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HR Matters
HR Matters - February 2007 - Volume XI, Issue 118
February 28, 2007
LABOR & EMPLOYMENT NEWSNew Employee Education Requirements Regarding the Federal False Claims Act.. In our June, 2006 edition of HR Matters , we informed you about the new requirements regarding the federal False Claims Act (FCA) for companies who receive or make annual payments of more than $5 million under Medicaid. Those requirements, which became effective on January 1, 2007, require companies to have written employee and vendor policies and procedures regarding the FCA. The requirements include providing employees with a detailed explanation of whistleblower rights, administrative remedies, and state laws pertaining to civil or criminal penalties for false claims. Also, companies must provide an explanation of their policies and procedures for detecting and preventing fraud, waste, and abuse. Companies with employee handbooks are expected to include information regarding these new requirements in their handbooks. The federal Center for Medicare and Medicaid Services (CMS) is expected to issue guidance on this topic for employers in the near future. For more information, or assistance with compliance in this area, please contact a GH&R Labor & Employment attorney.
IMMIGRATION NEWS
The H-1B season for fiscal year 2008 is quickly approaching. As you may recall, last year, all H-1Bs for fiscal year 2007 were exhausted by May 26, 2006. We are projecting that this year’s cap will be reached very quickly. With that in mind, we recommend that you start planning for H-1B filing if any of the below scenarios apply:
(1) Your company plans on making an off-shore hire between now and October 1, 2008;
(2) If any of your L-1B employees are close to exhausting their 5 years of eligibility;
(3) If your company has any students/interns working for them and you would like to continue to employ them after expiration of the intern/coop;
(4) You have an employee that needs a change of status to an H1-B; or
(5) You have a TN employee that may want to process a green card and needs the benefits of an H-1B to allow the green card process to be accomplished easier.
The first date that the USCIS will accept filings for an H-1B is April 2, 2007. Our goal is to have all potential H-1B filings in our office before April 2, 2007 in order to beat the H-1B cap. Please contact us so that we can get things moving quickly.
WORKPLACE HEALTH & SAFETY NEWS
Light-Duty Job Offers Must Specifically Identify Restrictions. Recently, the Ohio Supreme Court clarified guidelines for making light-duty job offers to injured workers. A worker at an extended-care facility sprained her lumbar region, hip and thigh, while lifting a patient. The doctor who performed an independent medical exam (IME) for the employer authorized the worker to return to light duty, but he failed to accept all of the allowed conditions in the claim. The employer offered the injured worker a light-duty job based on the restrictions contained in the IME. When the injured worker refused the offer, the employer filed a motion to terminate her temporary total disability benefits. After the Industrial Commission terminated her benefits, the injured worker filed a court appeal and won. Then the employer appealed the matter to the Ohio Supreme Court, which ruled in favor of the injured worker because the job offer’s description of duties was not detailed enough to allow the Court to determine if the job complied with the worker’s restrictions based on all of her allowed conditions. To be acceptable, a job offer must be very specific and clearly identify the demands of the offered job. One approach would be to draft a job offer that lists: (1) all of the worker’s allowed conditions (even ones that have been resolved); (2) each task in the light-duty job with sufficient detail to enable a hearing officer or a court to determine if each complies with the worker’s restrictions; (3) the percentage of time that will be spent working on the job; (4) the time restrictions the physician has assigned; and (5) any other pertinent restrictions. For assistance in this area, please contact a GH&R workers’ compensation attorney. (State ex rel. Ganu v. Willowbrook Christian Communities)
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Private Letter Ruling on Health Savings Accounts. Only individuals who are covered by a high-deductible health plan (HDHP) and no other health plan are eligible to contribute to a Health Savings Account (HSA). However, some types of coverage are permitted and will not prevent an individual from qualifying to make HSA contributions. The IRS recently issued a Private Letter Ruling (PLR) addressing several insurance policies and the related riders along with optional benefits to determine if they were permissible under an HSA. The employer requesting the ruling offers a HDHP, as well as the right to purchase certain insurance contracts. The IRS reviewed each policy, rider and optional benefit to determine whether each was permitted coverage, permitted insurance, or preventive care, which are allowed for HSA eligibility. The IRS determined that some fell within the permissible categories but some did not. For example, a hospitalization policy was permitted but various riders under the policy for ambulance transportation, surgery and anesthesia were impermissible, presumably because they fell outside the “fixed amount per day” permitted insurance. However, the IRS ruled that policies, riders and optional benefits providing similar services for a specific disease or illness were permissible. Ultimately, the PLR ruling stated that any individual covered under any impermissible policy, rider, or optional benefit regardless of whether the individual also had permissible coverage would not be HSA eligible.
Protected Health Information. The United States Department of Health and Human Services (HHS) has recently issued guidance on the protection of electronic protected health information (PHI) that is stored or accessed outside of a covered entity’s physical control. Examples include information accessible on laptops, home computers, PDAs, Smart Phones, flash drives and wireless connections. HHS stated covered entities (including health plans) should only allow offsite storage or access to PHI when “clearly determined necessary” and only if “great rigor has been taken to ensure that policies, procedures and workforce training have been effectively deployed.” The guidance addresses three areas of main concern: access, storage and transmission. Covered entities should train their workforces specifically addressing risks associated with remote access with clear instructions for accessing, storing and transmitting electronic PHI. HHS suggests adopting policies that prohibit leaving devices or media in unattended cars, transmitting over open networks or downloading to public computers. HHS also suggest using encryption technology or biometric security measures to reduce risks if a laptop or portable device is lost or stolen. There should be policies that provide sanctions to address inappropriate handling of electronic PHI, including procedures and consequences of noncompliance.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.