On March 15, 2017, a jury in the District Court for the Northern District of Mississippi returned a defense verdict in favor of Peco Foods, Inc. and against 55 plaintiffs. The underlying lawsuit involved nuisance and negligence-based claims brought by residents of the Egypt, Mississippi community related to Peco Foods’ contracts with two broiler chicken farms in the area. Specifically, the residents complained that the farms were a nuisance because they allegedly produced excessive odors, flies, and truck traffic. Plaintiffs also claimed that Peco Foods was negligent in contracting and continuing its contractual relationship with the farms. After a 13-day trial that involved 70 witnesses, the jury found that none of the 55 plaintiffs had established their claims against Peco Foods and returned a defense verdict. Judge Michael Mills presided over the trial. During closing argument, the Plaintiffs’ counsel asked the jury to award $11 million in monetary damages.
Watts Ueltschey Presents to the Mississippi Association of Petroleum Landmen
Watts Ueltschey was a featured speaker at the March meeting of the Mississippi Association of Petroleum Landmen on March 13, 2017. His presentation discussed Inheritance by Illegitimates in Mississippi and may be viewed here.
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Mississippi Commission on Environmental Quality Summary of Meeting Held November 10, 2016
The Mississippi Commission on Environmental Quality convened at 9:00 a.m. on November 10, 2016, at the offices of the Mississippi Department of Environmental Quality in Jackson. The Commission approved minutes from the previous meeting held on August 25, 2016. Following a prepared agenda, items considered were as follows:
Titan International, Inc. and The City of Natchez – Natchez, Adams County
Note – This agenda item was for informational purposes only.
Staff reported that, pursuant to the Commission’s delegation regulations, the Executive Director of MDEQ approved the Environmental Covenant between the Commission and the City of Natchez regarding the remediation of property located at 89 Kelly Street, Natchez, MS. The Restricted Use Agreed Order between the Commission, Titan International, Inc. and the City of Natchez was also approved by the Executive Director. Environmental Site Assessments have revealed a release of Trichloroethene and petroleum compounds impacting groundwater at concentrations in excess of Target Remediation Goals (TRGs). Therefore, remediation of the site is necessary. Staff evaluated the Environmental Covenant and Restricted Use Agreed Order and believes that, with the conditions and restrictions contained within, the site will comply with applicable State laws and standards and will be protective of the public health and the environment.
Commission Rescind Brownfield Agreement and Accompanying Environmental Covenant – Wal-Mart Real Estate Business Trust – Pascagoula, Jackson County
A motion to approve a postponement of this matter until the next commission meeting was made, seconded and approved unanimously.
Delegation of Commission’s Authority to Executive Director
Staff requested and the Commission delegated its authority, to apply for, receive, and expend any federal or state funds or contributions, gifts, devices, bequests, or funds from any other sources to the Executive Director.
Adoption of amendments to 11 Mississippi Administrative Code, Part 2, Chapter 1, “Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants” and a Revision to the Mississippi State Implementation Plan for the Control of Air Pollution
Staff recommended and the Commission approved amendments to 11 Miss. Admin. Code, Pt. 2, Ch. 1. These amendments involve:
- Amendments to Rule 1.10 and an associated Revision to the State Implementation Plan for Control of Air Pollution (SIP Revision) regarding startups, shutdowns, and/or malfunctions of air emissions equipment in order to comply with federal requirements of the U.S. Environmental Protection Agency. This action is a response to a USEPA SIP Call to address a Finding of Substantial Inadequacy with the existing SIP provisions for Upsets, Startups, and Shutdowns. The amendments and associated SIP Revision are intended to address state regulation inconsistencies with recent changes to USEPA policies for startup, shutdown, and malfunction events.
- Amendments to Rules 1.6.C. and 1.8.A to update the state adoption, by reference, of recent amendments to Federal New Source Performance Standards (NSPS) in 40 CFR Part 60, Federal National Emission Standards for Hazardous Air Pollutants (NESHAP) in 40 CFR Parts 61 and 63, and Federal Consolidated Air Rules (CAR) in 40 CFR Part 65. This action will update the federal delegation to the state.
- Deletion of Rule 1.14, “Provisions for the Clean Air Interstate Rule” (CAIR) since the federal provisions referenced in Rule 1.14. have been revoked and are no longer in effect.
A public hearing was held on September 16, 2016 following a 30-day public comment period. Commenters requested additional time to submit comments and the comment period was extended until October 6, 2016. Several comments were received. A copy of the public hearing transcript including all comments submitted was provided to the Commission.
FY 2018 Title V Fee Recommendation -Approval to Proceed to Public Notice of Hearing
Staff provided the Commission a copy of the draft report containing the Title V Advisory Council’s Title V fee recommendation for the upcoming fee year. Staff requested approval to hold a public hearing to receive comments regarding the proposed fee and to proceed with public notice of the hearing. After the public hearing has been held, the public comment period has ended, and comments have been reviewed, staff will bring the fee recommendation back before the Commission for final action. Commission approved Staff’s request to proceed to Public Notice of Hearing.
CERTIFICATIONS APPROVED
Asbestos: 386 certifications
Lead Paint: 144 certifications
Underground Storage Tanks: 38 certifications
EMERGENCY CLEAN-UP EXPENSES
There were 20 emergency expenditures since the last report.
ADMINISTRATIVE ORDERS APPROVED
Twenty six (26) administrative orders were issued by the Executive Director and approved by the Commission since the last report.
OTHER BUSINESS
Mr. Roy Furrh, MDEQ General Counsel, advised the Board that key employees at MDEQ had recently filed forms with the Department of Interior – Office of Surface Mining and Reclamation and that members of the Commission would also have to complete similar forms.
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EEOC Final Rules on Title I of the ADA and Title II of the GINA in relation to Employee Wellness Programs
AMERICANS WITH DISABILITIES ACT
The EEOC recently issued its final rule (“Final Rule”) on wellness programs (i.e.,
employee health programs) under Title I of the Americans with Disabilities Act (“ADA”).¹
These wellness programs may be offered within, or outside of, an employer’s group health plan.
The requirements of the Final Rule apply only to employee wellness programs that require
employees to respond to disability-related inquiries and/or undergo medical examinations. The
provisions of the Final Rule regarding notice and incentives will apply to employee wellness
programs as of the first day of the first plan year on or after January 1, 2017, for the health plan
used to determine the level of permissible incentive. The remainder of the Final Rule is effective
now, as it simply clarified existing regulations.
In the Final Rule, the EEOC responds to a number of comments from the public
regarding the operation of employee health programs. It specifically rejects commenters’
requests that an employee be allowed to provide a general certification or attestation that they are
receiving medical care for particular health risks factors in lieu of completing a health risk
assessment (“HRA”) or undergoing a medical examination. According to the EEOC, allowing
such an alternative would limit the effectiveness of the wellness programs as envisioned by the
ACA. The EEOC also declined to incorporate an “affordability standard” into the Final Rule
with respect to the incentive limits. Instead, it extended the 30% limit (under HIPAA and the
ACA) and agreed with the Treasury Regulations that the affordability of eligible employersponsored
coverage should be determined by assuming that employees will fail to satisfy the
requirements of a wellness program.
Not surprisingly, several commenters asked the EEOC to clarify what it means for a
wellness program “to be a part of, or provided by, a group health plan.” However, instead of
providing factors that would answer that question, the EEOC determined that all provisions of
the Final Rule should apply to wellness programs, regardless of whether they are offered within,
or outside of, an employer-sponsored group health plan, when the program includes disabilityrelated
inquiries and/or medical examinations.
The EEOC noted that wellness programs that include “a measurement, test, screening or
collection of health-related information without providing results, follow-up information, or advice designed to improve the health of participating employees would not be reasonably
designed to promote health or prevent disease, unless the collected information actually is used
to design a program that addresses at least a subset of conditions identified.” Furthermore, the
EEOC concluded that imposing a penalty solely based on an employee’s failure to achieve a
health outcome would, in many cases, discriminate based upon a disability.
Voluntariness
The Final Rule also clarifies that a wellness program is voluntary not simply because it
gives employees an option to participate, but also because offering an incentive of up to 30% of
the total cost of self-only coverage does not, without more, make a wellness program coercive.
While an employer may require an employee to pay more for a certain type of coverage if the
employee does not participate in a wellness program that includes disability-related inquiries or
medical examinations, an employer may not deny access “to a benefit available by virtue of
employment.” In other words, an employer cannot condition participation in a group health
plan upon participation in a wellness program, including an HRA. The EEOC expressly
rejected a commenter’s proposal to allow wellness program participants the opportunity to
participate in a comprehensive health plan while offering non-participants a less comprehensive
plan. Instead, the EEOC proposed that a non-participant could pay more for the same
comprehensive health plan by virtue of not receiving incentives of up to 30% of the total cost of
self-only coverage.
Notice Requirements
All wellness programs, whether a part of a group health plan or not, that require
employees to respond to disability-related inquiries and/or undergo medical examinations must
provide employees with a notice, in plain language, that explains the medical information that
will be collected, how it will be used, who will receive it, the restrictions on the disclosure of the
information, and the methods that will be used to prevent improper disclosure. Existing
notifications must be revised, or a new notification developed, when current notifications do not
meet these requirements. The EEOC will provide a sample notice in the next few weeks.
Incentives
The EEOC confirmed that an employer may offer incentives up to a maximum of 30% of
the total cost of self-only coverage (including the employee’s and the employer’s contribution),
whether as a reward or penalty. In cases where an employer offers a single group health plan but
an employee who does not enroll in the plan may still participate in the wellness program, the
employer may offer an incentive of up to 30% of the total cost of self-only coverage under the
plan. Where an employer has more than one group health plan, but participation in a wellness
program again does not depend on the employee’s enrollment in the plan, the employer may
offer an incentive of up to 30% of the total cost of the lowest cost self-only coverage under a
major medical group health plan offered by the employer. If the employer does not offer a group
health plan or group health insurance coverage, but an employee may participate in a wellness
program, the employer may offer an incentive of up to 30% of the cost that would be charged for
self-only coverage (for a 40-year-old nonsmoker) in the second lowest cost Silver Plan available
through the state or federal Exchange in the location that the employer identifies as its principal
place of business.
Non-financial and de minimis incentives must be included within the calculation of the
30% cap, despite any perceived difficulty in valuing them. Employers can use any “reasonable”
method to determine the value of in-kind incentives (e.g., a premier parking space).
The Final Rule does not address incentives wellness programs may offer for dependent or
spousal participation because the ADA’s prohibitions on discrimination apply only to applicants
and employees. Nonetheless, employers should be sure to abide by the requirements of Title II
of GINA (discussed herein) in collecting information on an employee’s family member in
exchange for incentives.
With smoking cessation programs, a covered entity may offer incentives as high as 50%
of the cost of self-only coverage, depending upon the type of program. The EEOC reiterates that
the interpretive guidance for the PHS Act states that “because any biometric screening or
other medical procedure that tests for the presence of nicotine or tobacco is a medical
examination under the ACA, the 30 percent incentive limit would apply to such a screening
or procedure.”² On the other hand, smoking cessation programs that simply ask employees
whether or not they use tobacco do not ask disability-related inquiries or include medical
examinations, and therefore may offer incentives of up to 50% of the cost of self-only coverage.
Confidentiality/Privacy
Medical information collected through an employee health program may only be
provided to a covered entity in aggregate terms that do not disclose the identity of specific
individuals, other than as needed to administer the health plan or as specifically permitted under
29 C.F.R. § 1630.14(d)(4). A covered entity is also prohibited from requiring an employee to
agree to the sale, exchange, transfer, or other disclosure of medical information (except as to
carry out the operations of the wellness program) or to waive any confidentiality provisions as a
condition of participating or earning incentives.
GENETIC INFORMATION NONDISCRIMINATION ACT
Title II of the Genetic Information Nondiscrimination Act (“GINA”) applies to
employers with 15 or more employees. In the context of GINA, “genetic information” is
interpreted to mean information about the manifestation of disease or disorder. The Title II Final
Rule (“Final Rule”) does not incorporate a restriction on the collection of genetic information to
the minimum necessary for the employer-sponsored wellness program activities or any limitation
on accessing genetic information from other sources. Rather, in the Final Rule, the EEOC
reiterates that employee wellness programs that collect genetic information must be “reasonably
designed”³ to promote health and prevent disease. Employers can request, require, or purchase
genetic information as part of health or genetic services only when these services are reasonably
designed to promote health or prevent disease.
The provisions of this Final Rule apply regardless of whether a wellness program is
offered as a part of, or outside of, an employer-sponsored group health plan.
The provisions of 29 C.F.R. § 1635.8(b)(2)(iii) on wellness program inducements will
apply prospectively, beginning on the first day of the first plan year on or after January 1, 2017,
for the health plan used to determine the incentives.
Inducements and Spouse Participation in Wellness Programs
A covered entity may offer an inducement to an individual for completion of a health
risk assessment, including one that has questions about family medical history or other genetic
information.4 The inducement, however, must be made available regardless of whether or not
the participant answers questions regarding genetic information, and the health risk assessment
must be administered in connection with the spouse’s receipt of health or genetic services offered
by the employer. Inducements otherwise may not be offered for individuals to provide genetic
information.
The same general inducement limits apply under the GINA Final Rule as the ADA Final
Rule (i.e., 30% of the total cost of self-only coverage) and are applied individually to the
employee and spouse. The portion of an inducement attributable to the spouse’s provision of
information about his or her manifestation of disease or disorder does not have to be paid to the
spouse but it may be paid in whatever way the remaining portion of the inducement is made.
As in the ADA Final Rule, the EEOC declines in the GINA Final Rule to adopt a medical
certification option in alternative to providing information about the manifestation of disease or
disorder when participating in an employer wellness program. The EEOC also declined to adopt
commenters’ suggestion that the employer only be required to comply with authorization
requirements when more than de minimis inducements are offered for genetic information in a
wellness program. “Inducements” include both financial and in-kind inducements, though
employers have flexibility in valuing in-kind incentives.
Medical Information of Employee’s Children
The Final Rule expressly prohibits inducements in return for information about the
manifestation of disease or disorder in an employee’s children and makes no distinction between
adult and minor children or between biological and adopted children. While an employee’s
children are permitted to participate in an employer’s wellness program on a voluntary basis, the
program may not offer any inducement in exchange for information about the manifestation of
disease or disorder in the child.
Confidentiality
The Final Rule reiterates that employers and other covered entities maintaining genetic
information must keep the information in medical files that are separate from personnel files, and
the information must be treated as confidential. Genetic information can only be disclosed in six
very limited circumstances set forth in 29 C.F.R. § 1635.9, none of which would likely occur
except for an employee’s request for the information. When employers obtain genetic
information as a part of an employer-sponsored wellness program, the authorization signed by
the participating individual must explain the restrictions on disclosure of the information; that the
individually identifiable genetic information is provided only to the individual receiving the
services and the providers involved in services; and that individually identifiable genetic
information is only available for health or genetic services and is only disclosed to the employer
in aggregate terms.
A covered entity may not condition participation in an employer-sponsored wellness
program or an inducement on an employee, his or her spouse, or other covered dependent
agreeing to the sale, exchange, sharing, transfer, or other disclosure of genetic information,
except where expressly permitted under the regulations
Notice/Authorization Requirements
Employers must provide authorizations to individuals to be signed prior to sharing
genetic information as part of health or genetic services, including prior to HRAs for employees
and spouses. The authorization must explain that individually identifiable genetic information is
provided only to the individual receiving the services and the licensed health care professionals
or board certified genetic counselors involved in providing the services and that individually
identifiable genetic information is only available for purposes of the health or genetic services.
The information cannot be disclosed to the employer other than in aggregate terms.
This material is intended for general information purposes only and does not constitute legal advice. For legal
issues that arise, legal counsel should be consulted.
1 Other federal laws, including Title II of the Genetic Information Nondiscrimination Act and the Health
Insurance Portability and Accountability Act, apply to wellness programs that are offered through group health plans
as well.
2 “Although the fact that someone smokes is not information about a disability, the ADA’s provisions
limiting disability-related inquiries and medical examinations apply to all applicants and employees, whether or not
they have disabilities. Moreover, whatever benefit smoking cessation programs that are part of wellness programs
may have, the Commission can discern no reason for treating medical examinations to detect the use of nicotine
differently from any other medical examinations when the ADA makes no such distinction.” 81 Fed. Reg. 31136.
3 Satisfaction of the “reasonably designed” standard is determined based on a review of the relevant facts
and circumstances. However, to meet the standard, the program must “have a reasonable chance of improving the
health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for
violating Title II of GINA or other laws prohibiting employment discrimination, or highly suspect in the method
chosen to promote health or prevent disease.”
4 The health risk assessment must include a requirement that the individual provide prior, knowing,
voluntary, and written authorization, and the authorization form must describe the confidentiality protections and
restrictions on the disclosure of genetic information. See 29 C.F.R. § 1635.8(b)(2)(iii).
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HHS Releases Guidance on Sharing Mental Health Information
healthcare and medical concept – doctor and nurse with patient in hospital
Recently, the U.S. Department of Health and Human Services (“HHS”) released guidance on the HIPAA Privacy Rule and sharing information related to mental health treatment. While the information provided in the guidance was not new, HHS provided concise, practical advice on sharing protected health information of minors and individuals receiving mental health treatment.
HHS reiterated that a health care provider is permitted to communicate with a patient’s family, friends, or others who are involved in the patient’s care about the patient’s protected health information in a limited number of circumstances. Typically, upon receiving treatment at a hospital or other health care entity, patients are provided an opportunity to designate other individuals, if any, who may be contacted with information regarding the patient’s health care treatment. At other times, patients may indicate their consent, express or implied, to a provider sharing information with family or friends who are present in a treatment room with the patient when the provider discusses the patient’s health care treatment. Finally, when a patient is not present or is incapacitated, HHS acknowledged that a health care provider can share the patient’s information with family, friends, or others involved in the patient’s care or payment of care as long as the provider has determined, based on his professional judgment, that it is in the patient’s best interest to disclose the information. However, for disclosures to individuals other than the patient, a provider should always limit such disclosure to the protected health information that is directly related to that individual’s involvement in the patient’s care or payment for care.
HHS also noted that special considerations are given under HIPAA to certain protected health information regarding mental health treatment. Subject to a few exceptions, an individual must give a separate authorization for disclosure of psychotherapy notes even when the psychotherapy notes are being disclosed to another health care provider. The Privacy Rule refers to psychotherapy notes as those notes recorded by a mental health professional during a private counseling session or a group, joint, or family counseling session. Psychotherapy notes are kept separate from the remainder of a patient’s medical records. These notes, however, may be disclosed without authorization if required by law, such as in the case of mandatory reporting of abuse or mandatory “duty to warn” situations in which threats of serious and imminent harm are made by the patient. In situations where a health care provider believes a patient may harm himself or others, the Privacy Rule permits the provider to disclose necessary information about the patient to law enforcement, family, or other persons when the threat of serious and imminent harm is present and the health care provider believes in good faith that a warning is necessary to prevent or lessen the imminent threat to the health or safety of the patient or others.
In its guidance, HHS also addressed when a patient is considered “incapacitated” under the Privacy Rule such that the patient does not have the capacity to agree or object to a health care provider sharing information with the family member. HHS stated that the permission to make disclosures in a patient’s best interests “clearly applies when a patient is unconscious.” Nonetheless, it noted that there may be other situations when a health care provider, using his professional judgment, determines the patient does not have the capacity to agree or object to the sharing of protected health information and that the sharing is in the patient’s best interests. For example, when a patient is suffering from temporary psychosis or is under the influence of alcohol or drugs, a patient may not be considered to have the capacity to make a decision regarding disclosures. However, in these circumstances, HHS encourages the physician to take the patient’s prior expressed preferences regarding disclosures of their information into consideration. Further, if and when a patient regains capacity, the provider should offer the patient the opportunity to decide whether future disclosures would be authorized.
To review the complete guidance from the HHS, click here.
Treasury Issues Employer Mandate Regulations
On Monday, February 10, the Treasury Department and Internal Revenue Service issued long-awaited final regulations implementing the Affordable Care Act’s employer shared responsibility rules. Commonly known as the “employer mandate,” the Act provides that applicable large employers may be penalized for failing to offer their full‐time employees an opportunity to enroll in health coverage, or if the coverage offered is unaffordable or does not provide minimum value. (Applicable large employers are those who employed an average of at least 50 full-time employees on business days during the preceding calendar year, and employers with fewer employees are not subject to the employer mandate rules.)
Originally slated to become effective January 1, 2014, the Treasury Department and IRS issued proposed regulations in December 2012. A few months later, though, the White House announced a one-year delay in enforcement of the employer mandate. For the most part, the 227-page final regulation should adopt the earlier proposed rules, though not without a few notable changes:
- One-year delay for midsize employers. The employer mandate will only apply to employers with 100 or more full-time employees in 2015. Employers with between 50 and 99 full-time employees won’t have to comply with the employer mandate until 2016, although they will have to certify that they are not cutting employees or reducing hours for purposes of falling below the 100 employee mark.
- Relaxed requirement for very large employers. The proposed regulations required applicable large employers to offer coverage to at least 95 percent of full-time employees to be considered compliant with the employer mandate. The final regulations relax the requirement, phasing in the percentage of full-time employees that must be offered coverage from 70 percent in 2015 to 95 percent in 2016 and beyond.
- Volunteers not counted as full-time employees. There had been some debate in Washington over whether volunteers (particularlyvolunteer firefighters and emergency responders) would count as full-time employees. Commenters explained that volunteer service would be discouraged if employers were required to count volunteer hours when determining whether individuals are full-time employees. Therefore, the final regulations clarify that service hours do not include hours worked as a “bona fide volunteer.”
- Other. There are several smaller adjustments. Many of the fine-tunings relate to how employers are required to calculate employee work hours. Seasonal employees, student work-study programs, adjunct faculty, and other employment situations present unique challenges, which the final regulations address.
Click here for the Treasury Department’s press release.