States Can Now Add Work or Job Training Requirements to Medicaid

UPDATE: One day after announcing states could institute work requirements for Medicaid, Kentucky became the first state to do so as CMS approved its 2016 waiver request. The state now requires able-bodied adult recipients to participate in at least 80 hours per month of “employment activities,” which include jobs training, education and community service.

The Trump administration today released guidance allowing states to add work or job training requirements for entry into the Medicaid health care system.

cms-allows-work-requirement-for-medicaidMedicaid is a state-federal partnership that was expanded under the Affordable Care Act (ACA, or Obamacare) to those making up to 138 percent of the federally defined poverty level, adding millions to the rolls as 31 states joined the program with generous federal funding.

The move today came in the form of new guidance from the Centers for Medicare and Medicaid (CMS), which administers the program started a half-century ago for the neediest Americans.

“Our fundamental goal is to make a positive and lasting difference in the health and wellness of our beneficiaries, and today’s announcement is a step in that direction,” said Seema Verma, the administrator of the federal Centers for Medicare and Medicaid Services.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Revives Practice of Issuing FLSA Opinion Letters

In early January, the Department of Labor (DOL) reissued 17 opinion letters that the Obama DOL had quashed in favor of issuing broadly applicable “Administrator’s Interpretations,” two of which have now been rescinded by the Trump DOL.

dol-reissues-flsa-opinion-lettersThe 17 opinion letters regarding wage and hour issues were promulgated in the late days of the Bush administration in 2009, but because they had never been sent to the firms seeking the DOL’s opinion, the Obama DOL simply dropped them in favor of “further review.”

This background may sound a bit convoluted, but the main point is that the new DOL under Secretary Alexander Acosta will again be answering inquiries by businesses with wage and hour questions. In addition, the 17 revived documents will now have weight in court under terms of the Portal-to-Portal Act regarding provisions of the Fair Labor Standards Act (FLSA).

The Portal-to-Portal Act of 1947 amended the FLSA to provide an employer with an affirmative legal defense that protects it from liability when the employer takes a certain action in reliance upon any written regulation, ruling, or interpretation by the DOL and its Wage and Hour Division (WHD).

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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IRS Extends Deadline for Furnishing Form 1095-C to Employees

The IRS has extended by 30 days the deadline for providing Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, to each employee. The new deadline is March 2, 2018, replacing the original Jan. 31 deadline.

Form 1095-C affects Applicable Large Employers (ALEs), those with 50 or more employees, who are mandated to provide essential health benefits. The form is used by employees to provide proof to the IRS that they have been covered by health insurance and thus are not subject to any tax penalty.

The transmission dates to the IRS for the same form have not changed: Feb. 28 for paper filers and April 2 for electronic filers.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Number of OSHA Inspectors Falls

From President Trump’s inauguration through Oct. 2, the number of field inspectors at the Occupational Safety and Health Administration (OSHA) fell by 40 (4 percent of total) due to retirements, but so far few replacements have been hired, according to NBC News, which obtained the data through a Freedom of Information Act (FOIA) request.

OSHA-loses-4-percent-of-inspectors

OSHA is responsible for insuring safety and health at all American businesses.

Total number of inspectors stood at 1,000 before the departures. In all, OSHA employed 2,000 full-time personnel when Trump came in, but that number has shrunk by 116 through December 2017.

Former OSHA chief David Michaels gave his take to NBC News: “It means there’s greater pressure to quickly reach a settlement with the employer, which often means reduced fines. The lack of new inspectors makes OSHA invisible. If employers don’t think OSHA will come, workers are much more likely to be hurt.”

Since early October, the agency has hired “several additional inspectors” and is currently recruiting more than two dozen more, countered Department of Labor (DOL) spokesman Eric Holland.

The parent Labor Department also counters that, even with fewer inspectors, OSHA is increasing inspections. The agency says it conducted 32,396 OSHA inspections from October 2016 to the end of September 2017 (federal fiscal year) — a few hundred more than in 2016, marking the first annual increase in five years. (more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Some State ACA Exchanges Still Open

A handful of states are still operating their Affordable Care Act (ACA) marketplace exchanges, even after the federal exchange — HealthCare.gov — closed down in mid-December for everyone except those in hurricane- or wind-ravaged areas.

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Obamacare open enrollment has ended, but some states are still operating their exchanges.

The federal exchange, even with a window half as long as in 2016, saw 8.8 million people sign-up for coverage beginning Jan. 1 — just 400,000 enrollees short of the 2016 mark.

California, New York and the District of Columbia have the latest sign-up date, Jan. 31, but plans purchased in January won’t start until Feb. 1 or even March 1, depending on the state and purchase date.

Four states with varying cut-off dates are guaranteeing coverage starting Feb. 1: Colorado (Jan. 12), Minnesota (Jan. 14), Washington (Jan. 15) and Massachusetts (Jan. 23).

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Rewrites Another Obama-Era Rule, This One for Interns

During the Obama presidency, the Department of Labor (DOL) devised a six-part test to determine whether an intern is really just that or more like an employee-in-disguise working for free. Part of that test required that the employer receive “no immediate advantage from the activities of the intern,” a rule that several appellate courts found troubling and rejected in favor of their own tests.

department-of-labor-loosens-rule-on-internsOn Jan. 5, the DOL announced it was scrapping the six-part test in favor of the “primary beneficiary test” put forth in various ways by the 2nd, 6th, 9th and 11th Circuit Courts of Appeal.

The “primary beneficiary test” is flexible, without a single determining fact. As the DOL statement explains, “Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.”

The announcement also notes: “The Wage and Hour Division (WHD) will update its enforcement policies to align with recent case law, eliminate unnecessary confusion among the regulated community, and provide the division’s investigators with increased flexibility to holistically analyze internships on a case-by-case basis.” (more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Increases Across-the-Board Penalties by 2 Percent

The Department of Labor (DOL) has increased its employment law penalties by 2 percent, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. That law allows agencies to adjust penalties according to inflation by Jan. 15 of each year.

Maximum penalty increases for violating minimum-wage and overtime rules are rising from $1,925 to $1,964; child labor laws from $12,278 to $12,529; and anti-retaliation and discrimination laws under visa programs from $20,111 to $20,521.

VIEW CHART OF ALL INCREASES


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Announces NPRM on Association Health Plans

The Department of Labor (DOL) today announced a Notice of Proposed Rulemaking (NPRM) to expand the opportunity to offer employment-based health insurance to small businesses through Small Business Health Plans, also known as Association Health Plans.

According to the press release announcing the NPRM:

dol-announces-nprm-on-association-health-plansUp to 11 million Americans working for small businesses/sole proprietors and their families lack employer-sponsored insurance. These 11 million Americans could find coverage under this proposal. Many small employers struggle to offer insurance because it is currently too expensive and cumbersome. These employees – and their families – would have an additional alternative through Small Business Health Plans (Association Health Plans). These plans would close the gap of uninsured without eliminating options available in the healthcare marketplace.

Under the proposal, small businesses and sole proprietors would have more freedom to band together to provide affordable, quality health insurance for employees.

The proposed rule, which applies only to employer-sponsored health insurance, would allow employers to join together as a single group to purchase insurance in the large group market. These improvements stand to open health insurance coverage for millions of Americans and their families by making it more affordable for thousands of small businesses and sole proprietors. By joining together, employers may reduce administrative costs through economies of scale, strengthen their bargaining position to obtain more favorable deals, enhance their ability to self-insure, and offer a wider array of insurance options.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Increases Violation Fines for 2018

Effective Jan. 2, 2018, the Occupational Safety and Health Administration (OSHA) has increased its fines an average of 2 percent in keeping with the Federal Civil Penalties Inflation Adjustment Act of 2015.

osha-raises-penalty-amountsThat legislation initially raised fine levels by 78 percent and authorized OSHA and other agencies to adjust their fines for inflation by Jan. 15 of each year.

Accordingly, OSHA has adjusted these fines from 2017 levels:

  • Any willful violation of OSHA rules or standards: Minimum raised from $9,043 to $9,239; maximum from $126,749 to $129,336
  • Any repeat violation of OSHA rules or standards: Maximum of $126,749 to maximum of $129,336
  • Any serious violation of OSHA rules or standards: Maximum of $12,675 to maximum of $12,934
  • Any OSHA violation deemed not serious: Maximum of $12,675 to maximum of $12,934
  • Failure to correct a violation: From maximum per day violation continues of $12,675 to maximum of $12,934 per day
  • Violation of posting requirements: Maximum of $12,675 to maximum of $12,934

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOJ Withdraws 25 Guidance Documents for 2017

Attorney General Jeff Sessions has announced that, pursuant to Executive Order 13777 and his November memorandum prohibiting certain guidance documents, he is rescinding 25 such Department of Justice (DOJ) documents that were deemed unnecessary, inconsistent with existing law, or otherwise improper.

DOJ-withdraws-25-guidance-documentsIn making the announcement, the Attorney General said:

Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page. Congress has provided for a regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice.

Therefore, any guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulation should not be given effect. That is why today, we are ending 25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force led by our Associate Attorney General Rachel Brand.  We will continue to look for other examples to rescind, and we will uphold the rule of law.

In March, President Donald Trump issued Executive Order 13777, which calls for agencies to establish Regulatory Reform Task Forces, chaired by a Regulatory Reform Officer, to identify existing regulations for potential repeal, replacement, or modification. The Department of Justice Task Force, chaired by Associate Attorney General Rachel Brand, began its work in May.

On Nov. 17, the Attorney General issued a memorandum prohibiting DOJ components from using guidance documents to circumvent the rulemaking process and directed Associate Attorney General Brand to work with components to identify guidance documents that should be repealed, replaced, or modified.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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