[Federal Register Volume 64, Number 240 (Wednesday, December 15, 1999)]
[Notices]
[Pages 70164-70166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32500]
[[Page 70163]]
_______________________________________________________________________
Part V
Department of the Treasury
Internal Revenue Service
_______________________________________________________________________
Department of Labor
Pension and Welfare Benefits Administration
_______________________________________________________________________
Department of Health and Human Services
Health Care Financing Administration
_______________________________________________________________________
Signing of a Memorandum of Understanding Among the Department of the
Treasury, the Department of Labor, and the Department of Health and
Human Services; Notice
Federal Register / Vol. 64, No. 240 / Wednesday, December 15, 1999 /
Notices
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
DEPARTMENT OF LABOR
Pension and Welfare Benefits Administration
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
Notice of Signing of a Memorandum of Understanding among the
Department of the Treasury, the Department of Labor, and the Department
of Health and Human Services
AGENCIES: The Internal Revenue Service, Department of the Treasury; the
Pension and Welfare Benefits Administration, Department of Labor;
Health Care Financing Administration, Department of Health and Human
Services.
ACTION: Memorandum of Understanding Among the Department of the
Treasury, the Department of Labor, and the Department of Health and
Human Services.
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SUMMARY: The Department of the Treasury, the Department of Labor, and
the Department of Health and Human Services (the Departments) entered
into a Memorandum of Understanding (MOU) effective April 21, 1999. The
purpose of the MOU is to implement section 104 of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191,
which directs the Departments to enter into an interagency MOU to
ensure that regulations, rulings, and interpretations relating to the
changes made by Subtitle A of Title I and section 401 of Title IV of
HIPAA over which two or more Secretaries have responsibility are
administered so as to have the same effect at all times. Section 104
also requires the coordination of policies relating to enforcing the
shared provisions in order to avoid duplication of enforcement efforts
and to assign priorities in enforcement. The text of the MOU is set
forth below.
FOR FURTHER INFORMATION CONTACT: Russ Weinheimer, Internal Revenue
Service, Department of the Treasury, at (202) 622-4695; Mark Connor,
Pension and Welfare Benefits Administration, Department of Labor, at
(202) 219-7006; or David Mlawsky, Health Care Financing Administration,
Department of Health and Human Services, at (410) 786-1565.
Dated: December 9, 1999.
Alan Tawshunsky,
Special Counsel to the Associate Chief Counsel, Employee Benefits and
Exempt Organizations, Internal Revenue Service, Department of the
Treasury.
Alan D. Lebowitz,
Deputy Assistant Secretary for Program Operations, Pension and Welfare
Benefits Administration, Department of Labor.
Gale P. Arden,
Acting Deputy Director, Private Health Insurance Group, Health Care
Financing Administration, Department of Health and Human Services.
Memorandum of Understanding Among the U.S. Department of the
Treasury, the U.S. Department of Labor, and the U.S. Department of
Health and Human Services
Article I
Introduction and Purpose
The Health Insurance Portability and Accountability Act of 1996
(``HIPAA''), Pub. L. No. 104-191, was enacted on August 21, 1996.
Titles I and IV of HIPAA amended the Internal Revenue Code, the
Employee Retirement Income Security Act of 1974, and the Public Health
Service Act to add provisions to improve access, portability and
continuity of health insurance coverage in the group and individual
health insurance markets.
Section 104 of HIPAA directs the Secretary of the Treasury, the
Secretary of Labor, and the Secretary of Health and Human Services to
enter into an interagency memorandum of understanding. Section 104
requires that the memorandum of understanding ensure that regulations,
rulings, and interpretations relating to the changes made by Subtitle A
of Title I and section 401 of Title IV of HIPAA over which two or more
Secretaries have responsibility (``shared provisions'') are
administered so as to have the same effect at all times. Section 104
also requires the coordination of policies relating to enforcing the
shared provisions in order to avoid duplication of enforcement efforts
and to assign priorities in enforcement. This memorandum of
understanding (MOU) is adopted pursuant to section 104 of HIPAA.
This MOU formally establishes an interagency agreement among the
Secretary of the Treasury, the Secretary of Labor, and the Secretary of
Health and Human Services to ensure coordination in the manner and for
the purposes set forth in section 104 of HIPAA. The Departments also
intend to follow the process set forth in this MOU, to the extent
appropriate, with regard to interpretations and enforcement of the
provisions of the Newborns' and Mothers' Health Protection Act of 1996,
the Mental Health Parity Act of 1996, and Subsequent Legislation. In
addition, the Departments of Labor and HHS agree to follow the process
set forth in this MOU, to the extent appropriate, with regard to
interpretations and enforcement of the provisions of the Women's Health
and Cancer Rights Act of 1998.
Article II
Authority
This MOU is entered pursuant to the authority set forth in section
104 of HIPAA, Pub. L. No. 104-191.
Article III
Definitions
``Agency'' refers to a component of a Department. For purposes of
this MOU, this includes the Internal Revenue Service (IRS) within the
Department of the Treasury, the Pension and Welfare Benefits
Administration (PWBA) within the Department of Labor, and the Health
Care Financing Administration (HCFA) within the Department of Health
and Human Services.
``Code'' refers to the Internal Revenue Code of 1986.
``Committee'' refers to the Coordinating Committee described in
Article V.
``Department'' refers to each of the Department of the Treasury,
the Department of Labor, and the Department of Health and Human
Services.
``Departments'' refers collectively to the Department of the
Treasury, the Department of Labor, and the Department of Health and
Human Services.
``ERISA'' refers to the Employee Retirement Income Security Act of
1974.
``HCFA'' refers to the Health Care Financing Administration.
``HHS'' refers to the Department of Health and Human Services.
``Interpretations'' refers to any written Agency or Departmental
statement, guidance, ruling, pronouncement, or explanation regarding a
statute described in Article I of this MOU that is not a Regulation.
Interpretations include statements such as Revenue Rulings, Technical
Bulletins/Releases, Advisory Opinions, and similar Agency or
Departmental releases that are binding on the issuing Agency or
Department. Interpretations also include policy guidance, such as
information letters, bulletins and policy letters,
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whether or not such guidance is binding on the issuing Agency or
Department.
``IRS'' refers to the Internal Revenue Service.
``Labor'' and ``DOL'' refer to the Department of Labor.
``MHPA'' refers to the Mental Health Parity Act of 1996.
``NMHPA'' refers to the Newborns' and Mothers' Health Protection
Act of 1996.
``PHS Act'' refers to the Public Health Service Act.
``PWBA'' refers to the Pension and Welfare Benefits Administration.
``Regulations'' refers to rules that are promulgated in accordance
with the provisions of the Administrative Procedure Act applicable to
substantive rules and that are published in the Federal Register and
codified in the Code of Federal Regulations.
``Related Acts'' refers to MHPA and NMHPA.
``Subsequent Legislation'' refers to future federal legislative
enactments concerning health care which result in two or more of the
Departments having shared jurisdiction.
``Treasury'' refers to the Department of the Treasury.
``WHCRA'' refers to the Women's Health and Cancer Rights Act of
1998.
Article IV
Background
Subtitle A of Title I and section 401 of Title IV of HIPAA are
intended to improve the availability of private health insurance by
increasing portability, access and renewability in the group market.
HIPAA establishes limits on the imposition of preexisting condition
exclusions and generally prohibits group health plans and health
insurance issuers from discriminating against individuals based on
health status when determining eligibility to enroll in a group health
plan or to obtain related insurance or in deciding the amount of
premium to be charged to similarly situated individuals. Employers may
not be denied continued access to multiemployer plans, or multiple
employer welfare arrangements, except for certain reasons set forth in
HIPAA.
HIPAA and Related Acts amended three federal statutes: the Code,
administered by the Treasury through IRS; ERISA, administered by DOL
through PWBA; and the PHS Act, administered by HHS through HCFA. Under
the Code, as amended by HIPAA and Related Acts, the Treasury has
authority over group health plans (including church plans) and their
sponsors, and IRS enforces the requirements of HIPAA and Related Acts
through the imposition of an excise tax. Under ERISA, as amended by
HIPAA and Related Acts, DOL has increased authority over group health
plans that are subject to Part 7 of subtitle B of Title I of ERISA.
Health insurance issuers offering health insurance coverage in
connection with such plans are also subject to Part 7. However, in
accordance with the provisions of HIPAA, only participants and
beneficiaries (and not DOL) may bring an enforcement action against
health insurance issuers under Part 7.
Under the PHS Act, as amended by HIPAA and Related Acts, HCFA has
authority over health insurance issuers and nonfederal governmental
plans. If a State fails to substantially enforce Parts A and B of Title
XXVII of the PHS Act, or requests that HCFA enforce the provisions or
requirements, HCFA enforces the group and individual market
requirements by imposing a civil monetary penalty on issuers that fail
to comply with HIPAA's requirements in that State.
There are differences in some of the amendments that HIPAA and
Related Acts made to the three statutes. In some instances, changes
were made to only one of the federal statutes with no counterpart in
the other two statutes. Section 104 of HIPAA requires the Secretaries
of the Treasury, Labor and HHS to coordinate in the areas of parallel
responsibility relating to the shared provisions of HIPAA.
Article V
Scope of Work
The Departments agree to assign representatives to work closely to
ensure that all Interpretations, Regulations and enforcement strategies
relating to shared provisions of Subtitle A of Title I and section 401
of Title IV of HIPAA and Related Acts will be developed and implemented
in a coordinated manner. All such Interpretations, Regulations and
enforcement strategies will be administered in a manner that promotes
consistency in effect, that avoids duplication of enforcement efforts,
and that reflects consideration of the appropriate priorities in
enforcement.
In this regard, the Departments will continue to work together
closely through regular joint meetings and frequent consultation,
consistent with the process (i.e., by mutual consent) that has been
used in developing existing Regulations and Interpretations under HIPAA
and Related Acts. Similarly, DOL and HHS will continue to work together
closely through regular joint meetings and frequent consultation to
develop Regulations and Interpretations under WHCRA.
In order to further effectuate this coordination, the Treasury,
IRS, DOL, and HHS each will name a ``Department Designee'' to serve on
a Coordinating Committee. The Committee's task will be to ensure the
identification and coordination of policies involving areas of shared
responsibility under HIPAA and Related Acts to maintain consistency in
the application of these provisions that amend the Code, ERISA, and the
PHS Act.
The Committee also will take steps to maximize the efficiency of
Agency enforcement efforts, including developing the terms of further
agreement(s), as necessary. The Committee members shall meet,
quarterly, or at such times as they may agree, to review and discuss
relevant pending Regulations and Interpretations to evaluate whether
the position(s) set forth therein reflect a coordinated position.
Committee meetings will be held at locations agreed to by the Committee
members. Upon agreement of the Committee members, such meetings may be
held by conference call. Each Department will assume the costs
associated with the participation of its respective Committee members.
Timely and prompt consensus will be sought in the development and
administration of all Interpretations affected by this MOU. Any
Department Designee can bring any matter subject to the MOU before the
Committee. The Department Designees serving on the Committee will
attempt to reach consensus on issues within 45 days (except in unusual
circumstances) after such issues have been formally presented
(including a written summary) at a meeting of the Committee. If
consensus on particular issues is reached by the members of the
Committee, appropriate clearance will be initiated within each
Department.
Article VI
Coordinated Enforcement Strategy
Generally, the Departments intend to continue the current informal
arrangements that have developed for cooperation and collaboration in
the handling of inquiries arising under HIPAA, MHPA, NMHPA, and WHCRA.
In addition, pursuant to Section 104(2) of HIPAA and this MOU, the
Committee, and any appropriate individuals designated by the Agencies
or Departments, shall develop a coordinated enforcement strategy that
avoids duplication of enforcement efforts and assigns priorities in
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enforcement. The Agencies or Departments shall first designate, within
six months of the execution of this MOU, individuals who are to work
with the Committee in developing the enforcement strategy. This group
shall also devise a written operational agreement for the sharing of
information that is related to enforcement cases among the Departments.
Moreover, the operational agreement may address procedures for the
referral of cases, the development of audit checklists and training
materials, and the coordination of public affairs information. The
operational agreement may also describe the individuals within each
Department who are responsible for implementing the sharing of
information.
Subject to applicable legal restrictions (including section 6103 of
the Code), the Departments agree, absent exigent circumstances, to
notify each other in writing (through the Department Designee) prior to
the commencement of any administrative or judicial proceeding on
matters within the scope of this MOU and to inform each other of the
final action resulting from such proceeding.
Nothing in this section shall be construed to affect the
enforcement authority that HIPAA or Related Acts confers on any
Department, including enforcement concerning a matter as to which a
Department has given or received the information or notice described
herein, nor shall this paragraph be construed to preclude the
Departments from agreeing to different arrangements on a case by case
basis.
Article VII
Confidentiality of Information
The Departments agree that any information shared or disclosed
pursuant to this MOU will be held in strict confidence and may be used
only for purposes consistent with this MOU or as otherwise permitted by
law. All requests by parties other than the Departments for disclosure
of information shall be coordinated with the Agency that initially
compiled or collected the information, provided that no Agency shall
disclose information initially compiled by another Agency to the public
without the approval of the appropriate Agency or Department unless the
Agency is required by law to do so (e.g., Freedom of Information Act
(FOIA), 5 U.S.C. 552; Federal Advisory Committee Act (FACA), 5 U.S.C.
App. 2), in which event it will notify the appropriate Department or
Agency in writing of its intent to disclose such information. Nothing
in this MOU shall be deemed to confer rights on any party other than
the Departments as a result of any act or omission by any Agency or
Department with respect to its obligations under this MOU.
Article VIII
Duration of Agreement
This MOU will become effective upon the date of the final signature
and may be amended by written agreement of the undersigned. It will
remain in effect until amended by the parties, or until terminated by
any of the parties upon 30 days written notice to the other parties
and, upon the agreement of the Departments, shall apply to Subsequent
Legislation.
Article IX
Officials Responsible for MOU
The appropriate Departmental officials will appoint their
respective Department Designees to the Committee within 30 days after
the signing of this MOU and will appoint any successors in a timely
manner.
We, the undersigned, do hereby agree to the foregoing provisions of
this MOU.
Dated: April 8, 1999.
Donald C. Lubick,
Assistant Secretary for Tax Policy, Department of the Treasury.
We, the undersigned, do hereby agree to the foregoing provisions of
this MOU.
Dated: April 21, 1999.
Robert E. Wenzel,
Deputy Commissioner, Internal Revenue Service, Department of the
Treasury.
We, the undersigned, do hereby agree to the foregoing provisions of
this MOU.
Dated: March 17, 1999.
Richard M. McGahey,
Assistant Secretary, Pension and Welfare Benefits Administration,
Department of Labor.
We, the undersigned, do hereby agree to the foregoing provisions of
this MOU.
Dated: March 30, 1999.
Nancy-Ann Min DeParle,
Administrator, Health Care Financing Administration, Department of
Health and Human Services.
[FR Doc. 99-32500 Filed 12-14-99; 8:45 am]
BILLING CODE 4830-01-P; 4510-29-P; 4120-01-P
