The Genetic Information Nondiscrimination Act (“GINA”) was passed by Congress in 2008 and took effect on November 21, 2009. As its name implies, GINA prohibits the use of “genetic information” by employers in making any decisions related to the treatment of their employees or the hiring of new employees. It also requires that such information be kept separately from other information about the employee and prohibits the disclosure of such information, with a few exceptions. As with other federal employment discrimination laws, GINA applies to all employers who have 15 or more employees of any kind (full-time, part-time, seasonal) and is enforced by the Equal Employment Opportunity Commission (“EEOC”).
GINA has not gotten a lot of attention up to now, but with the coming implementation of the major provisions of the Patient Protection and Affordable Care Act, otherwise known as Obamacare, all covered employers should be aware of it, as it contains a trap for the unwary employer. That trap is found in how “genetic information” is defined. As you would expect, such information includes the results of genetic tests on the current or potential employee or his or her family members. However, it also includes information about a current or potential employee’s family medical history. So not only can an employer not ask about the results of any genetic tests a current or potential employee may have had, it can not ask any questions about such an employee’s or family member’s medical history (e.g., have you ever had the measles).
That GINA will become a focus of the EEOC with the coming of Obamacare is indicated by the fact that it recently announced its first enforcement action and filed a separate class action against employers for violating it. The enforcement action also illustrates another trap for the unwary covered employer. In that action, which resulted in the payment of a $50,000 fine by the employer, the prohibited questions about an employee’s medical history were asked by a third-party medical provider. Even though the employer was not aware of the fact that such questions were being asked, it was still liable under GINA. An employer can protect itself against liability for such third-party actions by telling current or potential employees not to answer questions about family medical history or genetic information that may be posed by a third-party medical or other provider. (Click here for more information on GINA and FAQs for small businesses regarding it).
Agency owners and insurance agents with customers who are covered by GINA should familiarize themselves with its major provisions. For agents, offering to review the applications used by customers for potential new employees or for health insurance coverage for existing employees to determine if they contain any questions prohibited by GINA would provide be a value added service for existing customers and could be a way to approach potential new customers.
I just learned that the presentation slides for the webinar that was held a week ago Tuesday by the Center for Consumer Information & Insurance Oversight are now available online. That webinar included a general overview of the Patient Protection and Affordable Care Act, otherwise known as Obamacare, and focused on the insurance exchanges that are to be created later this year under that Act and the role that CCIIO sees insurance agents and brokers playing with respect to those exchanges. The presentation slides for the webinar contain a lot of information about the portions of Obamacare that will take effect on January 1, 2014 and the role that agents and brokers can play in helping both individuals and small business owners participate in the insurance exchanges that are to be created by that date. Although the audio portion of the webinar was not recorded for unspecified “legal reasons”, the slides seem to be pretty much self-explanatory. (Click here to view the slides.)
As mentioned in a previous blog post about the webinar, the CCIIO has also recently issued a guidance memorandum that specifically addresses the role that agents and brokers can play with respect to the insurance exchanges that are to be created later this year. (Click here for that post which contains a link to the guidance memorandum.) It appears that business opportunities will be available for those agents and brokers willing to take the time to familiarize themselves with those insurance exchanges and how they will operate. The website for the vendor that is assisting CCIIO in its efforts to provide technical assistance regarding the insurance exchange and premium stabilization components of Obamacare contains many resources for those who may be interested in learning more about those subjects and a calendar of upcoming educational events. Click here for an article in the IA Magazine that explains how to gain access to those resources.
A belated well done is due to J. Smith Lanier & Co. for its ranking among the top 5 midsize companies to work for in Georgia. This ranking was done by the Atlanta Journal Constitution and the results were published in its April 28, 2013 edition. Hundreds of companies were nominated and the final rankings were based on surveys of the employees of the companies that had been selected from those nominations and agreed to participate in the surveys. A total of 100 companies in three categories (large, midsize, and small) were recognized by the AJC as being the best places to work in Georgia.
J. Smith Lanier & Co. was the only insurance agency that made it into the AJC’s rankings and there were no insurance companies in the top 100 workplaces. However, Infinity Insurance Company did receive an honorable mention. In addition to being ranked the 4th best midsize company to work for, J. Smith Lanier was recognized as the top company of all 100 when it came to ethics. An employee was quoted as saying, “This company has always stood for the highest values and ethical treatment of clients and vendors.” This is high praise for an agency that has been around for over 140 years.
In the same section of the AJC that featured the top 100 places to work in Georgia, there was a ranking of 200 jobs from best to worst that had been compiled by CareerCast.com. The criteria used to rank those jobs included the physical and emotional environment, income growth potential, employment outlook, and level of stress of each job. To my surprise, the top rated job was that of actuary. Insurance agent was ranked number 78, so it appears the insurance industry is a good place to find a job. Unfortunately for the AJC, the lowest ranked job was that of newspaper reporter. (Click here for more information on the job rankings.) In case you were wondering, attorney was ranked number 117, right below funeral director and above ironworker.
As has previously been reported in the IIAG newsletter, the requirement that the workers compensation Form WC-10 be notarized has been eliminated by the State Board of Worker’s Compensation and a new Form WC-10 adopted, effective on May 1, 2013. (Click here for my post on the problems presented by the notarization requirement.) Today, the Insurance Commissioner issued a Bulletin acknowledging that fact and formally withdrawing its Bulletin from late 2012 in which the use of the new form with the notarization requirement was mandated. The latest Bulletin states that either version of the Form WC-10 can be used and “should be recognized by the carriers at audit.” (Click here to see a copy of the Bulletin and a link to the new WC-10 form.)
I recently came across a checklist for reducing worker’s compensation costs that has been developed by Integrity Insurance. It’s a simple two page form that an agent could adapt for their own use in dealing with their existing or potential workers compensation customers. Providing such customers with such a checklist can be a value added service for agents, especially since the form encourages the use of an independent insurance agent to assist the customer with evaluating the factors and implementing the suggested actions identified in the checklist. (Click here for a copy of the checklist.)
CCIIO is the acronym for the Center for Consumer Information & Insurance Oversight, which is the government agency charged with overseeing the implementation of the insurance exchanges that will be a central feature of the Patient Protection and Affordable Care Act, otherwise known as Obamacare. CCIIO has recently issued a guidance memorandum on the role that it expects insurance agents and brokers to play in connection with the insurance exchanges. In that memorandum, CCIIO states that agents and brokers will be able to assist consumers and businesses in obtaining insurance through the exchanges by either working through the websites of insurance companies or directly on the websites of the exchanges. In particular, CCIIO thinks that agents and brokers “will play a critical role” in helping employers and employees obtain coverage through the Small Business Health Options Programs that will be created.
In states like Georgia that have chosen not to create their own state health insurance exchange, agents and brokers will have to register with the Centers for Medicare and Medicaid Services (“CMS”), which is the parent agency of CCIIO. CMS anticipates being able to start registering agents and brokers online sometime this summer. The registration process will involve participating in an online training program. After the registration process is completed, the agent or broker will be provided with a user ID number that will be necessary in order for the agent or broker to be paid for their services in assisting employers and employees in obtaining and maintaining insurance coverage through the insurance exchange. The federally created or assisted insurance exchanges will not determine the amount of such compensation. Instead, the insurance companies who participate in the exchanges will continue to determine the amount of such compensation, which they will pay. However, as of now, that compensation must be the same as the company pays for issuing insurance coverage outside of the insurance exchanges. Click here for the complete guidance document which contains answers to many frequently asked questions.
For those interested in learning more about the role that CCIIO sees agents and brokers playing with respect to the insurance exchanges, there is a webinar on this subject tomorrow, May 14, 2013, beginning at 1 pm. Apparently, agents and brokers have had some difficulty in registering for this seminar, so IIABA has provided detailed instructions for doing so. Click here to see those instructions.
Regardless of how you may feel about Obamacare, it appears that the federal government anticipates that there will be a need for agents and brokers in implementing it and recognizes that they should be paid for their services. Given the amount of confusion there is likely to be, there would seem to be a great need on the part of consumers and businesses for knowledgeable assistance in determining what their best course of action would be. Providing such assistance has traditionally been the role filled by health insurance agents and brokers, so it appears there will be life after Obamacare for them after all.
The Office of the Insurance Commissioner has recently announced the adoption of a new regulation governing the issuance of insurance certificates. (Click here for a complete copy of the regulation.) That regulation will be effective on May 22, 2013. It essentially follows the provisions of the statute on insurance certificates that was adopted by the Georgia legislature in 2011, fleshing out some of its requirements, and imposes some new requirements on insurers regarding the procedures to be followed by their agents when issuing such certificates.
The new regulation specifies that only insurers may file a request with the Insurance Commissioner’s Office to approve a form insurance certificate and it permits the use of expired ACORD and ISO forms, as long as ACORD and ISO permit their use “during periods of transition.” Of most importance for insurance agents are the new requirements imposed on insurers, the type of references that may be made in an insurance certificate to other contracts, and how agents may respond to requests for confirmation that the insurance policy in question satisfies a contractual requirement.
The new regulation requires insurers to provide “written instructions” to their agents “clearly outlining the insurer’s procedures and each party’s responsibilities for issuing and servicing certificates” and requires these procedures to address three subjects: (i) the issuance of a notice of cancellation to certificate holders who have the right to receive such notice under a statute or the underlying insurance policy, (ii) the retention of copies of all certificates issued by agents, and (iii) the monitoring of certificates that have been issued to ensure compliance with the insurer’s procedures and any applicable law or regulation.
The new regulation states that an insurance certificate may contain a reference to or contract number for a “construction or service contract for identification purposes only” and provides that this may include a “project number, project name, project description, or a general description of work to be performed.” However, “nothing in the certificate can refer to any language or contents in the construction or service contracts.”
The new regulation specifically states that an insurer or agent can not be required to issue an opinion letter or other document in addition to or in lieu of an insurance certificate. This clarifies the statutory language on this subject by establishing a bright line rule that agents can now refer to in the event they are asked to do something beyond the mere issuance of an insurance certificate. When that something consists of a request that an agent state whether an insurance policy satisfies a particular contract provision, the regulation states that an insurer or agent “may provide the certificate holder with the certificate and an actual copy of the policy, insurance binder, or relevant policy provision to demonstrate contractual compliance.”
Finally, the new regulation limits the use of insurance certificates that contain only a statement that the certificate does not amend or otherwise change the provisions of the underlying insurance policy and does not also contain a statement that it is being provided only for informational purposes. Such certificates must specify the purposes for which they can be used and can only be used for those purposes. Examples of such purposes found in the regulation are “mortgagee requirements or lending transactions.” Any person requiring or using such certificates for an improper purpose can be fined up to $5,000 by the Insurance Commissioner and an offending agent’s license could be suspended or revoked.