Current Updates and Legal Developments

HHS AGENCY PROPOSES RULE TO STABILIZE INSURANCE MARKETPLACE

THE CENTERS FOR MEDICARE & MEDICAID SERVICES (CMS) issued a proposed rule aimed at stabilizing individual and small group health insurance markets in anticipation of Congress’ possible repeal and replacement of the Affordable Care Act. CMS, an agency within the Department of Health and Human Services, administers a number of health care–related programs, including Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), and the Health Insurance Marketplace. The proposed rule would make changes to special enrollment periods, the annual open enrollment period, guaranteed availability, network adequacy rules, essential community providers, and actuarial value requirements.

Specifically, the rule proposes (1) expanding pre-enrollment eligibility verification to those who enroll through special enrollment periods using the HealthCare.gov platform, (2) allowing insurers to collect premiums for unpaid coverage before enrolling the policyholder in the next year’s plan, (3) providing greater flexibility to insurers to provide patients with more coverage, (4) deferring to the states’ reviews of qualified health plans, (5) establishing a revised proposed timeline for the Qualified Health Plan certification and rate review process for 2018, and (6) shortening the open enrollment timeline for 2018 from Nov.1–Jan. 31 to Nov. 1–Dec. 15.

Dr. Patrick Conway, acting CMS administrator, said that the proposal “will take steps to stabilize the Marketplace, provide more flexibility to states and insurers, and give patients access to more coverage options.” The proposed changes “will help protect Americans enrolled in the individual and small group health insurance markets while future reforms are being debated,” he said.

The proposed rule can be accessed at https://www.federalregister.gov/documents/2017/02/17/2017-03027/patient-protection-andaffordable-care-act-market-stabilization.

-Lexis Practice Advisor Journal Staff

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RESEARCH PATH: Labor & Employment > Employee Benefits > Health and Welfare Plans > Articles > Affordable Care Act

TRUMP’S TWO-FOR-ONE PLAN F OR REGULATION REDUCTION

PRESIDENT TRUMP CONTINUES HIS PUSH TO REIN IN federal regulations. On January 30, he called the Dodd-Frank Act a disaster and signed an executive order (“Reducing Regulation and ontrolling Regulatory Costs”) that calls for a two-for-one regulatory rollback. The order comes on top of the regulatory freeze announced on Inauguration Day and President Trump’s remark a week later that “we think we can cut regulations 75%, maybe more.”

The executive order states that “it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The order sets forth a regulatory cap for Fiscal Year 2017 that states, “Unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”

It also directs the heads of all agencies “that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).”

Although the president said, “We’re going to be doing a big number on Dodd-Frank," the White House has reportedly clarified that the executive order does not apply to the Consumer Financial Protection Bureau (CFPB) and other federal bank regulators that are independent agencies.

Readers will recall, however, that the CFPB’s status as an independent agency could change under the PHH Corp. v. CFPB decision handed down on October 11 by the U.S. Court of Appeals for the D.C. Circuit. Stay tuned.

-Pratt’s Bank Law & Regulatory Report, Volume 51, No. 3

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RESEARCH PATH: Finance > Fundamentals of Financing Transactions > Regulations Affecting Credit > Articles > Other Regulatory Issues

TECH COMPANIES, PRIVACY GROUPS URGE HOUSE PASSAGE OF EMAIL PRIVACY ACT

A GROUP OF MORE THAN 60 TECH COMPANIES, CIVIL society organizations, and trade associations has asked the House of Representatives to act quickly to approve the Email Privacy Act (H.R. 387), which would amend the Electronics Communications Privacy Act (ECPA) by tightening warrant requirements for government access to digital content.

In a letter addressed to Rep. Bob Goodlatte (R. Va.), chairman of the House Judiciary Committee, and Rep. John Conyers (D. Mich.), the committee’s ranking member, the group said that the amendment “represents true bipartisan, commonsense reform on privacy.”

The bipartisan bill, which is being considered for the second time by the House, would do away with the ECPA’s “180-day rule,” which allows law enforcement to obtain access to emails without a warrant after 180 days, and would negate the Justice Department’s interpretation of the ECPA “that the act of opening an email removes it from warrant protection.”

The signatories, which include Google, Verizon, Yahoo, AOL, Facebook, and the American Civil Liberties Union, said that the bill “would ratify the Sixth Circuit’s decision in U.S. v. Warshak, which held that email content is protected by the Fourth Amendment and that law enforcement access requires a probable cause warrant.” The group expressed its pleasure that the bill does not exempt civil agencies from the warrant requirement, saying that such a provision “would have expanded government surveillance power and undermined the very purpose of the bill.”

The bill, sponsored by Rep. Kevin Yoder (R. Kan.) and Rep. Jared Polis (D. Colo.), was passed unanimously by the House in April and referred to the Senate Judiciary Committee but was not considered by the full Senate before the end of the 114th Congress.

-Lexis Practice Advisor Journal Staff

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RESEARCH PATH: Corporate Counsel > Confidentiality, Privacy and Data Security > Drafting Privacy Policies > Articles > Key Privacy Considerations

EEOC REVIEWS PUBLIC COMMENTS ON WORKPLACE HARASSMENT ENFORCEMENT GUIDANCE

THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) is reviewing public input on a proposed enforcement guidance for addressing harassment in the workplace. Public input was accepted through March 21 about the 75-page guidance, which sets forth the EEOC’s interpretation of the federal anti-harassment laws that it is charged with enforcing. The guidance focuses on the three components of a hostile work environment claim: whether the conduct at issue was based on the complainant’s legally protected status, whether the conduct was sufficiently severe or pervasive to create a hostile work environment, and whether there is a basis for holding the employer liable. The Commission noted that a June 2016 report issued by its Select Task Force on the Study of Harassment in the Workplace revealed that almost one-third of the approximately 90,000 charges it received in fiscal year 2015 included a workplace harassment allegation.

“This enforcement guidance is a companion piece to the Task Force Report,” the EEOC said. “The Task Force Report focuses on identifying ways to renew efforts to prevent harassment, and this enforcement guidance explains the legal standards for unlawful harassment and employer liability.”

The proposed guidance provides various examples of workplace behavior and indicates whether the conduct constitutes harassment under federal law. In addition, the document suggests proactive measures that employers can take to prevent harassment from occurring, including a commitment to creating and maintaining a culture of respect, adoption of a clear and comprehensive anti-harassment policy, institution of an effective and accessible harassment complaint system, and effective harassment training. The proposed guidance is posted at https://www.regulations.gov/ document?D=EEOC-2016-0009-0001. All input will be posted publicly at www.regulations.gov. After a review of the input, the EEOC will consider making revisions before finalizing the guidance.

-Lexis Practice Advisor Journal Staff

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RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Articles > Harassment

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