Welfare Benefit Plan ERISA News
October 2012

DOL Releases New FMLA Forms
The DOL has released new Family and Medical Leave Act (FMLA) forms to replace ones that carried an expiration date of December 31, 2011. The new forms will expire on February 28, 2015. Employers may use these forms or create their own versions. Unfortunately, the DOL only changed the expiration date; it did not fix some key deficiencies known to exist in the old forms, e.g., 1) Any reference to the additional FMLA rights provided under the 2010 amendments for military family leave and 2) Any reference to the "safe harbor" privacy language required under the Genetic Information Nondiscrimination Act of 2008 (GINA). For a broader explanation of the GINA safe harbor and links to the new forms, see this article in HR Specialist. For more information on FMLA, click the DOL web page FMLA.
The "HIPAA & ERISA Police" Are Here
Since the enactment of Health Information Technology for Economic and Clinical Health ("HITECH") Act in 2009, the Department of Health and Human Services ("HHS") has been exacting steep penalties from companies that do not comply with the HIPAA Privacy and Security Rules. Consider these three settlements: Recently, Massachusetts Eye and Ear Infirmary agreed to a $1.5 million settlement when an unencrypted laptop containing PHI of patients was stolen. In 2011, HHS imposed a $4.3 million penalty against Cignet Health of Prince George's County, Maryland for denying patients access to their medical records, failure to cooperate with HHS, and willful neglect to comply with the Privacy Rule. In the same month, Massachusetts General Hospital entered into a $1 million settlement with HHS when an employee left medical records of 192 patients on the subway.
The Employee Benefits Security Agency (EBSA) administers and enforces ERISA. Much of its 2012 budget includes additional staff to conduct audits. The DOL has estimated that three out of four plans they audited have had an ERISA violation. In 2011, the EBSA achieved $1.38 billion in monetary results, closed 3,472 civil investigations and 302 criminal investigations, received 25,020 DFVCP filings, and handled 233,780 individual inquiries and complaints. Source
Now is a good time for plan sponsors to review their benefit plan documentation to ensure it is in compliance and consistent with administrative practices.
ERISA Trivia
(Hint)The closing of which automobile manufacturer's plant and its inability to pay pension benefits increased the momentum for pension reform that ultimately led to the enactment of ERISA? Submit Your Answer
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