New Final HIPAA Regulations Released

Ashley Kaplan, G.Neil Compliance Attorney

New HIPAA regulations were issued yesterday. The new rules clarify HIPAA's non-discrimination provisions and provide new guidelines on wellness plans (e.g., sponsoring employee memberships at fitness clubs, offering incentives for quitting smoking, etc.). While the effective date of the HIPAA regulations is February 12, 2007, employers have until July 1, 2007 to comply (the "first day of the company's plan year beginning on or after July 1, 2007").

If you have an existing G.Neil HIPAA product, you are still in compliance. The new HIPAA regulations add and clarify information that's addressed in our HIPAA Portability Guide so we’ll be working on updates along with some other ideas we have for products to help you stay in HIPAA compliance. Stay’ll hear about it first, right here.

And, as always, if you’ve got any specific suggestions for products you’d like to see, please feel free to share your ideas with us here.


The New E-discovery Regulations...who, me?

As the eCommerce Manager, I get every newsletter ever created that has to do with the Internet. Typically, I do a quick scan and move on...but this article caught my eye: New Rules Force Firms to Track E-Mails, IMs. The article talks about the new amendments to the Federal Rules of Civil Procedure (FRCP) relating to e-discovery regulations that went into effect on Friday, December 1.

Immediate panic disorder sets in - do I just confess that I emailed an "I love you" to my sweetie, downloaded a coupon for free Wendy's french fries and bookmarked the Broward County Schools website, this morning alone?

So what now? Do I call the IT or Legal Department to see if they're aware of this and taking steps to make sure we're in compliance with the law? Does this even apply to my company? I know what you were thinking...they don't mean me. I'm not a big public company. Sheesh, I don't even have an IT or Legal Department.

Right now, I couldn't tell you the answer. But don't worry, I've already forwarded it on to IT and Legal to find out. And I also sent it to the Product Development Legal Research team...I figured if I'm unclear whether it applies to me or not, then you might need some help, too.

In the meantime, what the heck do you do when you hear about some new law that may or may not be related to your business? How often do you blow it off thinking it's for the Enrons of the world or jump on the phone to your lawyer to make sure he's got you covered?

- Helene Kopel, eCommerce Manager

Criminal History — A Hiring Deal Breaker?

Has this ever happened to you? You think you've found the perfect candidate for an open position — but when you settle down to take a better look at the application you discover that the criminal conviction question has been checked “yes.”

OR you get deeper into the process, run a background check and a prior conviction shows up. What do you do when you discover a candidate has a criminal history? Pass over this person automatically? Hire them and hope for the best?

We all know that our justice system deems us "innocent until proven guilty." That is why we base decisions on conviction records rather than arrest records. Also...and here's where it gets's a sad but true fact that minorities are arrested at a higher rate than non-minorities. So, not hiring a candidate based on arrest record alone could prove to be discriminatory.

In my case, half the time I've hired the person and the other half, I haven't. I take into consideration whether or not the applicant was truthful on the application (I personally don't hire if he/she is not), the nature of the crime (peace protest or murder conviction) and how recently it was committed. I also consider whether or not the offender might be a risk in my particular workplace.

Of course, the final decision is yours. Just keep in mind you'll need to comply with "pesky little issues" such as negligent hiring, the Fair Credit Reporting Act and any applicable state laws regarding background checks and permissible questions on applications.

- Maurice Rosenberg, Human Resources Manager

Confronting Poor Performers

Bob, your accounting manager, comes rushing into your office to tell you he's got to fire Joe, the accounts receivable clerk, immediately. Apparently, Joe can't get anything right and if something isn't done, the whole company is going to go down the drain.

UGH!! Sound familiar?

After presenting Bob with the Oscar for "Best Actor in a Workplace Drama," you ask him if he's written up Joe for any specific incidences, or if he's shared Joe's performance issues in his last annual review. Bob gives you a blank stare and tells you he's got too much paperwork to handle as it is. Translation: No. And when you pull Joe's previous performance appraisals from your files, you get every indication that Joe's work has been nothing short of glowing.

Can you terminate Joe? Yes. Should you terminate Joe? Maybe. Is it a good idea to terminate Joe today? A resounding NO.

I've seen it time and time again — managers who are afraid they won't be liked if they give any negative feedback. But if you don't tell employees what's wrong, how can they do anything to improve? I've found that most employees would rather get honest feedback — for the benefit of their own career development — than be left in the dark. Plus, you want to inform them of the next steps should they not improve, so they're not in complete shock if/when you escort them out the door.

Here's more inspiration for you: This could save your company from a lawsuit if Joe decides to sue for discrimination. Although most states let you fire employees "at-will" with no reason or paperwork, it's not a smart move. Joe may claim Bob discriminated against him — even if he knows it's not true. And without the proper paperwork (counseling or warning forms and/or performance reviews with specific expectations), your company may not have any proof to defend itself in court.

My suggestion? Do yourself, your company AND your employees a big favor and deal with the performance issues as they occur — and document, document, document. It shows you are a great manager who not only cares about your company, but also your employees.

- Maurice Rosenberg, Human Resources Manager

I-9 Confusion

Recently, I discovered some very, quirks, let's call them...about the Form I-9.

First of all, there is a typo in List A — #9 reads Form I-571, not 1-571. It gets better, though...there are actually forms in this list that are no longer considered acceptable documentation to establish identity and employment eligibility.

How did I figure this out? I read it on the U.S. Citizenship and Immigration Services website. Don't you visit that website daily to keep up with what may be wrong on their forms?

Many "clarifications" to acceptable List A documents can be found there, including the fact that a bunch of forms like the Form I-766 (Employment Authorization Document), Certificate of U.S. Citizenship, Certificate of Naturalization, Unexpired Reentry Permit and Unexpired Refugee Travel Document are all out. Plus, Form I-151 is out, but Form I-551 is still in.

This is how we find out that we can't accept half the documents on the list?! Confused? Me too! How many hardworking decent keepers of the I-9s just happen to wander onto the U.S. Citizenship and Immigration Services website and come across this information?

And how can we be held accountable for mistakes on the I-9 when we're following the instructions right on the form itself?! It makes no sense.

Well, according to language buried in regulations passed several years ago, the government has "discretion" not to penalize us for using documents from the current list — at least until the form is officially revised. But the way I see it, we depend on the government to keep us informed about important changes like this — and in this case, that obviously isn't happening.

The next question, then, is when will the I-9 be revised to be just a little more user friendly? Your guess is as good as mine. Stay tuned for I-9 updates in the (hopefully near) future. Keep checking back here, too, as I'll be sure to keep you posted.

In the meantime, has anyone else come across something like this with another government-issued form? Maybe if we start sharing our discoveries, we can help keep each other informed. At the very least, it will remind us that we're not alone in our confusion AND in our never-ending quest for complete compliance.

- Maurice Rosenberg, Human Resources Manager

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