EEOC Files Lawsuit Against Employee Wellness Program

Brian Jones:

Another great health insurance update from our colleagues at the Bose Employee Benefits Blog. Enjoy!

Originally posted on Bose Employee Benefits Blog:

On August 20, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed suit in Wisconsin federal court challenging an employee wellness program’s legality under the Americans with Disability Act (“ADA”). As noted in a press release, this lawsuit is the EEOC’s first to directly challenge a wellness program under the ADA.

Orion Energy Systems (“Orion”) implemented a wellness program that included health screenings and disability related inquiries. The ADA prohibits medical examinations and inquires unrelated to employment, unless they are voluntary. The EEOC alleges that Orion’s wellness program did not qualify as voluntary under the ADA because one employee who refused to participate was forced to bear the entire cost of her health coverage premium and was ultimately terminated. “Employers certainly may have voluntary wellness programs,” stated John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing…

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Auto Body Shop Antitrust Cases Consolidated in Florida

On Friday, the Judicial Panel on Multidistrict Litigation ordered five antitrust cases brought by numerous auto body shops in five separate federal districts—including the Southern District of Indiana—consolidated in the Orlando Division of the United States District Court for the Middle District of Florida. (Full disclosure: The Bose McKinney & Evans team of Brian Jones, Curtis Jones, and Joel Nagle represents one of the defendants in the Indiana antitrust case.) The order is attached below.

As the Panel noted, the plaintiffs in the cases are “principally individual collision repair shops in five states. They allege a conspiracy in the automobile insurance industry to suppress the reimbursement rates for automobile collision repairs, in violation of Section 1 of the Sherman Antitrust Act and various state laws.” Further,

This litigation involves allegations of a complex anticompetitive conspiracy among the nation’s leading insurance carriers and dozens of regional companies, as well as allegations that the databases of three third-party information services companies—ADP, CCC, and Mitchell—played a substantial role in facilitating the alleged scheme.

Collectively, the plaintiffs sued over 80 insurers. In response to the plaintiffs’ motion to consolidate all pending cases in the Southern District of Mississippi, the insurers’ universally opposed consolidation in Mississippi, but varied as to where the cases should be consolidated, if at all.

Ultimately, the Panel found that consolidation “will offer the benefit of placing all related actions before a single judge who can structure pretrial proceedings to accommodate all parties’ legitimate discovery needs while ensuring that common witnesses are not subjected to duplicative discovery demands.” Because the five cases involved common questions of fact, “centralization of the actions on the motion in the Middle District of Florida will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”

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IRS Adjusts Affordability Percentage Under Employer Mandate

Another excellent health insurance post from our colleagues at the Bose Employee Benefits Blog.

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Conflicting Federal Rulings Issued Today on ACA

Brian Jones:

As I mentioned in my earlier post, I’m out of the office, so of course there were not one, but two significant rulings today. Fortunately, our sister blog, the Bose Employee Benefits Blog, has as excellent post on these two cases, which I thought was worth sharing here.

Originally posted on Bose Employee Benefits Blog:

Earlier today, two circuits of the U.S. Court of Appeals handed down conflicting rulings regarding the legality of insurance subsidies offered in connection with federally facilitated exchanges. The controversy surrounding these subsidies involves language found in the Affordable Care Act (“ACA”) which provides that subsidies are available to individuals purchasing insurance through exchanges “established by the State.” The IRS interpreted this language broadly to allow for subsidies to be offered with both state and federally facilitated exchanges.  The plaintiffs in both cases believe that the IRS exceeded its authority in expanding subsidies to states with federally facilitated exchanges, thereby unfairly exposing applicable large employers in those states to shared responsibility penalties.

In Halbig v. Burwell, the U.S. Court of Appeals for the District of Columbia held that the language of the ACA allowing for insurance subsidies in state operated exchanges did not apply to federally facilitated exchanges. However, only…

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Breaking: D.C. Circuit Nixes ACA Premium Subsidies

(Of course there would be breaking news while I’m out of the office…)

In any event, the D.C. Circuit this morning nixed the premium subsidies at the heart of the Affordable Care Act, effectively taking the “affordable” out of the Act. Click here for the opinion.

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Brian Jones Presents at IndyBar’s “Discoverability of Social Media” Seminar

Today, Brian Jones of Bose McKinney & Evans LLP and Elizabeth Lally of Rubin & Levin, LLP, discussed the “Discoverability of Social Media” at the Indianapolis Bar Association’s headquarters in Indianapolis. Here is a pdf of the presentation:

Be sure to share with all your friends–even those who keep posting those incriminating “duck-face” selfies…


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It’s a Wrap: The Final Report on the 2014 Indiana General Assembly

The 2014 Indiana General Assembly has finished it its work for this session. Our good friends at Bose Public Affairs Group have issued their Final Report that summarizes all of the developments for this session.

Insurers will be interested in the following bills:

  • SEA 36 – Probate, Trust and Transfer on Death Matters provides, in pertinent part, that entities provided with a small estate affidavit must respond to a small estate affidavit claim within 30 business days. If they fail to respond within 30 business days a court may award the claimant attorney’s fees and costs. The act contains a carve-out for insurers and instead requires insurers to respond in a manner consistent with IC 27.
  • SEA 220 – Unclaimed Life Insurance Benefits requires insurers to perform biannual comparisons of its in-force life insurance policies, annuity contracts and retained asset accounts against the Social Security Administration’s Death Master File or a database as inclusive to help with the accurate administration of unclaimed death benefits.
  • SEA 294 – Worker’s Compensation contains more restrictive language relative to repackaged drugs, clarification with respect to the definition of a medical service provider, prohibits double billing for implants and allows corporate officers to exempt themselves from worker’s comp coverage.
  • HEA 1020 – Study of Tax Credits at one point in the session the act contained language which would have sunset numerous tax credits (including the Indiana Insurance Guaranty Association tax credit and the Indiana Life and Health Insurance Guaranty Association tax credit) on January 1, 2020. Similar sunset language was also in HEA 1266 and SEA 367. However, instead of sunsetting the credits, the legislature decided to continue studying all tax credits via HEA 1020 by requiring the commission on state tax and financing policy to review, analyze, evaluate and report on all tax credits at least once every 5 years until the section expires December 31, 2023.
  • HEA 1058 – Electronic Delivery of Insurance Notices and Documents provides for the electronic delivery of insurance notices and documents instead of other modes of delivery otherwise required for such notices and documents. The act requires a recipient’s consent to electronic delivery and a method to withdraw consent. It also includes provisions regarding electronic posting of documents on an insurer’s website.
  • HEA 1059 – Motor Vehicle Financial Responsibility makes various changes to the motor vehicle financial responsibility law, including the: (1) definition of “registration” to include the license plate issued in connection with the registration of a vehicle; (2) requirement of proof of financial responsibility and reinstatement fees; (3) suspension of a registration as a consequence of operation of the vehicle without financial responsibility in effect; and (4) requirement of proof of future financial responsibility for five years related to operating a vehicle without financial responsibility in effect. The introduced version of this act was prepared by the interim study committee on insurance.
  • HEA 1206 – Insurance Matters an IDOI omnibus bill which does the following: (1) removes a requirement for life insurers to submit individual investments to the Department of Insurance; (2) removes a requirement that a foreign or alien insurer submit an application for admission to do business in Indiana in duplicate; (3) changes from March 15 to July 1 of each year the due date for certain insurance holding company filings; (4) adopts ORSA; (5) specifies requirements for motor vehicle service contracts; (6) removes IC 27-1-13-16(c) regarding the requirement to stamp an envelope if residential policy coverage has been reduced, restricted or removed; (7) requires a $2,500 registration fee for captive insurers doing business in Indiana; and (8) provides immunity for insurance producers in relation to electronic delivery or non-delivery of an insurance document or notice between the insurer and consumer.

And all was quiet…for now

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