Employers in need of reporting injuries to OSHA are quickly approaching an important date  – March 2, 2020. Download our Occupational Health & Safety Bulletin for detailed information and helpful links to ensure your company stays in compliance.

Deadline for Electronic Reporting of OSHA 300A Data

Recently, our claims team at Newfront hosted a webinar on Workers Compensation Trends and the Impact on Employers Best Practices. Joining Newfront were panelists Anne E. Hernandez, James M. Cotter, and Katherine A. O’Brien from the law firm Mullen & Filippi. 

The first topic of conversation included applicant attorneys filing for venues that are hundreds of miles away from where an injured worker lives and works.  This oftentimes, creates a need for defense firms to petition for a change of venue. There is only a 25-day window to have the venue changed which starts as of the date of the filing of an application of adjudication not when a claims administrator or employer receives the notice. After the 25-day window, it is possible to petition for a change of venue based on good cause, however, it can be difficult to meet that standard.    

The second topic covered the cross section between workers’ compensation claims-life cycle and other employment practices including the interactive process.  Communication between the insurance claims administrators, medical providers, and employers is important to promoting return to work and case resolution. It is equally important to be cognizant of the fact that all communications (including emails) are discoverable. An offer by the employer to discuss work restrictions and possible accommodations with an injured worker should be made even if an employer has a reason to believe it will not be responded to or the employee will refuse. Meetings should be kept clean, straightforward, and documented.  Employers should contact their labor attorneys on protocols and practices to address both temporary and permanent work restrictions. 

For the third topic the audience was reminded that injured workers can get up to 104 weeks of temporary total disability, even up to 240 for qualifying cases, if supported by medical opinion. If an employee is back at work, even if on modified duties, they are not eligible to receive workers compensation disability benefits to attend medical appointments. When an injured workers’ employment status changes due to retirement, resignation, or termination, it is important to document and distinguish whether they are retiring or resigning because of the injury or for other reasons. If employees are terminated for cause, theoretically they are not entitled to temporary disability. However,a judge may be able to deem the basis for the termination as not good cause as it relates to owing disability benefits under workers’ compensation.  It is crucial to have written documentation of the termination process and reasons. Company-wide policies should be consistently applied amongst all employees. 

The last two topics of conversation covered the statute of limitations relative to an injured workers’ ability to file a claim and the issue of the derivative injury doctrine.  Regarding the statute of limitations, in most instances, an injured worker has one year to file a claim; however, it can be dependent on when a claim form is provided to the employee which should be triggered when an employer has either actual or constructive knowledge of an injury.  Constructive knowledge can be when an employer has a reasonable belief that the injury could be work related. Employers should not be afraid to ask the worker how they were injured and whether it occurred outside of work. Once again, it is imperative that employers document the employee’s file. 

Lastly, a recent civil case has created concern in the industry that a long-standing principle in workers’ compensation called the derivative injury doctrine may be diluted when an employee who became infected with COVID was granted the ability to sue for the wrongful death of a spouse against their employer by the Superior Court of California.  Many questions are still to be answered, but it appears as though the findings are narrow in scope and applicable to COVID.  Employers should continue to be vigilant regarding COVID as one of the reasons for the suit is the allegation of the employer failing to follow COVID prevention standards. 

Understand and navigating the Workers Compensation industry can be difficult. At Newfront, we are experts in the industry, can advocate for you, and can ensure you have the right type of policy for your business. Contact us to schedule an appointment.

Summary of a webinar Newfront hosted on the state of the current Workers Compensation market.

Workers Compensation Trends and the Impact on Employers Best Practices

Webinar_Workers_Compensation_Trends

Newfront, a tech-enabled, full-service brokerage, participated in the William Blair 5th Annual Insurance Technology Conference earlier this month. CEO and Co-Founder Spike Lipkin spoke during a panel discussion focusing on Upgrading Distribution in the industry.

“Technology is rapidly changing the landscape of the insurance industry,” said Spike. “Newfront is proud to blaze a trail as we build the modern insurance experience, combining our industry expertise and carrier relationships with technology.”

Spike was joined by other industry leaders to discuss where data makes a difference in insurance and making consumer engagement more efficient with tech stacks.

This year’s virtual conference experience offered a series of live panel discussions with experts that are shaping the insurance and banking landscape while driving technology adoption in today’s highly dynamic global environment. Attendees included a mix of institutional investors and industry executives.  

Newfront is transforming the delivery of risk management, employee experience, insurance, and retirement solutions by building the modern insurance platform. Transparent data delivered real-time translates into a lower total cost of risk and greater insights. Newfront makes insurance work for you.

Headquartered in San Francisco, Newfront has offices throughout the country and is home to more than 750 employees who serve clients across the United States and globally.

William Blair is the premier global boutique with expertise in investment banking, investment management, and private wealth management. We provide advisory services, strategies, and solutions to meet our clients’ evolving needs. As an independent and employee-owned firm, together with our strategic partners, we operate in more than 20 offices worldwide.*

*Includes strategic partnerships with Allier Capital, BDA Partners, and Poalim Capital Markets.

Bethany Hale
Chief Marketing Officer
Newfront
press@newfront.com

Newfront participated in the William Blair 5th Annual Insurance Technology Conference earlier this month.

Newfront Featured at 5th Annual William Blair Insurance Technology Conference

Recently, Newfront announced that Courtney Leimkuhler joined its Board of Directors. We introduced her, our company’s first independent Director, to the team in late July during a Town Hall where she shared her vision into the future of insurance, the role of technology, and the game-changing impact of diverse teams.

We are excited for her continued partnership and guidance as we modernize this industry! Here are a few things we took away from her fireside chat with our CEO, Spike Lipkin.    

Insurance is one of the best kept secrets. I joined the insurance world from the New York Stock Exchange not knowing how much I would end up loving this industry. The business side was evolving quickly which fascinated me, and the culture and people were warm and welcoming even to me as a total outsider. Seeing how the traditional industry players were beginning to grapple with technology, I was hooked thinking about the potential of bringing a new way of exchanging risk and helping companies improve efficiency and the bottom line. Ultimately, I learned to keep an open mind and that a fresh perspective is always helpful.

Unusual partnerships can enable faster progress. The opportunity to truly move the needle is based on trust, willingness to think laterally, and focusing on innovation. If a team is running like a well-oiled machine, you can trust in their execution and take the opportunity to focus elsewhere. As leaders, we must align on direction, push each other to dig deep, and explore new ways of doing things. The CEO at Marsh counted on me as CFO to bring a strategic lens to how we could evolve the business, right around the dawn of insurtech. There is similarly a huge opportunity here at Newfront, that again, with the people and culture, I find very compelling.

People are the most critical aspect of insurance. While technology is certainly transforming how we do things, insurance is still about bilateral risk transfer between two parties, and therefore, I believe this industry will always require a human relationship element and judgment. Newfront intrigues me because the company has both industry-leading expertise and carrier relationships combined with industry-leading business operations and technology. Technology can and should still play a huge role in insurance, but we also must be laser focused on investing, attracting, and retaining talent into this high-touch, high-tech industry.

Diversity, Equity, & Inclusion is the right thing to do. I have become a stronger and stronger advocate for DE&I over the course of my career. As a founding partner of Springbank Collective, I’m passionate about identifying, investing in, and helping to grow the infrastructure that supports women and working families to close the gender gap. The fact that Newfront has had a long-term commitment to DE&I is super important to me. From a business perspective, competition absolutely thrives on human talent, creativity, ingenuity, and knowledge. Winning in this competitive environment comes down to who you can attract. If you don’t build an inclusive culture and commit to bringing diverse people to your team, you lose the talent war, and ultimately your business will not thrive.

Joining the Newfront team was a no brainer. The company has the right strategy, the right people, the right attitude, and the right values. I’m excited to see how the company continues to transform the industry.

Courtney, we are thrilled to have you on board and work, love, and play with us, and we look forward to our partnership throughout the coming years. Welcome! 

Courtney Leimkuhler recently joined the Newfront Board of Directors, and we introduced her to the team during a Town Hall where she shared her vision into the future of insurance, the role of technology, and the game-changing impact of diverse teams.

Courtney Leimkuhler Brings Expertise and DE&I Focus to Newfront’s Board

This article is a continuation of our Real Estate State of the Market series on earthquake insurance. Real Estate - State of the Market (Part 1) focused on earthquake insurance and the earthquake insurance marketplace.  In this article we examine some of the factors that are used in determining rates for an earthquake policy, the types of coverage offered, and deductible options. 

A variety of factors are considered when pricing Earthquake Insurance, however, here are a few criteria that can have a large impact on underwriting:

Building construction and age: Each type of building material reacts differently to seismic activity with some materials being more flexible, and thus less prone to being damaged, than others. Building age also impacts underwriting because older buildings are generally not as structurally sound as newer buildings. 

Here are the four main building construction types:

Wood Frame: Consists of all wood walls, ceiling and flooring. This is viewed favorably since wood is flexible and can sway with the seismic movement.

Joisted Masonry: Consists of masonry walls (generally, concrete or brick) with wood floors and ceilings. This is not as favorable since masonry walls are not flexible and are more prone to damage.

Masonry/Non-Combustible: Consists of pure brick, concrete, or steel frame. Steel frame is viewed favorably, as the material is ductile and can bend considerably before breaking.  Concrete and brick are brittle and tend to crack or crumble under seismic force.

Fire Resistive: Generally used in high rise buildings and has a combination of steel frame and concrete with several earthquake retrofitting measures. This is viewed very favorably due to the enhanced retrofitting involved and ability for the ability to sway with the seismic movement without being damaged.

Type of Building Foundation: This is a critical underwriting consideration, given that any shift in the ground could damage the foundation and cause the structure to collapse.  Examples of foundations that are viewed favorably by underwriters include concrete slabs; while post and pier or buildings with tuck under parking are viewed as higher risk. 

Earthquake retrofitting: Extra structural protection is a way to minimize or mitigate the damage to your building. This is especially important in older buildings, as underwriters generally view them as less structurally sound. It is important to understand the details and extent to which your building has been retrofitted, so this can be communicated to the underwriter.

Soil type: Are you on bedrock, clay, or soft soil (artificial landfill)? Earthquake severity and damage can vary based on the softness of the sediment. As seismic waves travel through the ground they amplify as the soil gets softer and is more prone to liquefaction.

If not thoroughly reviewed and negotiated, earthquake policies can be restrictive in the coverage offered, and can leave you paying high deductibles with a false sense of security.  Here are a few coverages that should always be on your policy:

Replacement Cost: This allows your claim to be paid without any deductions for building depreciation. On the other hand, Actual Cash Value only gives you the depreciated reconstruction value of the building.

Building Foundations: This is oftentimes excluded in the definition of “covered property” unless your agent/broker asks the underwriter to include it.  Generally, underwriters can include this coverage free.

Building Ordinance: This pays for the increased cost of construction to adhere to current building codes when rebuilding (e.g., installing a fire sprinkler system, widening doorways, etc.). City governments can require buildings to upgrade their systems and structural components to rebuild even if only part of the building is damaged. 

Earthquake Sprinkler Leakage: If an earthquake sets the fire sprinklers off, insurance companies oftentimes exclude the subsequent water damage from the sprinklers discharging. Some insurers give you the option of adding this on to your Commercial Package or Business Owner’s policy, which is oftentimes the most cost-effective way to purchase the coverage.

Earthquake deductibles are typically percentages, usually between 5-25% of the limits with a minimum flat dollar amount (e.g., a 5%, minimum $25,000). There are two main ways underwriters offer deductibles:

Per Unit of Insurance: Each coverage (building, business interruption, etc.) has its own percentage deductible. This can be advantageous as the deductible incurred before insurance kicks in is lower.

Per Policy: The percentage deductible is based on the Total Insurable Value (sum of Building, Business Personal Property, and Business Interruption/Loss of Rental Income limits), which means the deductible amount will be higher before the insurance policy pays. 

At Newfront, we are experts in the real estate insurance industry, and we can help you craft a policy to ensure you are covered. Contact one of our trusted advisors today.

Factors that determine the premium charged for earthquake coverage and the type of coverage options that are available.

Real Estate - State of the Market - Earthquake (Part 2)

Question:  What are the required annual employer notices to employees related to health and welfare plans?

Short Answer:  Employers must provide the Medicare Part D Creditable Coverage, CHIP, and WHCRA notices annually.  Typically, employers will time the distribution of all the required notices to meet the October 15 Medicare Part D Creditable Coverage notice deadline.   Employers should also consider providing additional notices with the required notices.

The July 31 semi-annual release of the updated DOL Children’s Health Insurance Program (CHIP) Model Notice for Employers Regarding Premium Assistance Opportunities marks the unofficial start to the health and welfare plan annual notice season.  

The following overview addresses the employer responsibilities to provide such annual notices to employees:

1.    Medicare Part D Notice of Creditable (or Non-Creditable) Coverage

2.    Children’s Health Insurance Program (CHIP) Notice

3.    Women’s Health and Cancer Rights Act (WHCRA) Notice

2.    Primary Care Provider Designation Patient Protection Notice

Examples of Employer Notices Typically Not Provided Annually:

1.    Newborns’ and Mothers’ Health Protection Act (NMHPA) Notice

3.    HIPAA Notice of Privacy Practices

Required Annual Notice #1: Medicare Part D Notice of Creditable (or Non-Creditable) Coverage

Why: To inform employees whether their employer-sponsored group health plan’s prescription drug coverage is at least as rich as a Medicare Part D plan.

To Whom: All Part D eligible individuals who are enrolled or seeking to enroll in the employer’s plan that provides prescription drug coverage.  This includes all individuals enrolled in Part A or Part B who live in the service area of a Part D plan.  (Best Practice: Provide the notice to all employees because employers will not know which employees, spouses, or dependents are enrolled in Part A or Part B, and they will not know which individuals are seeking to enroll in the employer’s plan).

How: Paper delivery by hand, first class mail, or electronic delivery for participants who “have access to the plan sponsor’s electronic information system on a daily basis as part of their work duties.”  This electronic delivery standard generally follows the ERISA electronic disclosure safe harbor.

Penalties: No specific employer penalty, but employees must have the information to avoid potential Part D late enrollment penalties (the premium may go up by at least 1% of the Medicare based beneficiary premium for every month without creditable coverage). 

Combining with Other Materials: Permitted as long as the notice is “prominent and conspicuous.”  If not on the first page, the first page should include a separate box that is bolded or offset on the first page and prominently references the notice in at least 14-point font.  (Model Language: “If you (and/or your dependents) have Medicare or will become eligible for Medicare in the next 12 months, a Federal law gives you more choices about your prescription drug coverage.  Please see page xx for more details.”)

Model Notice: Medicare Part D Notice of Creditable (or Non-Creditable) Coverage (last updated in 2011)

Required Annual Notice #2: Children’s Health Insurance Program (CHIP) Notice

When: Annually. (Best Practice: Although there is no specific timeframe for this annual notice, we recommend providing it with the other required annual notices.)

Why: To inform employees that they may be eligible for premium assistance from through CHIP or Medicaid state programs.

To Whom: All employees, regardless of enrollment status, residing in states providing CHIP/Medicaid premium assistance.  (Best Practice: Provide the notice to all employees to avoid tracking each employee’s state premium assistance programs.)

How: Paper delivery by hand, first class mail, or electronic delivery where the ERISA electronic disclosure safe harbor is satisfied.

Penalties: Currently at $127/day/employee based on the 2022 indexed penalty amounts.

Combining with Other Materials: Permitted as long as the notice “appears separately and in a manner which ensures that an employee who may be eligible for premium assistance could reasonably be expected to appreciate its significance.”

Model Notice:  Children’s Health Insurance Program (CHIP) Notice (Updated semi-annually each January 31 and July 31)

Required Annual Notice #3: Women’s Health and Cancer Rights Act (WHCRA) Notice

When: Upon enrollment and annually. (Best Practice: Although there is no specific timeframe for this annual notice, we recommend providing it with the other required annual notices.)

Why: To inform employees of the availability of coverage under the health plan for reconstructive surgery and other related items and procedures following a mastectomy.

To Whom: All participants and beneficiaries under the health plan.  A separate notice must be furnished to a beneficiary (i.e., a spouse, domestic partner, or dependent) where the individual’s last known address is different than the last known address of the covered participant.  

 How: Paper delivery by hand, first class mail, or electronic delivery through the ERISA electronic disclosure rules.

 Penalties: $100/day/employee under §4980D; potential employee ERISA breach of fiduciary duty claim.

 Combining with Other Materials: Permitted.

 Model Notice: Women’s Health and Cancer Rights Act (WHCRA) Notice (Pages 141-142)

Recommended Annual Notice #1: HIPAA Special Enrollment Notice

Employers are required to provide the HIPAA special enrollment notice at or before the time an employee is initially offered the opportunity to enroll in the health plan.  There is no requirement to distribute the notice annually.

Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices because of the importance of the special enrollment rights.

For more information on HIPAA special enrollment rights, see:

Newfront HIPAA Training for Employers Guide

Model Notice: HIPAA Special Enrollment Notice (Page 138)

Recommended Annual Notice #2: Primary Care Provider Designation Patient Protection Notice

Employers sponsoring a health plan with options that require designation of a primary care provider (e.g., HMOs) must provide the patient protection notice to plan participants whenever an SPD or other similar description of benefits is provided.  There is no requirement to distribute the notice annually.

Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices because the DOL asks for evidence the employer provided it to participants in its standard list of documents to be produced in an investigation/audit context.  The notice should also be included in the SPD.

Prior to 2022, this notice was not required for plans maintaining ACA grandfathered plan status.  Effective as of the first plan year beginning on or after January 1, 2022, the CAA has extended this notice requirement to also include grandfathered plans.  Accordingly, both non-grandfathered and grandfathered plans are now subject to the primary care provider designation patient protection notice.

For more information on the significantly expanded ACA protections under the CAA, see:

Newfront Office Hours Webinar: 2021 Year in Review 

Model Notice: Primary Care Provider Designation Patient Protection Notice

Recommended Annual Notice #3: ADA Wellness Program Notice

Employers sponsoring a wellness program that includes medical examinations (e.g., biometric screenings) or disability-related inquiries (e.g., medical questionnaires) must provide an ADA notice addressing how the employer will protect and use information related to the program.  There is no explicit requirement in the EEOC guidance to distribute the notice annually.

The EEOC ADA FAQ guidance provides that there is no requirement that employees receive the notice at a particular time.  However, it also states that employees should receive the notice before providing any health information, and with enough time to decide whether to participate in the program.

Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices to avoid employees claiming that they were not adequately informed of their ADA rights with respect to the wellness program.

Note that a federal court in 2016 ruled that components of the EEOC wellness program rules do not meet the requirements of the ADA, and the EEOC has accordingly formally removed those aspects of the regulations.  

Although the notice component was not removed, the EEOC issued new proposed ADA wellness regulations in January 2021 at the very end of the Trump administration that would have eliminated the notice requirement.  However, the Biden administration removed those proposed regulations shortly thereafter pursuant to a regulatory freeze memo issued on his date of inauguration.

As a result of this chaotic regulatory landscape, it is not clear whether the EEOC is currently enforcing the notice requirement.  We feel that the best practice approach is to continue following the EEOC regulations’ notice requirement until we have new guidance specifying the ADA requirements moving forward.

Model Notice: ADA Wellness Program Notice

Other Non-Annual Notice #1: Newborns’ and Mothers’ Health Protection Act (NMHPA) Notice

The NMHPA requires employers to include in the health plan SPD a statement describing the plan’s required minimum hospital length of coverage in connection with childbirth for the mother and newborn child.

The NMHPA notice is not an annual notice requirement.  It is typically not included with the employer’s annual legal notices described above.  DOL guidance confirms that including the NMHPA notice in the SPD is sufficient.

Other Non-Annual Notice #2: ACA Exchange Notice

The ACA requires employers subject to the Fair Labor Standards Act (FLSA) to provide the Exchange notice to new hires within 14 days of the employee’s start date.  The notice informs employees of how to access alternative individual policy coverage through the Exchange.

The Exchange Notice is not an annual notice requirement.  It is typically not included with the employer’s annual legal notices described above.  Best practice is to include the Exchange Notice as part of the standard new hire materials.

Note: The Exchange Notice is also frequently referred to as the “Marketplace Notice” or the “Notice of Coverage Options”.  These names are all referring to the same notice requirement added by the ACA.

For more information on the ACA Exchange Notice, see: The ACA Exchange Notice

Other Non-Annual Notice #3: HIPAA Notice of Privacy Practices

Employers with a self-insured health plan must provide employees with a HIPAA Notice of Privacy Practices describing the plan’s use and disclosure of PHI upon enrollment and within 60 days of a material change to the notice.

The HIPAA Notice of Privacy Practices is not an annual notice requirement.  It is typically not included with the employer’s annual legal notices described above.   

HIPAA does require employers with a self-insured health plan to inform employees of the availability of the Notice of Privacy Practices at least once every three years.  Employers with a self-insured health plan may choose to include this Notice of the Availability of the Notice of Privacy Practices with the annual legal notices every third year, or more frequently on a voluntary basis if so desired.

Sample language for the Notice of the Availability of the Notice of Practice Practices: 

“The [Enter Plan Name]’s use and disclosure of protected health information (PHI) under its self-insured health plan options is described by a HIPAA Notice of Privacy Practices maintained by [Enter Employer Name].   One of our responsibilities under HIPAA is to periodically remind you of the availability of this Notice of Privacy Practices should you want more information about the Plan’s procedures to protect and secure the confidentiality of your PHI.  You may access the Plan’s HIPAA Notice of Privacy Practices by [Enter Method of Accessing Notice].  Please contact the HR Department if you have any questions about this Notice.”

For more information on the HIPAA Notice of Privacy Practices, see:

Reminder: New Transparency in Coverage Machine-Readable Files Posting Required

As of July 1, 2022, employers sponsoring a self-insured medical plan must make available new transparency in coverage information on a publicly accessible website for the group health plan.  The new required content includes machine-readable files that disclose negotiated rates for covered items and services between the plan and in-network providers, and historical allowed amounts and billed charges for covered items and services provided by out-of-network providers.

CMS recently posted additional “Technical Clarifications” guidance that confirms employers without a public website for the group health plan may satisfy these requirements by entering into a written agreement with the TPA to post the files on the TPA’s public website on behalf of the plan.

Note: This TiC machine-readable files posting requirement is not an annual notice requirement.

For more information on the Transparency in Coverage Machine-Readable Files posting, see:

The Transparency in Coverage Machine-Readable Files Posting

Newfront Office Hours Webinar: 2021 Year in Review

Employers must provide the Medicare Part D Creditable Coverage, CHIP, and WHCRA notices annually. Typically, employers will time the distribution of all the required notices to meet the October 15 Medicare Part D Creditable Coverage notice deadline.

The 2023 Required Annual Notices to Employees

Deadline for Electronic Reporting of OSHA 300A Data

Megan O'Toole

Recommended reading

Workers Compensation Trends and the Impact on Employers Best Practices

Newfront Featured at 5th Annual William Blair Insurance Technology Conference

Courtney Leimkuhler Brings Expertise and DE&I Focus to Newfront’s Board

Real Estate - State of the Market - Earthquake (Part 2)

The 2023 Required Annual Notices to Employees