From a report by the National Association for the Advancement of O&P
The Institute of Medicine (IOM) today released a comprehensive report on the essential health benefits ("EHB") package that small group and individual market health plans will have to cover beginning in 2014 under the Patient Protection and Affordable Care Act ("PPACA"). The report was commissioned by the HHS Secretary to advise her on major issues involving essential benefits. The key question for the O&P profession is whether O&P care will be considered "essential" when the Secretary issues a proposed rule later this year.
The report offers a mixed bag but, overall, it is fairly favorable from an O&P perspective. First, the IOM did not specifically recommend a standard benefit package. Instead, IOM focused on the process the Secretary should use in determining the contexts of the package. Key take-away recommendations of the IOM include the following:
• The HHS Secretary should start with the average health plan offered by small employers (as opposed to large employers whose benefit packages are usually more generous) and build on the contents of the package in future years. (Importantly, a coverage analysis commissioned by AOPA revealed that there is not much difference in the scope of O&P coverage between the typical small employer and the typical large employer (between 70% and 75%, respectively);
• Once the contents of a typical small employer package are identified, the Secretary should look to the PPACA-mandated categories of benefits to ensure they are covered, including "rehabilitation and habilitation services and devices." It is NAAOP's belief that O&P care is considered covered under this category of benefits;
• Other provisions of the PPACA regarding nondiscrimination against any patient group should then be considered; and, finally;
• The Secretary should determine an actuarial number that estimates the typical cost of a small employer plan and manage the covered benefits to that estimate (in order to ensure the plan is affordable and, therefore, leads to the maximum number of people actually being able to afford new insurance coverage).
In addition, the IOM recommends that HHS establish a National Benefits Advisory Council to assist the Secretary in updating the contents of the EHB package in future years with a heavy reliance on evidence based medicine, but fully considering other factors such as serving the diverse needs of patient populations.
NAAOP will be making our views on the importance of O&P coverage known to the HHS Secretary in a variety of ways in the coming weeks and months.
The report offers a mixed bag but, overall, it is fairly favorable from an O&P perspective. First, the IOM did not specifically recommend a standard benefit package. Instead, IOM focused on the process the Secretary should use in determining the contexts of the package. Key take-away recommendations of the IOM include the following:
• The HHS Secretary should start with the average health plan offered by small employers (as opposed to large employers whose benefit packages are usually more generous) and build on the contents of the package in future years. (Importantly, a coverage analysis commissioned by AOPA revealed that there is not much difference in the scope of O&P coverage between the typical small employer and the typical large employer (between 70% and 75%, respectively);
• Once the contents of a typical small employer package are identified, the Secretary should look to the PPACA-mandated categories of benefits to ensure they are covered, including "rehabilitation and habilitation services and devices." It is NAAOP's belief that O&P care is considered covered under this category of benefits;
• Other provisions of the PPACA regarding nondiscrimination against any patient group should then be considered; and, finally;
• The Secretary should determine an actuarial number that estimates the typical cost of a small employer plan and manage the covered benefits to that estimate (in order to ensure the plan is affordable and, therefore, leads to the maximum number of people actually being able to afford new insurance coverage).
In addition, the IOM recommends that HHS establish a National Benefits Advisory Council to assist the Secretary in updating the contents of the EHB package in future years with a heavy reliance on evidence based medicine, but fully considering other factors such as serving the diverse needs of patient populations.
NAAOP will be making our views on the importance of O&P coverage known to the HHS Secretary in a variety of ways in the coming weeks and months.
Legislative News from the 2011 Session
Alabama law 2011-553 was passed by the Alabama
legislature and signed by Governor Bentley. This bill relates to the
Alabama Board of License for Orthotis and Prothotist. Several changes
were made in the law that we will go over in the next newsletter. The
Board will begin rule making on Theraputic Shoe Fitters as one of the
areas now regulated.
The Medicaid budget for O & P was cut some and our medicaid committee will work with ;the agency to allow as much payment as can be done. We will keep you updated on this. The Medicaid agency and our committee will meet in August to tackle this.
Bentley signed the new immigration legislation this week. While the 72 page bill has broad impact on all sectors of government, the portions of greatest importance to employers are as follows:
·Applies to All Employers - All public and private employers regardless of size are prohibited from hiring or continuing to employ unauthorized aliens in Alabama.
·Use of E-Verify - All Alabama employers are required to enroll and use E-Verify no later than April 1, 2012. All business entities that receive any state contract, grant, or incentive must enroll and use E-Verify a few months earlier - no later than January 1, 2012. There is a safe harbor for usage of E-Verify because all employers using E-Verify are deemed not to have knowingly hired or employed any unauthorized alien. Employers must be prepared to prove that they used E-Verify on the employee in question.
·E-Verify for Small Employers - Employers with 25 or fewer employees can use the Alabama Department of Homeland Security to run its E-Verify checks for free. This is designed to allow small employers who may not have internet access to still comply with the Act.
·Prohibitions on Employees - The Act makes it unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor.
·Penalties for Violation - Penalties for violations are stiff. Upon a first violation a court can order the employer to terminate the employment of the subject employee and any state contracts can be terminated. The employer is put on a three year probationary period during which it must file quarterly reports with the local district attorney listing each new employee hired. The employer must also file a sworn affidavit with the district attorney within three days of the court order stating that it has terminated the employment of all unauthorized aliens and will not continue to employ unauthorized aliens. The business license can also be suspended for up to 10 days at the location of the violation and reinstatement of the license requires enrolling in E-Verify and an affidavit verifying compliance with the Act. Upon a second violation of the Act the business license of the location of the violation is permanently revoked. Upon a third violation, all business licenses of the employer throughout the state are permanently revoked effectively shutting down the business' operations within the State of Alabama. Failure of a public agency to suspend a business license as required by the Act is itself a violation subjecting the agency to penalties.
·Requirements for Contractors and Subcontractors with Government Contracts - As a condition to receiving a contract, grant, or incentive by the state or local government, contractors and subcontractors must attest by sworn affidavit that they have not knowingly employed, hired, or continued to employ any unauthorized alien. The business must also provide documentation establishing that it is enrolled in the E-Verify program. We are researching to see if this applies to those receiving medicaid payments.
·Lawsuit Immunity - The Act provides immunity for all wrongful termination claims if the subject employee is discharged in compliance with the Act.
·Private Enforcement - Any resident of the state can petition the Attorney General to bring enforcement actions by submitting a written signed petition describing the suspected violation.
·Tax Deductions - Wages paid to unauthorized aliens are not allowed as a deductible business expense on the employer's income tax return. The penalty for claiming such wages is ten times the deduction claimed.
·Discrimination Claims - The Act creates a new discrimination cause of action. It will be unlawful discrimination to refuse to hire, or to fire either a U.S. Citizen or an alien authorized to work in the U.S. while also retaining or hiring a person that the employer knew or should have known was an unauthorized alien. Courts may award compensatory damages such as back wages and mental anguish but no punitive damages. Attorneys' fees are also allowed but are capped by the amount paid in attorneys' fees for the defense of the employer, a rather unusual provision. Interestingly the bill does not seem to provide as a defense the fact that the employee was discharged for good cause. The mere fact that the employee was discharged, even with just cause, would appear to be a violation of the Act if an unauthorized alien is retained.
2011 LEGISLATIVE ACTIONS OF NOTE
The Full Employment Act of 2011 which allows the state to offer a $1,000 tax credit to companies who hire workers off the unemployment rolls. (House Bill 230)
*An amendment to the Constitution of Alabama which, if approved by voters, will prohibit any person, employer, or health care provider from being forced to participate in any health care system. (House Bill 60)
*An amendment to the Constitution of Alabama which, if approved by voters, would ensure Alabama remains a “Right-to-Work” state by guaranteeing the right of individuals to vote by secret ballot on attempts to unionize. (House Bill 64)
TORT REFORM
The Legislature passed a package of bills aimed at curbing lawsuit abuse and improving Alabama’s court system, all of which have been signed into law.
*Admissibility of Expert Testimony (Senate Bill 187) brings Alabama
The Medicaid budget for O & P was cut some and our medicaid committee will work with ;the agency to allow as much payment as can be done. We will keep you updated on this. The Medicaid agency and our committee will meet in August to tackle this.
Bentley signed the new immigration legislation this week. While the 72 page bill has broad impact on all sectors of government, the portions of greatest importance to employers are as follows:
·Applies to All Employers - All public and private employers regardless of size are prohibited from hiring or continuing to employ unauthorized aliens in Alabama.
·Use of E-Verify - All Alabama employers are required to enroll and use E-Verify no later than April 1, 2012. All business entities that receive any state contract, grant, or incentive must enroll and use E-Verify a few months earlier - no later than January 1, 2012. There is a safe harbor for usage of E-Verify because all employers using E-Verify are deemed not to have knowingly hired or employed any unauthorized alien. Employers must be prepared to prove that they used E-Verify on the employee in question.
·E-Verify for Small Employers - Employers with 25 or fewer employees can use the Alabama Department of Homeland Security to run its E-Verify checks for free. This is designed to allow small employers who may not have internet access to still comply with the Act.
·Prohibitions on Employees - The Act makes it unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor.
·Penalties for Violation - Penalties for violations are stiff. Upon a first violation a court can order the employer to terminate the employment of the subject employee and any state contracts can be terminated. The employer is put on a three year probationary period during which it must file quarterly reports with the local district attorney listing each new employee hired. The employer must also file a sworn affidavit with the district attorney within three days of the court order stating that it has terminated the employment of all unauthorized aliens and will not continue to employ unauthorized aliens. The business license can also be suspended for up to 10 days at the location of the violation and reinstatement of the license requires enrolling in E-Verify and an affidavit verifying compliance with the Act. Upon a second violation of the Act the business license of the location of the violation is permanently revoked. Upon a third violation, all business licenses of the employer throughout the state are permanently revoked effectively shutting down the business' operations within the State of Alabama. Failure of a public agency to suspend a business license as required by the Act is itself a violation subjecting the agency to penalties.
·Requirements for Contractors and Subcontractors with Government Contracts - As a condition to receiving a contract, grant, or incentive by the state or local government, contractors and subcontractors must attest by sworn affidavit that they have not knowingly employed, hired, or continued to employ any unauthorized alien. The business must also provide documentation establishing that it is enrolled in the E-Verify program. We are researching to see if this applies to those receiving medicaid payments.
·Lawsuit Immunity - The Act provides immunity for all wrongful termination claims if the subject employee is discharged in compliance with the Act.
·Private Enforcement - Any resident of the state can petition the Attorney General to bring enforcement actions by submitting a written signed petition describing the suspected violation.
·Tax Deductions - Wages paid to unauthorized aliens are not allowed as a deductible business expense on the employer's income tax return. The penalty for claiming such wages is ten times the deduction claimed.
·Discrimination Claims - The Act creates a new discrimination cause of action. It will be unlawful discrimination to refuse to hire, or to fire either a U.S. Citizen or an alien authorized to work in the U.S. while also retaining or hiring a person that the employer knew or should have known was an unauthorized alien. Courts may award compensatory damages such as back wages and mental anguish but no punitive damages. Attorneys' fees are also allowed but are capped by the amount paid in attorneys' fees for the defense of the employer, a rather unusual provision. Interestingly the bill does not seem to provide as a defense the fact that the employee was discharged for good cause. The mere fact that the employee was discharged, even with just cause, would appear to be a violation of the Act if an unauthorized alien is retained.
2011 LEGISLATIVE ACTIONS OF NOTE
The Full Employment Act of 2011 which allows the state to offer a $1,000 tax credit to companies who hire workers off the unemployment rolls. (House Bill 230)
*An amendment to the Constitution of Alabama which, if approved by voters, will prohibit any person, employer, or health care provider from being forced to participate in any health care system. (House Bill 60)
*An amendment to the Constitution of Alabama which, if approved by voters, would ensure Alabama remains a “Right-to-Work” state by guaranteeing the right of individuals to vote by secret ballot on attempts to unionize. (House Bill 64)
TORT REFORM
The Legislature passed a package of bills aimed at curbing lawsuit abuse and improving Alabama’s court system, all of which have been signed into law.
*Admissibility of Expert Testimony (Senate Bill 187) brings Alabama
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