Craig's Corner For Counsel: Health Care Law

Sunday, March 1, 2009 - 00:00

The attorneys who represent America's businesses often need to know the intricacies of health care plans and other employer-sponsored benefits.Because health care law is complex and ever-changing, it can be hard to keep up with the changes.

Fortunately, they can lean on the expertise of people like Paul Routh, partner at Weprin Folkerth & Routh LLC and author of Welfare Benefits Guide: Health Plans and Other Employer Sponsored Benefits, 2008-2009 ed ., published by West, and Mike Suttman, partner at McGohan Brabender. I recently gained insights into health care law from Routh and Suttman.

Miller: What trends are you seeing in health care law?

Routh: One trend that we are starting to see is self-funded plans. They are really only viable for larger groups with more than 200 employees. An issue that has come up relates to stop-loss contracts. The group hires a third party administrator to manage the claims with a stop-loss contract that provides that the employer is responsible for a certain amount and then the stop-loss carrier picks up the difference.

However, because of financial problems, the stop-loss carriers are holding the groups to the specific terms of the contract. They are not being as generous as they were in the past. The plan documents will provide coverage for certain conditions, but the stop-loss contract will have different terms. Counsel has to be well aware of these specific provisions because the dollars involved are huge. In the self-funded arena, a difference in coverage agreements could bankrupt the company.

Suttman: Another trend is the growth of wellness programs. I used to be able to go three years and not have anyone tell me about a wellness program. If they ever got near it they'd say, "Gee, I think smoking is a bad idea; can I penalize my employees for smoking or not hire smokers?" Now, I probably can't go three meetings with clients where they don't bring up the idea of a wellness program.

We really see wellness as a growing initiative. It seems to me a lot like recycling. The reason recycling is viable is because the company that's collecting all that stuff has found a way to make money out of recycling. You've got to have some economic incentive to make wellness programs work, and you've got to have some proof for an employer to go down that road.

Miller: What are the compliance issues for health care?

Routh: The rules are unbelievably complex but enforcement of these rules hasn't been a high priority for the government. The government has adopted a voluntary compliance program. If you come forward to file the necessary forms, even late, there's a reduced penalty. If the government finds the violation, the penalties are expensive.

If the employer isn't paying its premiums, as the employee, I'm going to know about that relatively quickly, especially if my claims don't get paid. Health care is complaint-driven.It hasn't been enforcement-driven. The real driving force with compliance issues is the lawsuits. People are going to file lawsuits to get claims paid.

Miller: Are there any new challenges in communicating about health care to employees?

Suttman: Over the past few years, we've had to transform dramatically from a communications standpoint with the proliferation of managed care, PPOs, HMOs and the recent growth of consumer-directed health plans. Also, HSAs and HRAs have become much more directly linked with employee communication. Companies have to explain their benefits program to their employees so that they get maximum advantage out of the investment they're making in their benefits program. That complexity continues, no matter what.

Paul Routh's book, Welfare Benefits Guide: Health Plans and Other Employer Sponsored Benefits, 2008-2009 ed., is available on the West website at Miller is vice president of the Corporate Sales & Marketing division for West, part of Thomson Reuters.

For additional insight on healthcare and employee benefits, the following Westlaw databases also are available:

HPTS Issue Briefs & Snapshots: Healthcare Providers and Facilities(HPTS-PRF)

Major Health Care Policies: 50 State Profiles (HTHCPOL)

Health Care Financial Transactions Manual (HTHCFTM)

Employee Benefits Handbook (EMBEHB)

Corporate Compliance Series: Designing an Effective ERISA Compliance Program (CORPC-ERISA)

Federal and State Guide to Employee Medical Leave, Benefits and Disabilities Laws (FSGEML)