EAPs that provide medical services such as direct counselling and treatment, not just referrals for advice and treatment, are governed by the Employee Retirement Income Security Act (ERISA) and are subject to COBRA regulations. If the EAP does not provide services directly, but only provides referrals and assists employees in receiving those services, it is not considered a group health insurance plan and is not subject to COBRA regulations. See Is an Employee Support Program (EAP) subject to COBRA? Is it considered an excluded benefit under the PPACA? Unfortunately, we can`t generalize this opinion to ERISA, COBRA, HIPAA, or other regulations, but it`s quite specific to HSAs. Q: Are EA programs in the U.S. subject to Medicare`s secondary payer reporting requirements? Answer: Medicare`s secondary payer reporting rules are required under Section 111 of the Medicare Act, Medicaid and SCHIP Extension Act of 2007. Under these rules, insurers and third-party administrators, as well as plan administrators or trustees of self-insured and self-directed group health plans, are required to collect information from their plan sponsors and members who assist the Centers for Medicare and Medicaid Services (CMS) in identifying situations where the Medicare Group Health Plan is primary and communicating that information to CMS. on a quarterly basis. EAPs that fall within the definition of “group health plan” for the purposes of HIPAA, COBRA, or ERISA (see FAQ above) are also subject to Medicare`s secondary payer reporting requirements. In general, these requirements can be considered a compliance issue for which the plan sponsor (employer) is responsible. Most companies submit reports using the “Review Template” published by CMS. [NOTE: The above information is for general information purposes only.
This is not legal advice and should not be construed as legal advice.] Question: Are the EA program records the same as the medical and mental health records or are they different? What are the laws for keeping EA records? Answer: Employee Assistance (EA) records are generally not the same as medical and mental health records. While some EA records may contain medical or mental health information, others (such as those related to financial or legal hardship) may not. Depending on the location (e.g., country, state, province) or design (e.g., internal, external, peer, hybrid) of the environmental assessment program, the qualifications of those who create and use the records can vary considerably. For example, some jurisdictions and/or programs require individual clients to be served by certified master`s level clinicians; others require certification as an EA Professional (CEAP), regardless of their degree; Still others have different requirements depending on the nature of the problem (e.g., a lawyer who specializes in legal matters), etc. However, regardless of the location or design of the environmental assessment program, all APS files must comply with APS standards and professional guidelines for employee support programs (available on the APS website). The Record Retention Standard (Standard II.G.) is as follows: The Employee Support Program creates and manages client files that comply with the Employee Support Program`s service delivery system, organizational policies, program procedures and applicable legal requirements. Since companies and programs operate in such diverse environments, each company should consult with its own legal counsel to determine what is necessary to comply with “essential elements” 2 and 3 above in terms of applicable laws and regulations and how long records are retained. In the United States, company regulations on how EA files should be handled were very different, depending on the unique characteristics and circumstances of each program. Examples*: In the 1970s, EAP-related legislation was passed that institutionalized EAPs in federal organizations. For more information on EAP legislation, regulations and government-wide initiatives, see the “Guidelines and Legislation” section. Another important change in the EAP space in the 1970s was the creation of private EAP companies.
These organizations have begun to offer EAP services through contracts to employers. As a result, federal organizations may have one of four different EAP models: internal, external, hybrid, and consortium. More recently, federal organizations` EAPs have continued to expand their services and maintain their critical role. Many federal EAPs now provide services to employees` family members. When structuring an EAP, consider whether the EAP would trigger various government insurance laws and regulations, as each EAP is structured differently, from the services they provide to how employers pay for the benefit. Accordingly, each programme should be considered individually, paying particular attention to the services provided, the payment of services by the employer and whether a transfer of risk has taken place. Confidentiality is an essential part of an EAP. Federal law requires the confidentiality of alcohol and drug abuse records and provides penalties for illegal or unauthorized disclosure of information. The same rules also prohibit the implicit or negative disclosure of information. As a result, EAPs are not allowed to publish information without signed consent, regardless of the nature of the problem.
[NOTE: The above information is for general information purposes only. This is not legal advice and should not be construed as legal advice.] Q. Are EA services in the U.S. HIPAA-subject? Answer: The Health Insurance Portability and Accountability Act (HIPAA) establishes national standards for the protection of individually identifiable health information transmitted electronically by health plans, healthcare clearinghouses, and healthcare providers. The HIPAA Security Rule establishes national standards to protect the confidentiality, integrity, and availability of electronically protected health information (PHI). The definition of “group health plan” under HIPAA is identical to COBRA`s (and essentially the same as ERISA`s). Thus, if an EA program is considered a group health plan for COBRA purposes (see FAQ above), the EA program would also be a group health care plan for HIPAA purposes. Meeting and complying with HIPAA requirements can be a very detailed and potentially expensive initial process, but most of EA`s programs and vendors find it important to do so, even if they are not currently subject to HIPAA regulations.
Electronic transmission of information is becoming increasingly ubiquitous in today`s world, and the definition of PSI is such that it would be very difficult to exclude environmental assessment information. From a risk management perspective alone, the APS recommends that each EA program and provider have very clear policies and safeguards for the flow of EA information and data. [NOTE: The above information is for general information purposes only. This is not legal advice and should not be construed as legal advice.] Question: How are EAPs treated in the United States under Health Savings Account (HSA) legislation? Answer: The IRS, which reports to the U.S. Department of the Treasury, has been tasked with drafting the guidelines for determining eligibility for HSAs. The Department of Finance noted that an EAP does not render a person unauthorized to contribute to an HSA. On 23 July 2004, the Ministry of Finance issued Communication 2004-50 to provide comprehensive guidance on a range of issues related to HSA. The note is available in Q&A format with clarifying examples. EAPs are discussed in Question 10, which is reproduced here: Q-10.
Does coverage of an employee support program (EAP), disease management program or wellness program prevent an individual from contributing to an HSA? A-10 A person is sure to be an eligible person under paragraph 223(c)(1)(A) simply because he or she is covered by an EAP, disease management program or wellness program if the program does not provide significant benefits in the type of medical care or treatment and is therefore not considered a “health care plan” within the meaning of paragraph 223(c)(1). In order to determine whether a program offers significant benefits in terms of medical care or treatment, screening and other preventive care services described in Communication 2004-23 are not considered. See also Q&A 48 on incentives for employees participating in these programs. Example (1). An employer offers a program that provides benefits to employees under an EAP, regardless of enrollment in a health care plan. The EAP is specifically designed to help the employer improve productivity by helping employees identify and resolve personal and professional issues that impact job performance and the work environment.
