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Paul Zimmerman
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Courts Read Network Adequacy Requirements into Federal Lactation Counseling Mandates

The ACA and federal regulations require health insurers and plans to cover lactation counseling without cost-sharing (deductibles and co-pays). Under the regulations, an insurer or plan can meet this obligation by either including “a provider” in its network who can provide the service, or by permitting its members to use an out-of-network provider free of any cost. In two recent cases, courts appear to be reading some level of network adequacy and disclosure requirements into the mandates for insurers and plans that take the in-network route. (Read More)

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The Payroll Audit Independent Determination (PAID) Program: Wage and Hour Amnesty for Employers

Attention employers: the Department of Labor has your back – at least on a six-month trial basis. The DOL has launched the Payroll Audit Independent Determination (PAID) program, a new nationwide initiative that seeks to facilitate the resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). (Read More)

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New Essential Health Benefits Rules Give Obamacare Plans More Flexibility As They Face Rising Competition

The Department of Health and Human Services (HHS) just issued its annual revision of the rules for Obamacare plans that are sold on the state Exchanges (Marketplaces). The rules give states and insurers more flexibility in determining what benefits these plans should offer. Likewise, they fix some nonsensical prior guidance from HHS that discouraged plans from providing special benefits to children, elders, women and the disabled. This flexibility is needed as Obamacare plans begin to compete with association and short-term health plans. (Read More)

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Is a New Federal Standard for Breach Notification on the Horizon?

In the wake of the recent announcement by Equifax that an additional 2.4 million consumers had personal information stolen as part of the company’s massive data breach in 2017, a light is being shined on related legislation currently pending in the United States House of Representatives. Indeed, lawmakers are once again trying to codify nationwide standards on breach notifications and how data is handled and stored. It appears to be an uphill battle. (Read More)

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Two Courts Reject § 1557 and Title VII Healthcare Discrimination Claims Against Insurance Companies Acting as Third-Party Administrators

In two recent decisions, courts have refused to hold insurers acting as third-party administrators (TPAs) liable under ACA § 1557 or Title VII for carrying out allegedly discriminatory terms of self-funded employer health plans. In both cases, the TPAs did not appear to have any role in setting the terms of the employer-sponsored plans, but only in approving and denying claims under their terms. (Read More)

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Spanish Speaking Employees Need Training in Español

The importance of providing Spanish-speaking employees with training in their native language cannot be overstated. The numbers compiled by the Department of Labor’s Bureau of Labor Statistics (BLS) bear this out: the Hispanic/Latino labor force in the United States was nearly 12.0 million in 1994, 19.3 million in 2004, 25.4 million in 2014, and projected to be 32.5 million by 2024 (or 20% of the entire workforce). The share of Hispanic/Latino workers is exponentially higher in states such as California, Colorado, Florida, New York and Texas. In fact, as of 2014, Hispanic/Latino employees made up 36.5% of the workforce in California, this according to the California Budget & Policy Center. It is not much of a stretch to presume that many of these workers are native Spanish speakers. (Read More)

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Social Media Influencers Who Pay . . . No Way

If your company promotes itself through social media with the help of influencers, then it is a participant in the influencer economy. But because influencers come with a price, you must consider if they are worth the money — and just how influential they truly are.

Companies spend mightily to attach themselves to online tastemakers and social media stars (those with impressive numbers of followers). These individuals — from actors and athletes to mom bloggers and teenage Instagram and Snapchat giants — leverage their booming popularity and social media presence in exchange for lucrative deals with brands. Need proof? An influencer with a million followers can earn upwards of $20,000 for a single promotional tweet. (Read More)

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The Oral Argument in NIFLA at the Supreme Court and Limits on Freedom of Conscience for Healthcare Providers in the States

Another episode in the never-to-be-ended disputes over freedom of conscience played out in the U.S. Supreme Court last Tuesday. At issue in National Institute of Family and Life Advocates (NIFLA) v. Becerra was whether California’s FACT Act could require licensed, religious pro-life crisis pregnancy centers to publish statements informing pregnant women about state-provided abortion services or unlicensed centers to post prominent notices disclosing their unlicensed status. Despite the religious elements of the dispute, the argument before the Supreme Court ignored almost any discussion of constitutional protections for religious liberty and focused on protections for speech. (Read More)

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Costco Takes Its Coffee with Cream and a Civil Penalty

The Federal Trade Commission doesn’t have a monopoly on consumer fraud claims – just ask the folks at Costco.

Recently, the District Attorney of Alameda County in California joined with 24 other DA’s in the state in settling a case against Costco Wholesale Corporation and JBR, Inc., a coffee company better known as San Francisco Bay Gourmet Coffee and the Rogers Family Company. Costco and JBR agreed to pay a total of $500,000 in civil penalties and costs stemming from untrue and misleading marketing claims made on plastic coffee pods sold by the companies. (Read More)

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Authorities Split on whether ACA Section 1557 Requires Hospital Staff to Use Pronouns and Terms Consistent with a Patient’s Gender Identity

Among the most controversial of HHS’s ACA Section 1557 regulations is its requirement that covered healthcare entities treat persons consistent with their gender identity. The regulations distinguish gender identity from biological sex, and define it as a person’s internal sense of gender, which can be male, female, neither or a combination of both. HHS’s regulations do not spell out what it means to treat persons consistent with their gender identity. But a voluntary resolution agreement that its Office for Civil Rights (OCR) reached with a hospital in 2015 required it to let patients register their sex and gender upon admission, and to train staff in “appropriate terminology to use when referring to transgender individuals.” Department of Education guidance issued around the same time was even more direct and stated that public schools must use pronouns consistent with a student’s gender identity. (Read More)