News Flash: September 16, 2013 – Federal Regulators Have Been Busy; Two New Developments
News Flash: September 16, 2013 – Federal Regulators Have Been Busy; Two New
Late Friday, federal regulators issued guidance under the health care reform law regarding HRAs,
health FSAs and certain other benefits. As we were preparing to send our article on that
development, we got word that HHS issued a model notice of HIPAA privacy practices this
morning. These two developments are covered in separate articles below.
HHS Issues Model Notice of HIPAA Privacy Practices
Employers working to revise their notices of HIPAA privacy practices in time for the September
23 deadline for revisions may or may not be grateful for HHS’ assistance, but the agency has
issued several versions of a model notice of HIPAA privacy practices. The HHS posting includes
two separate model notices – one for health care providers and one for health plans. For health
plans, the posting provides a text version of the model notice, as well as versions in other formats.
The National Legal & Research Group is reviewing the model notices and will provide details on
them in a future publication.
The final HIPAA Privacy Rules (issued January 25, 2013) materially changed the required content
of the notice of HIPAA privacy practices that covered entities (including health plans) are required
to provide. As a result of the changes, self-insured employer-sponsored group health plans must
redistribute their notices of privacy practices by taking the following steps:
If the plan maintains a website including benefits information, the revised notice of privacy
practices must be posted on the website by September 23, 2013.
The notice of privacy practices must also be delivered to individuals. This delivery can be
made by email (if the individual has agreed to receive electronic distribution of such
notices) or the notice may be mailed (first class mail) or it may be delivered by
hand. Delivery of the notice does not require a special mailing, and the plan may choose to
include the notice with annual enrollment materials. NOTE: If the plan does not have a
website with benefits information, then the revised notice must be distributed within 60
days of the material revision.
Guidance on Applying Health Care Reform to HRAs, Health FSAs, EAPs and Certain Other
Under new guidance, it appears that stand-alone health reimbursement arrangements (HRAs)
providing benefits to anyone other than retirees are no longer viable. That is, in order for an
HRA to be exempt from certain health care reform requirements (which they generally
cannot meet), HRAs must be "integrated" with group health plan coverage. Integration
requires meeting several restrictive conditions. The guidance also addresses health FSAs,
employee assistance programs (EAPs), and arrangements under which employers pay or reimburse
premiums for individual health coverage or make a specified amount available for that purpose.
The health care reform law prohibits group health plans from having annual dollar limits on
benefits. HRAs are group health plans and, almost by definition, they have annual dollar
limits. Under an HRA, an employer makes a specified amount available to each employee in order
to reimburse qualifying medical expenses, which may include certain health insurance premiums.
In previous guidance, federal agencies clarified that HRAs which are integrated with major
medical coverage will be considered to comply with the health care reform law's prohibition of
annual limits (see Willis Human Capital Practice Alert, July 2010, "Patient's Bill of Rights
Guidance Issued"). Since then, the agencies have provided guidance on what it means for an HRA
to be integrated with a major medical program, and the extent to which other HRAs (stand-
alone HRAs) can avoid violating the prohibition of annual dollar limits (see Willis HR Focus,
Issue # 69, March 2013, "Agencies Release More Health Care Reform FAQs," section on
HRAs). The agencies have also previously confirmed that excepted benefits -- those benefits that
meet the requirements for exemption from the HIPAA portability requirements -- are not subject to
the coverage reforms included in the health care reform law, including the prohibition of annual
dollar limits on benefits and the requirement to provide preventive care with no cost sharing (an
explanation of excepted benefits can be found in Willis’ Human Capital Practice Alert, July 2011,
“Looking Ahead - Compliance After 2011,” and a recent clarification is explained in Willis HR
Focus, Issue # 69, March 2013, "Agencies Release More Health Care Reform FAQs," section on
The new guidance apparently is intended to coordinate previous piecemeal guidance and to fill in
gaps. The National Legal & Research Group is reviewing the guidance and will provide additional
details in future publication(s). Some highlights from the guidance include:
It appears that any HRA, other than a retiree-only HRA, must be integrated with a group
health plan in order to avoid violating the health care reform law's prohibition of annual
The guidance sets out two alternative multi-part tests for determining whether an HRA is
considered integrated with non-HRA group health coverage. While the tests allow for
additional situations to be considered integration, in the case of a typical employer-
sponsored HRA/major medical program, integration would exist if:
o The major medical portion of the coverage is considered to have at least 60%
actuarial value (it is unclear whether it must also be affordable for this purpose)
o The HRA is available only to employees who are enrolled in the major medical
o Each employee covered by the HRA is actually enrolled in the major medical
o The HRA allows each participant to permanently opt out of the HRA and waive
future reimbursements from the HRA at least annually and, upon termination of
employment, either any remaining balance is forfeited or the participant is
permitted to permanently opt out of the HRA and waive future reimbursements (the
guidance explains that this condition is necessary because HRA coverage is
minimum essential coverage and continuing availability of reimbursements would
preclude qualifying for premium assistance in connection with coverage obtained
through a health insurance exchange)
An HRA generally cannot be considered to be a health FSA for purposes of the exemption
from the annual dollar limits prohibition that applies to health FSAs.
Any arrangement under which an employer pays, or makes amounts available to pay or
reimburse, the cost of health coverage on a tax-favored basis is considered a group health
plan that must comply with the coverage reform provisions of the health care reform law,
including the prohibition of annual dollar limits on benefits and the requirement that non-
grandfathered plans cover certain preventive services with no cost-sharing requirements.
If an employer pays or reimburses health insurance premiums (including premiums for
individual health insurance) on an after-tax basis, that arrangement will not be considered
to be a group health plan that is subject to coverage reforms.
The agencies intend to modify previously issued regulations defining excepted benefits to
provide that EAP coverage is an excepted benefit (i.e., exempt from the coverage reforms)
so long as the EAP does not provide significant benefits in the nature of medical care or
The new agency guidance applies for plan years beginning on and after January 1, 2014, but may
be applied for all prior periods.
The information in this publication is not intended as legal or tax advice and has been prepared
solely for informational purposes. You may wish to consult your attorney or tax adviser
regarding issues raised in this publication.