Back in the day when I was counsel for a Washington Legislature House Committee, I was asked by a non-profit to put together an outline to help them pursue legislative change. I ran across that outline in my regular purge of files. It seems quaint but still relevant. I share it for the benefit of…
The United States criminal code contains a wide range of punishable offenses for taking money that does not belong to you. For those engaged in activities relating to the delivery and payment for health care services, health care fraud stands out. Health care practitioners commit fraud by misstating the actual amount for service, up-coding by…
Once again, a Washington Appellate Court has ruled that an insurer’s blanket denial of payment of a medical bill that exceeds a predetermined amount constitutes an unfair practice in violation of the state Consumer Protection Act. [Stan Schiff v Liberty Mutual Fire Insurance Company, No. 82554-2-1 Decided 11/28/2022 footnote 8 at 12] “Insurers must make…
Last year, Congress directed the Secretary of Health and Human Services (HHS) to take into consideration efforts by organizations subject to HIPAA security standards (“covered entities” and “business associates”) to implement “recognized security practices” whenever HHS determines fines and other remedies for HIPAA security violations. …the Secretary shall consider whether the covered entity or business…
When a traditional marketplace changes and we save money, we cheer it as “disruptive innovation.” That was one of the big ideas behind the Affordable Care Act (ACA) healthcare marketplace and Exchanges like Washington’s Healthplanfinder. Buy direct and save; avoid sales commissions. Be your own insurance broker or ask a “navigator.” But, as the Harvard…
On August 9, 2021, Washington Governor Inslee issued Proclamation 21-14 requiring certain classes of individuals to obtain a COVID-19 vaccination by October 18, 2021. Technically, the order mandates a vaccine in reverse by prohibiting not having a vaccination. Prohibitions. This order prohibits the following: Any Worker from engaging in work for a State Agency after…
While the U.S. House of Representatives was busy impeaching President Trump for the second time, the President was busy. Lost in news of the tumult of violence in the Capitol was the White House announcement of the signing of legislation breaking a pillar of insurance law – the McCarran-Ferguson Act of 1945. Health insurers, including…
The Washington State Attorney General has answered a question of which types of health care professionals can “flock together” to form a multidisciplinary professional limited liability company. The answer – every profession noted in the state statute other than physical and occupational therapists who must flock amongst themselves. The question of who can own a…
Government response to the Coronavirus has included a wide range of emergency measures governing health plan administration. Some of these measures address dislocations caused by sudden change in employment status while others address administration of benefits for employees marooned at home. The fast pace of change wrecks the predictability required for health care benefits tied…
Catastrophe reveals character and exposes fraud. From one shut-in to another, I’ve quickly learned from the flood of calls and “chats” that some clients rush to the aid of customers and others rush to the bunkers. A reckoning will come later when I evaluate my own contributions and assess the decent use of my time…
The Office of the National Coordinator for Health Information Technology (ONC), in collaboration with the HHS Office for Civil Rights (OCR) just posted an updated Windows only version of its HIPAA risk assessment tool (SRA). I know; lots of exciting acronyms, abbreviations, and labels! You can download the new software on the government’s Health IT…
The Washington Insurance Commissioner (OIC) has proposed new rules to codify current procedures for filing large group health plans for bona fide associations. Under current requirements, the agency provides instructions for filing association health plans qualifying as a single large group plan under ERISA rather than rules governing these filings. The OIC requires that insurance…
On June 5th, the Department of Labor (DOL) and defendants in the Associated Industries of the Inland Northwest (AIIN) ERISA litigation reached a settlement and consent order which was submitted to Eastern Washington Chief United States District Court Judge Thomas Rice. The proposed settlement ends two years of litigation over DOL alleged violations of ERISA’s…
Go ahead, keep it up and see if I bite. On Monday, the United States Department of Labor (DOL) issued an enforcement statement addressing the U.S. District Court decision invalidating DOL rules liberalizing bona fide AHP standards. Essentially, DOL will not bring an action against these newer AHPs until the end of the current plan…
On Thursday, a federal court judge for the District of Columbia struck down the new Department of Labor’s (DOL) association health plan (AHP) rules declaring, “these provisions are unlawful and must be set aside…[and the] bona fide association and working owner provisions are therefore vacated.” As an attorney, I cringe thinking about fellow attorneys standing…
The Washington Insurance Commissioner (OIC) adopted emergency rules governing association health plans (AHPs) created under the recently liberalized Department of Labor (DOL) standards for bona fide AHPs. The liberalized standards allow loosely affiliated small businesses to become eligible for treatment as a large group plan under ERISA. Under the DOL regulations which took effect for…
I know it sounds crazy, but it did happen. This past Friday, President Trump issued an executive order that extends an Obama policy initiative to help small employers. In 2017, the Obama administration explored expansion of retirement plans for small businesses by proposing expansion of multiple employer plans for pensions (MEPs). In the Department of…
They said they would and they did. Twelve states filed a lawsuit against the Department of Labor (DOL) challenging DOL regulations liberalizing standards for creation and operation of Association Health Plans (AHPs). The complaint mirrors objections and comments submitted to DOL by a group of seventeen state attorneys general before the final rules were adopted.…
O.K., deep breath…slow down…no need to hyper-ventilate. Even if association health plans sold to small employers won’t include all of the “essential health benefits” mandated by the Affordable Care Act (ACA), that doesn’t mean the plans can be designed free from any regulatory constraints. Washington State association health plans will not suddenly appear on the…
The U.S. Department of Labor (DOL) issued final regulations liberalizing standards for association health plans (AHPs) that DOL will recognize as single, large group health plans. The final regulations permit a more tenuous connection among participating employers and allow sole proprietors without employees to be considered employers. But the biggest change is the creation of…
In my review of the Department of Labor’s (DOL) proposed rules liberalizing association health plan (AHP) standards, I promised future articles exploring legal and other issues related to the rules. But a flood of public comments and analysis from smart people leaves me with a different task – attempting to distill these comments and explain…
Bless their hearts, the U.S. Department of Labor (DOL) has issued proposed regulations to improve access to association health plan markets. Their two biggest ideas for improvement are to force existing bona fide associations to stop risk rating health plan coverage at the employer level and to start counting individuals as groups. Where to begin……
Following the Spokane federal court’s partial grant of the Department of Labor’s (DOL) motion to strike Associated Industries defenses and arguments against the DOL motion, the association plan ERISA case heads toward mediation and potential settlement. “At the request of the parties, the Court is referring this matter to Senior Judge Lonny R. Suko for…
President Trump sure has a knack for causing panic. His executive order to loosen standards for association health plans surely has brought about the “end of days.” After watching television coverage and reading interviews with health care experts, the end times can’t come soon enough. I need relief. Nearly 75% of the reporting to some…
Today President Trump signed an Executive Order with significant implications to both Obamacare and health insurance markets in general. Here are highlights from the Order which will be reviewed in more detail later. Loosen traditional DOL interpretations of “bona fide” association to permit more diverse associations with less in common among the employers. “Sec. 2.…
Warnings work when people pay attention; but, they often lose focus when they’re staring at money. No matter how many times association health plans (AHPs) have been warned about the dangers of using health plan contributions to compensate the association, AHPs walk right to the edge of the cliff and fall off. If you have…
America is literally addicted to social media. Social media platforms are intentionally engineered to provide the same addictive gratification as gambling or even drug use. More and more people are logging in to get a fleeting dose of euphoria from the latest like on their post or selfie. Some studies have calculated that the average…
Last week, Judge Rice denied Associated Industries Management Services and Associated Employers Trust motion to dismiss the Department of Labor lawsuit alleging breach of fiduciary duties under ERISA. The federal court later accepted the parties agreed extension of time required for Associated Industries to file an answer to the DOL complaint. The defendants will have until…
In June, the Washington Insurance Commissioner adopted new rules creating uniform standards for health plan procedures for prior authorization of health care services. The new rules take effect for health plans and stand-alone dental and vision plans issued or renewed after January 1, 2018 with rules governing online prior authorization taking effect November 1, 2019.…
Connected cars talk to us, the internet, wireless devices, other connected cars, and soon they will talk to roadway infrastructure. Even worse, they’re listening. In an ever-growing internet of things, connected cars are like gigantic Amazon Echos – listening to us speak and collecting data. Often this data is mundane, but, as people become more…
Yesterday, the Department of Labor (DOL) responded to Associated Employers Health and Welfare Trust’s (AET) motion to dismiss the ERISA fiduciary case against the Trust, Associated Industries of the Inland Northwest and Associated Industries Management Services (AIMS). Recall that AET and the other defendants argued that the ERISA lawsuit by DOL should be dismissed because…
An alert reader of the Regulatory Stew observed that the federal litigation concerning the Associated Employers Trust doesn’t mesh with some of the insurance regulatory filings made with the Washington Office of the Insurance Commissioner (OIC). Here’s how a 2010 dental plan filed with the OIC described the role of Associated Employers Trust: Employer Identification…
In February, the Department of Labor (DOL) sued Associated Industries of the Inland Northwest, Associated Employers Health and Welfare Trust, Associated Industries Management Service, Inc. (AIMS), and several individuals responsible for managing the Trust. DOL alleges “fiduciary breaches, prohibited transactions, and knowing participation in same.” The thirty-one page civil suit against the Association and Trust…
The Center for Children’s Digestive Health (CCDH) signed over a $31,000 check to the Department of Health and Human Services (HHS) to settle HIPAA violations. CCDH freely provided nearly 11,000 records containing protected health information (PHI) to the company FileFax, Inc. for long-term storage. The issue is not that CCDH transferred the records but that…
CardioNet calls itself the “leading supplier of Mobile Cardiac Outpatient Telemetry.” In other words, they sell wireless devices that help monitor heart conditions in patients. Now CardioNet is leading the way in multi-million dollar settlements with OCR for violating HIPAA privacy and security rules. On April 24, 2017 OCR announced the $2.5 million settlement. In…
It’s been a tough few years for health insurance professionals. But, it’s been toughest on families and small businesses. Regulatory and political confusion grows with each passing day. Another mother with a sick child wilts from the double-talk, back-tracking, and double-cross – and that’s just her health plan. She must still suffer the hollow promise…
Colorado based Metro Community Provider Network (MCPN) may just be the victim of the most expensive phishing attack on record. MCPN did not lose their money to the attackers but rather is writing a $400,000 check to the Office for Civil Rights (OCR) for the breach that resulted. This amount would likely have been higher…
In a loss deeply felt by grown-ups, the “Greatest Show on Earth” from Ringling Bros. and Barnum & Bailey will close forever in May. The Show featured a three-ring circus that overwhelmed and forced us to choose which of the simultaneous acts to watch. In choosing, we often missed something more exciting in another ring.…
On February 24th, the United States Department of Labor (DOL) sued Associated Industries of the Inland Northwest, Associated Employers Health and Welfare Trust, Associated Industries Management Service, Inc. (AIMS), and several individuals responsible for managing the Trust. DOL alleges “fiduciary breaches, prohibited transactions, and knowing participation in same.” The thirty-one page civil suit against the…
In December, the Washington State Insurance Commissioner ordered Zenefits to charge a market price for “use of its online, cloud-based, software platform that integrates the administration of human resources, payroll, and employee benefits.” The Commissioner found that “free access to valuable software functions” constituted an illegal inducement to purchase insurance. Competing insurance brokers complained to the Commissioner that Zenefits’…
Regulators never take a holiday, especially in December when giving seems so right. Washington D.C. and Washington State have given new gifts to unwrap throughout the coming year. On December 16th, the Center for Consumer Information and Insurance Oversight (CCIIO), a subsidiary of the conglomerate Centers for Medicare & Medicaid Services of the United Stated…
With the election of Donald Trump and retention of a Republican Congress, “Obamacare” dies. But “repeal and replace” simply means that Congress will repeal and Washington State will replace. Sure the money will be gone; but, the rules won’t change. Instead, we face the tedious, expensive, and confusing process of revising insurance forms and processes…
I’ve always admired the modesty of regulatory agencies and their polite expression of force. You might be pleased to learn that the Department of Labor (DOL) just issued interim final rules “to adjust the amounts of civil penalties assessed or enforced in its regulations.” Of course, if you understand official language, you know that the…
Business Associates who fail to conduct health information risk assessments and adopt required security policies and procedures face a growing threat of discovery and fines. Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS) got more than a prayerful penance after violating HIPAA rules. The $650,000 fine imposed by HHS arose from the reported theft of a CHCS issued, unencrypted…
Don’t show me anything, don’t send me anything, don’t even speak to me. It’s the only way I can think of to avoid the growing liabilities associated with failure to secure personal information. Recent guidance from federal HIPAA regulators makes information security optional for patients the law was written to protect. Before you wander off, information…
This past legislative session, the Washington House of Representatives considered regulation of third party administrators (TPAs) as recommended by the state Insurance Commissioner. After some confusion over what the Commissioner intended and what should be amended, the bill died a quiet death in committee. Policymakers quickly discovered that TPA regulation had become a surrogate for indirectly addressing…
Finding, reading, and understanding the thousands of regulations that apply to health plans can drive a sane person to drink Flint, Michigan water. But not me. My sanity has already been questioned given that I intentionally spent a lot of money to go to school so I could learn the discipline of memorizing convoluted regulations…
Words matter. The meaning and use of words matter even more. That’s why discrimination can be a great thing – if you’re talking about insurance. Why? For one reason, folks who are careless should pay more for insurance than folks who are careful. Insurers don’t care why folks are careless; insurers want to be “discriminatory”…
President Obama surprised many folks today by proposing to allow small employers and the self-employed to form multiple employer plans without regard to the “common bond” standard required by the Department of Labor. The elimination of the “common bond” requirement would eliminate one of the highest hurdles to the creation of group benefit programs for…
And now for something completely different. Since 2004, Washington State has required all self-funded Multiple Employer Welfare Arrangements (MEWAs) to obtain a certificate of authority to conduct business in the state. The statute imposes strict standards of eligibility and detours from federal ERISA interpretations of “bona fide association” with its own unique statutory definition: “Bona…
The Washington Insurance Commissioner has requested legislation for registration of third party administrators to protect consumers. Third party administrators (TPAs) come in all shapes and sizes and just as many flavors. Insurers typically provide most services for administration of its own health plans. Many Insurers also sell administrative services to self-funded plans which would make…
The ranking member of the Washington State House Health Care Committee, Representative Joe Schmick, read my recent association health plan (AHP) post and shared the Insurance Commissioner’s letter explaining the agency’s recent actions. In his letter, the Commissioner addresses the administrative law judge’s decision disapproving the agency’s rating requirements. Disagreement over bona fide status was…
When I jokingly posted my “Ground Hog’s Day” video” here two years ago, I had no idea how depressingly accurate that joke would become. Our experience with federal health care reform has mirrored past attempts at reform through regulation. As I noted here when the Affordable Care Act was signed, it’s not the absence of…
The Washington Insurance Commissioner’s Office (OIC) responded to my public disclosure request and released the settlement agreement signed by the Business Health Trusts (BHT) and Commissioner Kreidler on September 28, 2015. The Agreement includes two exhibits. Exhibit A which alphabetically lists employers in each of the 13 different associations comprising BHT and Exhibit B which…
Many folks have asked for explanations and guidance on the creation or continuation of association health plans (AHPs) in Washington State. The tortured history of AHP regulation in this state defies any imposition of rational thought, let alone legal explanation. Here’s one example that you can mull over while you’re parked on the interstate. Just…
If I say that it’s change that I believe in, can I take a break from change – any change? The small employer health insurance market is still waiting to discover the contours of the small group health plans recently approved for sale by business and professional associations. Now we can also push reset on the definition of “small group.”…
Following a still unreleased settlement between the Business Health Trusts (BHT) and the Washington Insurance Commissioner (OIC), BHT attorneys withdrew the remaining administrative and federal court actions challenging the OIC denial of BHT’s “bona fide” association status under ERISA. The withdraw of the administrative appeals can be found here and withdraw of the Oregon federal court…
In my last update on the association health plan litigation, I wondered how the Seattle federal judge might view the Business Health Trusts argument that the trusts are “bona fide” large employer association plans under ERISA. We’ll never know. Yesterday, the Seattle federal judge signed a Stipulated Order of Dismissal ending the case. The order is short on…
If you thought buying and selling association health plans constituted risky business, consider how risky Moda viewed the business. Last October, Moda Health told the attorney for various associations insured by Moda that the insurer would continue to provide large group coverage to the associations only if the Department of Labor or a court found…
Another month, another stack of paper. As expected, the lawyers representing association health plans (AHP) had something to say about the Insurance Commissioner’s request for a delay in providing briefs in the remaining AHP administrative law cases. For those looking for some light summer reading (relax, these are short responses), here are the reactions to…
The Washington Insurance Commissioner has filed a request for a postponement in the remaining legal challenges to the Commissioner’s denial of association health plan rates. The agency will regroup after administrative law Judge Finkle ruled that the Commissioner had no authority to demand that association health plans be rated for the association as a whole rather…
After three special sessions, the Washington State Legislature has concluded its work. Below you will find a table of bills (literally and figuratively) adopted by the Legislature with a focus on legislation affecting health plans and health carriers. Enjoy contemplating the new policies and standards because you won’t have long to savor them before implementing rules appear. 2015…
On July 1st, administrative law Judge Finkle granted summary judgment to Cambia, the Master Builders Association (MBA Trust), Building Industry Association of Washington (BIAW Trust), and Northwest Marine Trade Association (NMTA Trust). The judge’s ruling permits an association qualifying as a bona fide employer health plan under ERISA to calculate and charge separate health plan rates…
Legal Actions Challenging Insurance Commissioner Disapproval of AHP Plans (06/17/2015) Plaintiff / Case Number Attorney for Plaintiff AHP Insurance Company Status Business Health Trust (AHPs) v. Mike Kreidler, Insurance Commissioner Seattle Federal Court Judge Lasnik Case #2:14-CV-01918 Richard Birmingham,Christine Hawkins, Davis Wright Tremaine Premera Plaintiff reply to defendant in support of plaintiff motion for summary…
The Washington Insurance Commissioner (OIC) stepped up its game and offered its clearest explanation yet as to why the OIC rejected the Seattle Chamber of Commerce association health plan reorganization. On June 1st, the OIC responded to the Business Health Trusts (BHT) motion for summary judgment in Seattle federal court, concluding: “Plaintiffs lack standing, and…
In 2007, a Spokane superior court judge ruled that the Insurance Commissioner (OIC) could not ignore state law exempting association health plans (AHPs) from the Washington State community rating law. Using HIPAA as an excuse, the OIC had argued that associations could not charge employer members of the AHP different rates. Instead, the Commissioner argued that an association had to…
On May 19th at 3:29 P.M., the Washington Insurance Commissioner (OIC) filed a notice that the OIC would be considering the adoption of a rule to select a new Essential Health Benefits “benchmark plan” for the 2017 health plan year. The public was informed in the notice that comments could be submitted to the OIC…
Attorneys for the Business Health Trust (BHT) have filed a motion for summary judgment against the Washington Insurance Commissioner (OIC). The Seattle federal court case has plodded on since early January when the court denied the BHT request for a temporary restraining order against the OIC. These and related federal proceedings have been covered here and here. Although…
On Monday (5/18), the OIC added new documents to defend its disapproval of the Washington Counties Insurance Fund (WCIF) health plan rates. In a declaration from staff counsel, the OIC supplied two letters – one from the state Attorney General’s office and one from Teresa Miller from HHS overseeing health plan market reforms. Both documents…
Yikes! The number of lawyers and powerful law firms arguing for association health plan clients continue to swamp the Insurance Commissioner’s Office (OIC). Legal pleadings related to association health plans pour into Olympia at a fairly quick pace now. On May 6th, Stoel Rives, Perkins Coie, and Kutscher, Hereford, etc. filed a summary judgment motion on behalf of…
On April 29th, the Washington Insurance Commissioner (OIC) responded to the Washington Counties Insurance Fund (WCIF) challenge of the OIC’s disapproval of the WCIF 2014 health plans. Although WCIF qualifies as a bona fide association (so says the Commissioner), the rates filed with the agency violated the law as the OIC understands it by establishing…
Last week when I wrote about associations and insurers challenging the Washington Insurance Commissioner’s (OIC) disapproval of rates for bona fide association plans, Premera was conspicuously absent. That left the Washington Counties Insurance Fund (WCIF) at risk of not even getting a hearing. Why? Because Premera had not challenged the WCIF rate disapproval. The administrative law judge…
The Washington Office of the Insurance Commissioner (OIC) has updated its lists of 2014 and 2015 association health plans approved and disapproved. The charts break out filed plans into four categories – approved; disapproved because the association is not “bona fide”; disapproved because the rates fail to conform to the new AHP rate rules; and…
“Delay is the deadliest form of denial.“ Cyril Northcote Parkinson famously developed a mathematical formula demonstrating little or no relationship between a regulatory task and the size of the staff assigned to accomplish the task. “Parkinson’s Law” has morphed into the well known adage that “work expands to fill the time available for its completion.” Parkinson’s observation about bureaucratic…
After years of confusion and drift, the Insurance Commissioner’s Office (OIC) has begun a more transparent process of sorting out the winners and losers in the Washington association health plan market. Change has come quickly in the past week beginning March 5th with the Association of Washington Business withdraw of their demand for hearing challenging the…
On February 13, Judge George Finkle (Ret.), presiding officer in the Business Health Trust administrative action against the Insurance Commissioner ruled: “BHT is not entitled to a hearing or to an automatic stay under RCW 48.04.020(1). I do not grant a discretionary stay under RCW 48.04.020(2). This Order is without prejudice to BHT’s renewed Demand…
Last Friday the 6th, attorneys representing the 13 Seattle Chamber association health plan trusts (BHT) made a course correction in their action against the Washington Insurance Commissioner (OIC). Even more interesting, BHT lead attorney Richard J. Birmingham filed a declaration that explains some of the oddities of the case. In the BHT “reply in support of…
On February 2nd, the Washington Insurance Commissioner’s office (OIC) responded to the Business Health Trust (BHT) request for an injunction against the OIC. BHT and the other association plans represented are trying to prevent the OIC from disapproving large group health plans for the associations. The response consists of the agency’s arguments and supporting declarations from…
Because sometimes the obvious is not – a dental or vision plan is not a “health plan” as defined under federal health care reform or under Washington insurance law. These plans are often referenced in rule as “excepted benefits,” e.g., excepted from the definition of “health plan.” Consequently, those who fear the regulatory “reaper” should relax and stop…
Joining the litigation fest, on January 13th, the Association of Washington Business (AWB) demanded a hearing to prevent the Washington Insurance Commissioner (OIC) from disapproving health plans that its insurer Premera Blue Cross had not yet even filed for review. Essentially, AWB demands a hearing just in case the OIC disapproves the AWB HealthChoice plans:…
On Friday afternoon (1/23/2015), federal district court Judge Robert Lasnik denied the Business Health Trust and thirteen other participating trusts a temporary restraining order (TRO) against Insurance Commissioner Mike Kreidler. The Trusts, insured by Premera, sought the TRO to prevent the Commissioner from issuing a letter like the one issued to the Moda insured trusts [see previous article]. The…