claimant has at least 4 months to

request external review by an accredited independent review organization (IRO);

• Denials involving medical judgment where you or

provider disagree with the Plan

• Denials due to “experimental or investigational”
• Must appoint at least three IRO’s to be used on an
• bjective, rotational basis or other method that

ensures independence

24

The “Hidden” Preexisting Condition Exclusion

Plan provision: Cosmetic Surgery for an injury is covered unless the injury occurred prior to coverage under the Plan.

DOL considers this a preexisting condition

• exclusion. DOL required Plan Administrator to

review all claims that were denied as a result of this provision for adjudication and to change plan provision.

25

Highlights of the latest opening letter for Program 50 Cases…

1. Plan document, SPD, Summary of Benefits and Coverage, Uniform Glossary; 2. Contracts with insurance companies or if self-insured, contracts for claims processing, administrative services, and reinsurance; 3. Documents which describe the responsibilities of both the employer and employees with respect to the payment of the costs associated with the purchase and maintenance of health benefits; 4. Plan’s rules for eligibility to enroll under the terms of the Plan; 5. Certificates of creditable coverage since January 1, 2009 and notices regarding preexisting condition exclusions; 6. Special enrollment rights and procedures;

26

Highlights of the latest opening letter for Program 50 Cases…(cont.)

7. Plan’s rules regarding coverage of medical/surgical and mental health/substance use disorder benefits; 8. Newborn’s Act notice (should be in the Plan’s SPD), including lists or logs of notices an administrator may keep of issued notices; 9. Initial WHCRA notice and sample of annual WHCRA notice;

• 10. If claiming Grandfathered Status, a copy of the status disclosure

statement that was required to be included in plan materials; and records documenting the terms of the Plan in effect on March 23, 2010, including terms of cost sharing, annual and lifetime limits on benefits, etc.

27

Affordable Care Act Audit Documents

Regardless of grandfathered status, sponsors are being asked to produce the following:

• Written notice describing enrollment opportunities relating to coverage
• f children to age 26;
• If participant or beneficiary’s coverage has been rescinded, supply a list
• f who and the reason for the decision. Must provide copy of the

notice that was provided 30 days in advance of any rescission of coverage;

• Documentation related to the elimination of lifetime limits and, if

applicable, annual limits.

28

Affordable Care Act Audit Documents

If a plan is not claiming grandfathered status

• Copy of the choice of provider notice informing participants of the right

to designate any participating primary care provider and a list of participant who received the disclosure notice;

• Copies of documents relating to provision of emergency services for

each plan year on or after September 23, 2010;

• Copies of documents relating to the provision of preventive services for

each year on or after September 23, 2010;

• Internal Claim and Appeals and External Review Processes;
• Copies of notice of adverse benefit determination, notice of final internal

adverse determination notice, and notice of final external review decision

• Copies of any contract with any independent review organization or third

party administrator providing external review.

29

MHPAEA Compliance

Ryan C. Temme

Associate Groom Law Group rtemme@groom.com

We will cover...



Background on Mental Health Parity and Addiction Equity Act



Overview of the Interim Final Rule and Final Rule



Areas of Current Focus in MHPAEA Investigations

• Classifications
• Financial Requirements
• NQTLs
• Disclosure



Recent Enforcement Activity by the DOL, State DOIs and HHS

31



The Mental Health Parity Act of 1996 prohibits group health plans from placing lifetime or annual limits on mental health benefits that did not apply to substantially all medical/surgical benefits.



MHPAEA passed in 2008 and was intended to provide parity for treatment limits and financial requirements.



MHPAEA was effective January 1, 2010 for calendar year plans (prior to the issuance of regulations).

Mental Health Parity and Addiction Equity Act (“MHPAEA”)

32



Interim Final Rule (IFR) was issued by IRS, CMS and DOL on February 2, 2010.



The IFR was applicable for the first plan year beginning on or after July 1, 2010.



IFR established parity standards for financial requirements, quantitative treatment limits and non-quantitative treatment limits on a classification-by-classification basis.

Background: MHPAEA Regulations

33



The IFR required parity for both quantitative and non-quantitative treatment limits (“NQTLs”).



NQTLs are any limitation on the scope or duration of coverage that cannot be measured numerically.



The IFR also required that parity be analyzed on a classification basis, and described six classifications that plans must use.

• Inpatient, in-network; Inpatient, out-of-network; Outpatient, in-

network; Outpatient, out-of-network; Emergency care; and Prescription drug

Interim Final Rule

34



The Final Rule was issued by IRS, CMS and DOL on November 13, 2013.



The Final Rule was applicable for the first plan year beginning on or after July 1, 2014.



The Final Rule permitted sub-classifications, established requirements for intermediate levels of care and added examples of non-quantitative treatment limits.

Final Rule

35

Specific classifications required by the rule are:

 Inpatient, in-network

• Sub-classification for multiple network tiers;

 Inpatient, out-of-network  Outpatient, in-network

• Sub-classification for office visits;
• Sub-classification for multiple network tiers;

 Outpatient, out-of-network

• Sub-classification for office visits;

 Emergency care  Prescription drug

Classifications and Sub-classifications

36

The Act requires that financial requirements that apply to mental health

• r substance use disorder benefits be “no more restrictive than the

predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan.”

 Financial requirements include deductibles, copayments,

coinsurance and out-of-pocket maximums

 A plan may not (without passing the parity tests) treat all mental

health/substance abuse disorder providers as specialists and automatically apply a higher copayment than for primary care physicians for medical/surgical

Financial Requirements

37



Quantitative treatment limitations – expressed numerically.

• Examples are day and visit limits
• Same predominant and substantially all test as financial

requirements

• Quantitative treatment limits cannot accumulate separately

Quantitative Treatment Limits

38



Non-quantitative treatment limitations are limitations that affect the scope or duration of benefits under the plan that are not expressed numerically.

• Any processes, strategies, evidentiary standards or other factors

used in applying the non-quantitative treatment limitation to mental health/substance use disorder benefits must be comparable to and applied no more stringently than the processes, strategies, evidentiary standards or other factors used in applying the limitation with respect to medical/surgical benefits in the same “classification.”

• Under the Interim Final Rule, variation was allowed to the extent

that recognized clinically appropriate standards of care may permit a difference.

Non-quantitative Treatment Limits: Defined

39

The Final Rule includes additional examples of NQTLs including:



sub-classifications for multiple network tiers and benefits furnished

• n an outpatient basis;



variation in training and state licensing requirements;



medical management techniques;



coverage of treatment settings;



geographic coverage limitations; and



prior authorization requirements.

Non-quantitative Treatment Limits: Examples in the Final Rule

40

Provider Reimbursement Rate and Provider Qualifications

 Issuers and plans may consider the following in determining

provider reimbursement rates for mental health and substance use disorder providers:

• Service type
• Geographic market
• Demand for services
• Supply of providers
• Provider practice size
• Medicare reimbursement rates
• Training, experience, and licensure of providers

Non-quantitative Treatment Limits: Provider Reimbursement and Qualifications

41



Plans and issuers must assign covered “intermediate mental health and substance use disorder benefits” to the existing six benefit classifications in the same way that they assign comparable intermediate medical/surgical benefits to those classifications.



The Final Rule requires assignment of covered services for intermediate levels of care and is not a mandate.

• The new Facility Type NQTL could require care in certain

settings, however.

Residential Treatment, Partial Hospitalization and Intensive Outpatient Treatment

42



The Final Rule requires the following disclosures:

• plan information on medical necessity criteria must be disclosed

to contracting providers;

• the reason for denial of a claim for mental health/substance use

disorder services must be disclosed to the participant, or the participant’s authorized representative (including authorized providers);

• information on medical necessity criteria for mental

health/substance use disorder benefits (and processes, strategies, evidentiary standards, and other factors used to apply non-quantitative treatment limits) are considered plan documents under which the plan is “established or operated” that must be furnished to plan participants under section 104 of ERISA.

Required Disclosure

43

Key Parity Issues

 Autism/ABA coverage  Treatment of transgender benefits  Coverage of residential treatment centers  Financial testing – particularly for OPT sub-classification  Sub-classification of benefits  Reimbursement parity  Medical management – preauthorization, concurrent care

44

DOL MHPAEA Investigations



Comprehensive MHPAEA audits – focusing on both insured and self- insured plan. Some investigations of insurer’s entire book of business



What’s Being Examined?

• Parity of financial benefits/cost-sharing
• Comparison of treatment limits for med/surgical and MH/SUD

benefits

• Comparison of NQTLs for med/surgical and MH/SUD benefits
• Disclosure of denied/partially denied MH/SUD claims
• All external review decisions relating to MH/SUD claims
• Analyses by plan or issuer re: testing of NQTL for parity

45



NQTL compliance



Preauthorization for outpatient therapy and inpatient admissions for MH/SUD as compared to medical/surgical



Financial Testing

• “Substantially all” testing for inpatient and outpatient,

especially when different cost-sharing is imposed, including specialist copay

• Sub-classifications of OPT
• Classifications of intensive outpatient, home health and

residential treatment facilities



NY AG Memorandum of Understanding with DOL

MHPAEA Investigations: By States

46

 Complaint Driven

• Preauthorization requirements for OPT
• Concurrent medical management programs for OPT
• Reimbursement parity for MH/SUD providers
• Parity of financial benefits/cost-sharing and facility charges

 Direct Enforcement States

• Policy form review for MHPAEA compliance
• Planning for Market Conduct Examinations

MHPAEA Investigations: By HHS

47

Recent MHPAEA Litigation

 Reimbursement Rates

 Complaints allege an NQTL violation in the manner in which MH/SUD

provider reimbursement rates are set.

 Amer. Psych Assoc. v. Anthem Health Plans: Second Circuit held that

association has standing to pursue suit under MHPAEA.

 Autism Services/ABA Therapy

 Complaints allege that plan limitations or exclusions for ABA services are

an impermissible NQTL.

 Cases have been brought in OR, WA, CA, PA, and KY challenging

limitations on ABA therapy under MHPAEA.

 A.F. v. Providence Health Plan: Court held that a developmental disorder

exclusion for ABA services violated federal and state parity requirements.

 Boeing settlement over ABA provider networking.

48

Recent MHPAEA Litigation

 Intermediate Levels of Care/RTC

 Cases have been brought in CA, FL, IL, and WA challenging exclusions for

RTC or limitation on RTC for substance use disorders and/or anorexia nervosa.

 Daniel F. v. Blue Shield of Cal.: Court denied class certification because of

the need for individual determinations of liability and damages.

 S.S., by and through her parents and guardians, M.S. and St.S. v.

Microsoft Corporation Welfare Plan: Court denied claim that RTC coverage was mandated under the IFR and that the Final Rule RTC guidance merely clarified the requirement.

49

Preparing Clients for Health Plan Audits

Lisa Christensen Schiller Bond, Schoeneck & King, PLLC One Lincoln Center, Ste. 1800 Syracuse, New York 13202-1355 Phone: 315-218-8279 lchristensen@bsk.com

Purpose of the Audits

• DOL (Investigation)
• Protect plan participants and beneficiaries from fiduciary

(including plan sponsor) wrongdoing − Compliance with ERISA, HIPAA, COBRA, ACA....

• Ensure participants:

− Understand when they are eligible for benefits − Understand what those benefits are − Know how to file claims and appeal any denials

• IRS (Examination)
• Compliance with applicable IRC provisions
• HHS
• Compliance with HIPAA Privacy, Security and Breach Notification

Rules

51

DOL Areas of Enforcement Other than ACA and MHPA/MHPAEA

• ERISA
• Adequate plan documentation

− Plan document, SPD, SMMs, wrap documents, amendments, annual reports

• Claims procedures
• QMCSO/NMSN procedures
• All contracts, policies, arrangements with service providers
• Copies of all required notices, including lists and logs of issued notices and description of

procedures for distribution

• Fidelity bond
• Health Insurance Portability and Accountability Act (HIPAA)
• Portability

− Special enrollment rights − Pre-existing conditions (exclusions prohibited under ACA beginning on or after January 1, 2014)

 Certificates of creditable coverage (not required after December 31, 2014)

• Non-discrimination requirements

− Discrimination based on specific health factors is prohibited with respect to eligibility, benefits, and premiums − Potential issues: “source-of-injury” provisions, opt-out payments to high claims participants

52

DOL Areas of Enforcement Other than ACA and MHPA/MHPAEA

• Consolidated Omnibus Budget Reconciliation Act (COBRA)
• SPD, General Notice, Election Notice
• Potential issues: extended leaves of absence/disability leaves, retiree coverage
• Newborns’ and Mothers’ Health Protection Act (NMHPA)
• Group health plans may not:

− Restrict benefits for any hospital length of stay in connection with childbirth for the mother or newborn child, following a vaginal delivery, to less than 48 hours, or following a cesarean section, to less than 96 hours; or − Require a physician or other health care provider to obtain authorization from the plan for prescribing the minimum hospital stay for the mother or newborn

• Required to be included in SPD
• Women’s Health and Cancer Rights Act (WHCRA)
• Group health plans that provide medical and surgical benefits for mastectomy are required to

provide benefits for reconstructive surgery. The benefits for reconstructive surgery may be subject to annual deductibles and co-insurance, but only if they are consistent with those established for other benefits under the plan.

• Written description of mandated benefits required to be provided upon enrollment and

annually 53

DOL Areas of Enforcement Other than ACA and MHPA/MHPAEA

• Genetic Information Nondiscrimination Act (GINA)
• Children’s Health Insurance Program Reauthorization

Act (CHIPRA)

• Michelle’s Law
• SPD
• MEWA Issues
• FMLA
• USERRA
• ADA
• ADEA

54

Most Common Violations – DOL Audits

• Failure to maintain required documentation
• Failure to provide required notices
• Improper claims adjudication/failure to follow

DOL claims procedures

• Failure to provide benefits in accordance with

plan terms

55

Sharing of Information

• IRS/DOL Coordination Agreement
• Agencies are required to share information
• HHS not yet included but likely in the future as HHS

expands HIPAA audits

• ERISA
• IRS is required to notify the DOL before issuing a

notice of deficiency resulting from (i) a qualified retirement plan failing to meet the requirements of IRC §§401(a), 410, or 411; or (ii) a prohibited transaction excise tax under Code §4975

56

IRS Audits

• Excise Taxes (Form 8928)
• Failure to satisfy portability, access, renewability and market reform requirements under IRC

§4980D

 ACA

• Prohibited employer payment plans

 HIPAA Portability and Nondiscrimination Requirements  Mental Health Parity  Newborns’ and Mothers’ Health Protection Act  Genetic Information Nondiscrimination Act  Michelle’s Law

• Failure to satisfy COBRA continuation coverage (and pediatric vaccine coverage)

requirements under IRC §4980B

− A copy of the health care continuation coverage procedures manual − Copies of standard health care continuation coverage form letters sent to the qualified beneficiaries − A copy of the taxpayer’s internal audit procedures for health care continuation coverage − Copies of all group health care plans − Details pertaining to any past or pending lawsuits filed against the taxpayer for failing to provide appropriate continuation coverage

• Failure to make comparable contributions to HSAs under IRC §4980G (and Archer MSAs

under IRC §4980E) 57

IRS Audits

• IRC §105

− What expenses are being reimbursed and how are reimbursements substantiated − Nondiscrimination testing and related issues − Integration issues (HRAs)

• IRC §125

− Written plan document (updated for new requirements) − Ineligible employees − Election/election change procedures − Nondiscrimination testing − Opt-out or waiver payments/constructive receipt

• IRC §129

− Calendar year limits exceeded − Nondiscrimination

• Abusive transactions

58

HHS Audits

• HHS
• HIPAA

−Plan-appropriate HIPAA policies and procedures −Business Associate Agreements −Proper use of PHI by Plan Sponsor −Participant notices −Training

• MHPAEA (insurers)

59

Best Practices/Preparing for an Audit

• Conduct a voluntary compliance audit
• Use counsel to preserve privilege

−Determine scope of audit −Counsel should hire any third parties and receive written reports

• Organize documents and review for completeness and

accuracy

• Plan documents timely signed and dated
• Necessary amendments and corporate authority for

actions

• Participant notices and disclosures
• Self-correct any errors discovered (if possible)

60

Health Plan Self Compliance Tools

• DOL
• http://www.dol.gov/ebsa/healthlawschecksheets.html
• IRS
• Audit Techniques and Tax Law to Examine COBRA

Cases (Continuation of Employee Health Care Coverage)

• HHS
• http://www.hhs.gov/ocr/privacy/hipaa/enforcement/aud

it/protocol.html

61

Self-Correction

• DOL
• Correction Programs

− Voluntary Fiduciary Correction Program − Delinquent Filer Voluntary Compliance Program

• “DIY”
• Work with counsel to develop and document reasonable

corrections − IRS: Update plan documents, issue corrected Forms w-2 − HHS: Adopt and/or update documents, notices, BAAs, policies and procedures, and perform or update risk assessment and employee training

62