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Attorney Spotlight

How did an interest in healthcare policy lead Robert Platt to a career in the law? Find out more>

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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

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Thought Leadership

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GDPR Top 5 Actions You Should Take Now

The EU's General Data Protection Regulation (GDPR) went into effect on May 25th. As most organizations are aware, the GDPR applies not only to EU businesses but also many companies in the U.S. While the deadline is quickly approaching, most organizations are still grappling with the implications of the regulation on their business. Even if your readiness efforts are behind the curve, the GDPR Top 5 Actions You Should Take NOW will help you begin your efforts towards compliance and help mitigate your organization's risk in the short-term.

Click here to download the checklist.

Model Employer Exchange (now "Marketplace") Notices Issued by the DOL

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May 10, 2013

Distribution Required by October 1

Included in the Patient Protection and Affordable Care Act, as amended ("Affordable Care Act"), is a requirement that employers provide notice to all employees of the availability of (and certain information about) health coverage under the health insurance exchange ("Marketplace")[1] and the employer's plan, as applicable. By statute, this new notice requirement was effective by and after March 1, 2013, but, in January 2013, the Department of Labor ("DOL") helpfully delayed implementation until the issuance of further guidance (see our January Alert).

On May 8, the DOL issued temporary guidance (Technical Release 2013-02, available here) and model notices for employers' use in meeting the new October 1, 2013 implementation deadline. The DOL likely will issue additional guidance and, perhaps, revised model notices in the coming months, but has stated that any such future guidance "will provide adequate time to comply with additional or modified requirements." Thus, use of these model notices apparently will constitute compliance with this new notice requirement unless and until the DOL provides contrary, prospective guidance.

The DOL has provided two model notices (each of which requires some tailoring by the employer): (1) one for use by an employer that offers health plan coverage to some or all of its employees, available here; and (2) the other for use by an employer that does not offer health plan coverage, available here.

The notice requirement is broad-reaching: all employers subject to the Fair Labor Standards Act ("FLSA") [2] must provide the notice to all employees, without regard to health plan eligibility (e.g., part-time vs. full-time) or enrollment status.

The applicable notice must be provided: [3] 

  • to current employees before October 1, 2013, and 
  • to new employees, at the time of hiring (or within 14 days of an employee's start date) on and after October 1, 2013.

New Model COBRA Election Notice Also Issued

With this guidance, the DOL also has updated its model COBRA [4] election notice (available here) to add information about the new (in 2014) Marketplace, which may provide qualified beneficiaries with an alternative to COBRA continuation coverage (i.e., "to help make qualified beneficiaries aware of other coverage options available in the Marketplace"), and to make certain revisions to reflect the elimination of preexisting condition limitations beginning in 2014.

Although the model election notice is not required to be used by plan administrators, the DOL considers its use to constitute good faith compliance with this notice requirement under COBRA, and we therefore recommend the revisions (visible in the DOL's redline version) be incorporated into all COBRA election notices.

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[1] With this and other recent Affordable Care Act guidance, it appears the regulators have continued, if not completed, the transition to the term "Health Insurance Marketplace" or, simply "Marketplace," to describe the health insurance market previously (and still somewhat commonly) referred to as the "exchange."
[2] For help in determining whether a particular employer is subject to the FLSA, see the DOL's Internet compliance tool available here.
[3] The notice may be provided electronically, provided the DOL's electronic safe harbor requirements are met.
[4] The Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").


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