Hamilton Headlines
September 14, 2016

OSHA Tests New Program to Expedite Whistleblower Claims 

In an effort to speed up claims under the Occupational Safety and Health Administration's Whistleblower Protection Program, the Labor Department's San Francisco region has launched a new process, called the "Expedited Case Processing Pilot."  

The new process may halt certain whistleblower investigations at the complainant's request and issue findings for the department's Office of Administrative Law Judges to issue a final ruling.

Effective August 1, the pilot covers the agency's San Francisco region, which includes Arizona, California, Hawaii, Nevada, and the islands of American Samoa, CNMI, and Guam.

Barbara Goto, OSHA's regional administrator in San Francisco, said, "The ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job."

COBRA Notices May Include Extra Marketplace Information

The DOL recently clarified through a set of frequently asked questions (FAQs) that benefit plan administrators are allowed to include within the COBRA election notice extra information about the Marketplaces that goes beyond the model language.

The FAQs state that acceptable supplementary information for COBRA notices may include, among other points:
  • How to obtain assistance with enrollment (including special enrollment).
  • The availability of financial assistance.
  • Further information about Marketplace websites and contact information.
  • General information regarding particular products offered in the Marketplaces.
  • Other information that may help qualified beneficiaries choose between COBRA and other coverage options, including continuing on the employer's group plan.
In addition, "COBRA election notices may be tailored to particular groups like young adults aging out of dependent coverage on their parents' health plan," according to the FAQs. But "In all cases, they are required to be 'easily understood by the average plan participant' and, therefore, information should not be too lengthy or difficult to understand."

Though the Marketplace language isn't required, if employers amend their COBRA notice election forms to include ACA Marketplace coverage options, the amended forms must still meet all COBRA requirements.

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CMS Warns Against Social Media Postings Involving Nursing Home Residents
According to an August 5, 2016 memorandum from the CMS Survey and Certification Group, posting videos or photos of nursing home residents to social media sites may constitute mental abuse.  New guidance comes amid reports of nursing home employees using social media platforms to post humiliating and/or graphic pictures of residents.

The memo states treating a nursing home resident in any manner that does not uphold a resident's sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s). Federal nursing home regulations require that each nursing home provides care and services in a person-centered environment in which all individuals are treated as human beings.
Facilities should immediately update their abuse prevention policies and procedures and conduct appropriate in-services to ensure that staff is aware of these new standards. Surveyors will begin to look for such policies immediately going forward.

EEOC Issues Final Enforcement Guidance on Retaliation

On August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues.  This replaces its 1998 Compliance Manual section on retaliation. 

The new guidance explains topics such as:
  • Scope of employee activity protected by the law
  • Legal analysis to be used to determine if evidence supports a claim of retaliation
  • Remedies available for retaliation
  • Rules against interference with the exercise of rights under the ADA
  • Detailed examples of employer actions that may constitute retaliation
Allegations of retaliation now account for approximately 45 percent of all charges received by the EEOC, making retaliation the most frequently alleged basis for discrimination.

REMINDER: Medicare Part D Notices Due By October 14

In preparation for the Medicare fall open enrollment period, employers sponsoring group health plans that include prescription drug coverage are required to notify all Medicare-eligible individuals whether such coverage is creditable. 

Creditable coverage  means that the coverage is expected to pay, on average, as much as the standard Medicare prescription drug coverage.

Written disclosure notices to individuals must be provided annually by October 14, and at various other times as required under the law, to the following individuals:
  • Medicare-eligible active working individuals and their dependents (including a Medicare-eligible individual when he or she joins the plan);
  • Medicare-eligible COBRA individuals and their dependents;
  • Medicare-eligible disabled individuals covered under an employer's prescription drug plan; and
  • Any retirees and their dependents.

Additionally, employers are required to complete an  online disclosure to CMS to report the creditable coverage status of their prescription drug plans. T

his disclosure is also required annually, no later than 60 days from the beginning of a plan year, and at certain  other times.

2016 EEO-1 Survey
The Employer Information Report EEO-1 is required to be filed with the U.S. Equal Employment Opportunity Commission's EEO-1 Joint Reporting Committee.  The deadline for submitting and certifying is September 30, 2016.

To check if you should be filing or further instructions, go to EEO-1.

Please note that Hamilton Insurance does not provide legal advice, and this does not constitute advice of any kind for any 
particular situation. Instead, this is intended as non-comprehensive general information serving as a starting point for further 
discussion. Please contact your tax and/or legal advisors for information about how these issues affect you.  
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