2016 End of Year Plan Sponsor “To Do” List: Health & Welfare

by Snell & Wilmer
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As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the series covered executive compensation issues, Part 2 covers health and welfare plan issues, and Part 3 will cover qualified plan issues. Each Employee Benefits Update provides you with a “To Do” List of items on which you may want to take action before the end of 2016 or in early 2017. As always, we appreciate your relationship with Snell & Wilmer and hope that these “To Do” Lists help focus your efforts over the next few months.

Part 2 - Health & Welfare Plans “To Do” List

  • Consider Impact of Nondiscrimination Rules: Several important changes have occurred over the past year with respect to nondiscrimination in the provision of health benefits. Employers should consider each of the following issues, as applicable:
    • Section 1557 of the Health Care Reform Act: On May 18, 2016, the Office of Civil Rights issued final regulations implementing the nondiscrimination provision of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (collectively, the “Health Care Reform Act”). The final rule prohibits individuals from being excluded from participation, denied benefits, or subjected to discrimination under any health program or activity that receives federal financial assistance from the Department of Health and Human Services (“HHS”) on the basis of race, color, national origin, sex, age, or disability. The rule generally is effective July 18, 2016. However, group health plans and health insurance policies need not be modified to comply with Section 1557 until the first day of the first plan year beginning on or after January 1, 2017. Substantively, the final rule focuses, in part, on the provision of health services to transgender participants and prohibits the blanket exclusion of services designed to treat gender dysphoria and assist in gender transition. The rules shed little light on the scope of services that must be offered. Accordingly, employers may wish to evaluate the array of transgender benefits they might offer under their health programs. Our SW Benefits Blogs of March 30, 2016, “’A Trap for the Unwary’ - Does Your Self-Funded Health Plan Provide Transgender Benefits? It Might Need to Soon,” and June 22, 2016, “Transitioning to Coverage: Three Things to Know About the New Transgender Healthcare Regulations,” highlight the key contours of the nondiscrimination rule, and our September 19, 2016 SW Benefits Blog, “A Deeper Dive: Employers Receiving Federal Funding May Be Subject to ACA’s Nondiscrimination Rule and Need to Cover Transgender Benefits,” may help employers determine whether they are subject to the rule. Note that being subject to Section 1557 may mean more than having to provide some level of transgender health coverage. It also likely requires employers to provide benefits to same-sex spouses if the employer provides benefits to opposite-sex spouses, and sexual orientation neutral domestic partner benefits, if the employer offers domestic partner benefits. Section 1557 also subjects covered entities to certain notice requirements, samples of which can be found on the Office of Civil Rights website.
    • Federal Contractors:  Final regulations issued by the Office of Federal Contract Compliance Programs on June 15, 2016 extend nondiscrimination principles similar to those embodied in Section 1557 to employers holding federal contracts valued in excess of $10,000 in any 12-month period.  These rules prohibit the categorical exclusion of health care coverage related to gender dysphoria or gender transition and became effective August 15, 2016.
    • Title VII of the Civil Rights Act of 1964: While Section 1557 of the Health Care Reform Act is limited to certain employers who receive federal financial assistance from HHS, the type of discrimination that the rules target may be prohibited by other federal laws. Title VII prohibits employers from discriminating against employees with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin. Last year, the Equal Employment Opportunity Commission (the “EEOC”) ruled that discrimination based on sexual orientation is a form of sex discrimination under Title VII. Title VII provides a basis that spousal and domestic partner benefits should be sexual-orientation neutral, and that employers should offer some level of transgender coverage under their health plans. Case law in this area is developing.
  • Report and Pay Reinsurance Fees: The Health Care Reform Act created the transitional reinsurance program, which requires most self-insured health plans to make contributions to HHS for the 2014, 2015, and 2016 calendar years. The contribution amount is determined by the number of covered lives under each plan. The number of covered lives must be calculated and submitted to HHS by November 15 of each year. The third and final filing is due November 15, 2016 for the 2016 calendar year. See the CMS webpage on reinsurance fees for contribution deadlines. For 2016, the contribution amount is $27 per covered life, down from $44 for 2015. Data submissions and payments can be made online using Pay.gov. Covered lives may be calculated using several different methods, similar to the methods that are used to calculate covered lives for PCORI fees. Results can differ significantly depending on the counting method used.
  • Comply with Large Employer Shared Responsibility Rules if Applicable, or Pay Penalties: 2017 will be the third year large employers are operating under the large employer shared responsibility penalties. Large employers are subject to penalties if any full-time employee receives a premium tax credit or cost-sharing reduction and either: (a) the employer fails to offer minimum essential health coverage to 95% of its full-time employees (and their dependents); or (b) the employer offers minimum essential health coverage to 95% of its full-time employees (and their dependents), but the coverage is either not affordable or does not provide minimum value. Missing the 95% test even slightly, for example, coming in at 94%, will require the employer to pay a $2,000 annual penalty for each full-time employee (minus the first 30 full-time employees). The rules are explained in more detail in our Health Care Reform’s Employer Shared Responsibility Penalties: A Checklist for Employers, which has been updated to reflect certain recent guidance. Most importantly, the revised Checklist:
    • now reflects how the penalties are adjusted each year (see footnote 7 of the Checklist for more information);
      • the $2,000 subsection (a) penalty is $2,080 for 2015, and $2,160 for 2016; and
      • the $3,000 subsection (b) penalty is $3,120 for 2015 and $3,240 for 2016.
    • explains how the 9.5% affordability threshold under the safe harbors  is adjusted each year;
      • the 9.5% threshold under the safe harbors is 9.56% for plan years beginning in 2015, 9.66% for plan years beginning in 2016, and 9.69% for plan years beginning in 2017.
    • includes a reminder that in determining affordability, employers must consider employer contributions, such as HRA contributions and flex and opt-out credits under cafeteria plans (see footnote 9 of the Checklist for more information);
    • refers to additional guidance in Notice 2015-87 on how hours of service are counted; and
    • includes a reminder that the Cadillac tax, which is now set to take effect in 2020, may impact coverage that may be offered in 2020 and later years.
  • Do Code Section 6055 and 6056 Reporting:
    • Small and Large Employers with Self-Insured Health Plans Must Report Minimum Essential Coverage (“MEC”): Starting in 2016, Section 6055 of the Internal Revenue Code (the “Code”), which was added by the Health Care Reform Act, required all entities providing MEC to submit information to the IRS concerning each covered individual for the 2015 calendar year. Reporting is again required in early 2017 for 2016, but the deadlines are earlier than they were last year. Section 6055 also requires these entities to provide statements containing similar information to certain covered individuals. MEC is broadly defined to include any group health plan or group health insurance that is not an excepted benefit (e.g., stand-alone dental or vision plan). Unlike Section 6056 discussed below, all employers sponsoring self-insured health plans must report on all covered employees, regardless of the size of the employer or the status of the covered employee (e.g., part-time). Employers sponsoring insured health plans are not required to comply because the insurance company must do the reporting. However, these employers may need to collect and provide employee information to the insurer so the insurer can meet its Section 6055 obligations. Generally, entities reporting under Section 6055 must use Form 1094-B (the IRS transmittal form) and Forms 1095-B (individual statements). Large employers sponsoring self-insured health plans may use combined reporting to comply with both Section 6055 and Section 6056 by completing one form per individual, permitting large employers sponsoring self-insured health plans to disregard Forms 1094-B and 1095-B. For more information, please see our October 24, 2014 SW Benefits Update, “Section 6055 Reporting of Health Plan ‘Minimum Essential Coverage’ for Small and Large Employers.” Forms and instructions for 2016 for Section 6055 reporting can be accessed on the IRS webpage for providers of MEC.
    • Large Employers Must Report on Health Coverage Offered to Full-Time Employees: Starting in 2016, Section 6056 of the Code, which was also added by the Health Care Reform Act, required applicable large employers to report to the IRS information regarding health coverage offered to full-time employees for the 2015 calendar year. Reporting is again required in early 2017 for 2016, but the deadlines are earlier than they were last year. Additionally, applicable large employers must provide individual statements to each full-time employee regarding the type of coverage that was offered to that employee during 2016. All applicable large employers must comply, regardless of whether the employer sponsors a self-insured or fully insured health plan, or if the employer does not offer health coverage to its employees. Employers must use Form 1094-C and Forms 1095-C to complete this reporting. For more information, please see our October 28, 2014 SW Benefits Update, “Section 6056 Reporting of Health Coverage Information for Large Employers.” Forms and instructions for 2016 for Section 6056 reporting can be accessed on the IRS webpage for large employers.
    • Reporting Deadlines: While the IRS provided an extended deadline for information reporting under Sections 6055 and 6056 for offers of coverage made in 2015, such extension does not apply for reporting offers of coverage for 2016. Instead, the following deadlines apply:

Section 6055:
Health Coverage Reporting

Form

Filing Deadline

Form 1095-B (to employees)

January 31, 2017

Form 1094-B (to IRS)

February 28, 2017 (paper filing)
March 31, 2017 (electronic filing)

 

Section 6056:
Employer-Provided Health Insurance Offer
and Coverage Reporting

Form

Filing Deadline

Form 1095-C (to employees)

January 31, 2017

Form 1094-C (to IRS)

February 28, 2017 (paper filing)
March 31, 2017 (electronic filing)

  • Continue to Track and Comply with Health Care Reform Changes: Employers should continue moving forward with implementation of the Health Care Reform Act. See our updated checklist that provides a more detailed summary of the principal requirements under the Health Care Reform Act, beginning with those that first became effective in 2010 and continuing through those that will become effective in 2020. The purpose of that checklist is to provide a summary of the principal requirements under the Health Care Reform Act that apply to employer-sponsored group health plans. The Health Care Reform Act and its related guidance go into much more detail and should always be consulted when considering its application to any particular plan.
  • If a Group Health Plan is a Grandfathered Plan, Review Grandfathered Status: Group health plans that were in existence on or before March 23, 2010 and that have not undergone significant changes since then (grandfathered plans) have to comply with some, but not all, of the requirements under the Health Care Reform Act. Employers that have made any changes to their health plans or added a wellness component in 2016, or in connection with open enrollment for an upcoming plan year, should consider whether those changes cause the plan to lose grandfathered status. If grandfathered plan status is lost, the plan must comply with additional requirements that apply to non-grandfathered plans as of the date grandfathered status is lost. Very few plans still have grandfathered status. Those that do need to make sure that they comply with the grandfathered plan notice requirements.
  • Cover Preventive Services without Cost Sharing in Non-Grandfathered Health Plans: Non-grandfathered group health plans were first required to provide coverage for preventive services without cost sharing for plan years beginning on or after September 23, 2010. Non-grandfathered group health plans were required to cover additional women’s preventive services without cost sharing for plan years beginning on or after August 1, 2012 (i.e., January 1, 2013 for calendar year plans). Plan sponsors and insurers that are subject to the preventive services mandate should periodically review and update their plans to ensure that they are covering all of the preventive services described in the recommendations and guidelines, which change from year-to-year. Information about the recommendations and guidelines is available at the Healthcare.gov website, which is updated periodically. Also see FAQs About Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation, for various clarifications regarding preventive care services, including lactation counseling (Q1-4), breastfeeding equipment (Q5), weight management services for adult obesity (Q6), colonoscopies (Q7-8), religious accommodation to proving coverage of contraceptive services (Q9), and coverage of BRCA testing (Q10), FAQs About Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women’s Health and Cancer Rights Act Implementation for various clarifications regarding preventive care services, including colonoscopies (Q1), and contraception (Q2), and FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation regarding tobacco cessation interventions (Q1).
  • Be Ready for HIPAA Phase 2 Audits: As indicated in our May 4, 2015 SW Benefits Blog, “HIPAA ‘Phase 2’ Audits: Are You Ready?”, HHS implemented its Phase 2 HIPAA Audit Program in 2016. During these audits, HHS has been focusing on reviewing the policies and procedures adopted and employed by covered entities and their business associates to ensure compliance with HIPAA’s Privacy, Security, and Breach Notification Rules. These audits will primarily be desk audits, although some on-site audits will be conducted.
  • Update HIPAA Privacy and Security Policies and Business Associate Agreements: Because of the HIPAA Phase 2 audits, employers should review and, if needed, update their HIPAA Privacy and Security Policies and Procedures. In addition, employers should ensure that they have updated Business Associate Agreements (“BAAs”) with all business associates.
  • Implement A Business Associate Agreement with Your Cloud Service Provider (“CSP”): In 2016, HHS released updated guidance on HIPAA and cloud computing to help covered entities take advantage of the cloud without risking a HIPAA violation. The main focus of the guidance is the use of CSPs. Independent CSPs are treated as business associates under HIPAA regulations if the CSP is required to create, receive, maintain, or transmit electronic protected health information (ePHI). This is true even though the data may be encrypted. A CSP is also treated as a business associate when a business associate of a covered entity subcontracts services to the CSP that involve creating, receiving, maintaining, or transmitting ePHI. The importance of entering into a HIPAA-compliant BAA with a CSP was highlighted in July 2016 when HHS agreed to settle with Oregon Health & Science University in Portland for $2.7 million after an investigation revealed that ePHI had been stored on a Google-cloud based platform without a HIPAA-compliant BAA having first been obtained.
  • Review Wellness Programs: It is a good time to perform a review of wellness programs in light of recently issued guidance and developing case law. On May 16, 2016, the EEOC issued final rules clarifying how the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA”) apply to employer-sponsored wellness programs. The ADA final rule provides guidance on the requirement that a medical exam or disability-related inquiry made in connection with a wellness program be “voluntary.” The rule also discusses the limited applicability of the “safe harbor” provision. For a discussion of the final ADA rule, please see our July 5, 2016 SW Benefits Blog, "EEOC Final Rules on Wellness Programs and the ADA - Worth the Wait?". The GINA final rule discusses the use of genetic information and makes some changes to incentives related to wellness programs that inquire about a spouse’s current or past health status. These final rules apply to employer-sponsored wellness programs, regardless of whether a program is offered through a group health plan. Keep in mind that, depending on the particular benefits a wellness program offers, a wellness program may be subject to a unique combination of varying requirements such as ERISA, HIPAA, ADA, GINA, and COBRA, to name a few. This leaves substantial room for error when trying to design compliant wellness programs. Minor changes can have a major impact, so periodically reviewing wellness offerings may help avoid costly mistakes.
    • Consider Impact of Case Law: Additionally, case law in this area is changing. The recent decision in EEOC v. Orion Energy Systems, Inc., no. 1:14:-cv-01019 (E.D. Wis. 2016) held that the protections of the ADA safe harbor provision are extremely narrow and only apply to an employer’s wellness program under very limited circumstances. Significantly, the court declined to follow the holdings of Seff v. Broward County and EEOC v. Flambeau, which it believed were at odds with the recently issued final rule and the underlying purpose of the ADA. For background on the Flambeau decision, please see our April 11, 2016 SW Benefits Blog, "A Wellness Win for Employers, But Will it Last?". Employers that have been relying on the safe harbor for ADA compliance should consider the impact of the Orion decision, as well as that of the recently issued ADA and GINA final rules.
    • Consider Taxation of Wellness Incentives: On April 14, 2016, the IRS issued IRS Memorandum 201622031, which provides clarification regarding taxation of certain wellness program incentives. Many employer-provided wellness incentives, such as cash rewards or gym membership reimbursements, must be taxed as income to the employee.
  • Review Employee Assistance Programs: Final regulations were released on October 1, 2014 concerning the criteria necessary for benefits offered through an Employee Assistance Program (“EAP”) to qualify as excepted benefits. Excepted benefits are generally exempt from the requirements of the Health Care Reform Act. In order to qualify for this relief: (1) the program cannot provide “significant benefits in the nature of medical care;” (2) the benefits cannot be coordinated with benefits under another group health plan; (3) no employee premiums or contributions can be required to participate in the EAP; and (4) there must be no cost-sharing under the EAP. The regulations do not provide detailed elaboration upon the meaning of “significant” medical benefits. The regulations provide examples and generally state that the amount, scope, and duration of covered services are taken into account. These final regulations apply for plan years beginning on or after January 1, 2015. Employers who have not yet confirmed that their EAPs comply with each of these four requirements may wish to do so promptly.
  • Consider Proper Treatment of Telemedicine Benefits: Telemedicine is becoming an increasingly popular option. However, failure to follow applicable regulations can subject employers to large excise taxes on a per-participant basis. To avoid this liability, employers should consider how to best structure telemedicine programs to ensure compliance with ERISA, the Health Care Reform Act, and other applicable laws. For more information regarding telemedicine benefits, please see our August 29, 2016 SW Benefits Blog, “What is Telemedicine? A Cool Benefit or a Hot Mess?".
  • Distribute Summaries of Benefits and Coverage (“SBC”): The Health Care Reform Act requires employers offering group health plan coverage to provide employees with an SBC, which summarizes the health plan or coverage offered by the employer. As noted in our SW Benefits Blog of August 11, 2016, “Departments Finally Publish Updated SBC Template and Instructions,” the agencies issued an updated SBC template and revised instructions earlier this year. The new template provides health care consumers with more detailed information about cost-sharing, deductibles, and out-of-pocket limits. The revised template must be used beginning with the first open enrollment period beginning on or after April 1, 2017. More information about the SBC requirement, and links to the revised SBC template, can be found on the DOL website.
  • Provide 60-Day Advance Notice of Changes Impacting SBC: As reported in our July 19, 2012 Health Care Reform Legal Alert, “Summary of Benefits and Coverage for Group Health Plans,” the Health Care Reform Act requires group health plans to give participants a 60-day advance notice before making any material modification in plan benefits or coverage that is not reflected in the most recently provided SBC. This applies to both benefit enhancements and reductions that take effect mid-year.
  • Update Summary Plan Descriptions (“SPDs”) if Needed: SPDs must be updated once every five years if the plan has been amended during the five-year period and once every 10 years for other plans. SPDs may need to be updated.
  • Distribute Summary Annual Report: Distribute a summary annual report, which is a summary of the information reported on the Form 5500. The summary annual report is generally due nine months after the plan year ends. If the Form 5500 was filed under an extension, the summary annual report must be distributed within two months following the date on which the Form 5500 was due.
  • Gear Up for the Cadillac Tax: The Health Care Reform Act requires employers to pay a 40% excise tax on the value of health plans that exceed $10,200 for an individual and $27,500 for a family, indexed for inflation. The excise was originally scheduled to take effect for taxable years beginning after 2017, but subsequent legislation delayed this excise tax by two years until 2020 (tax years beginning after 2019). On February 23, 2015, the IRS issued Notice 2015-16, which initiated the process of developing guidance for the Cadillac tax. Notice 2015-16 describes potential approaches that could be incorporated in future guidance and invited comments on these potential approaches and other issues concerning how to enforce the Cadillac tax. On July 30, 2015, the IRS issued Notice 2015-52, which continued the process of developing regulatory guidance. Notice 2015-52 supplements Notice 2015-16 by addressing additional issues, including the identification of the taxpayers who may be liable for the excise tax, employer aggregation, the allocation of the tax among the applicable taxpayers, and the payment of the applicable tax. Both IRS Notices were issued prior to the legislative delay. Legislators from both political parties have voiced support for the repeal of the Cadillac tax, but no legislation has been passed. For the time being, employers should not rely on informal comments from legislators and should assume that the Cadillac tax will not be repealed. Employers may wish to begin preparing for the Cadillac tax and assess possible plan design changes, if necessary, to avoid the Cadillac tax. However, the two-year delay is welcome and gives employers some breathing room.
  • Comply with Mental Health Parity Requirements: In general, the mental health parity rules require group health plans to ensure that financial requirements (e.g., co-pays, deductibles, and coinsurance) and quantitative and non-quantitative treatment limitations (e.g., visit limits, days of coverage maximums, and medical necessity standards) applicable to mental health or substance use disorder benefits are no more restrictive than the predominant requirements or limitations applied to substantially all medical/surgical benefits. The parity rules concerning financial requirements and treatments limitations were created by the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”), which supplemented the Mental Health Parity Act of 1996. In November 2013, final regulations were issued implementing the provisions of MHPAEA. The final MHPAEA regulations apply to group health plans for plan years beginning on or after July 1, 2014. Therefore, employers sponsoring plans should have complied with these parity requirements in 2015. Employers who have not done so should consider reviewing their plans for compliance, taking into consideration the final regulations and more recent guidance, including but not limited to FAQs About Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation (Q12-13), FAQs About Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women’s Health and Cancer Rights Act Implementation (Q8-11), and FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation (Q2-8). Audit activity regarding MHPAEA compliance is on the rise.
  • Continue to Report and Pay Patient-Centered Outcomes Research Institute (“PCORI”) Fees: Health insurance issuers and sponsors of self-insured health plans must continue to report and pay PCORI fees. For health insurance issuers and plan sponsors of self-insured plans with calendar-year policy or plan years, the first IRS Form 720 and payment was due July 31, 2013. The PCORI fee for a plan or policy year is equal to the average number of lives covered under the plan or policy, multiplied by an applicable dollar amount. For the first year, the applicable dollar amount was $1. This amount was increased to $2 for the second year, to $2.08 for the third year, and $2.17 for the fourth year. For the fifth year (i.e., plan years that end on or after October 1, 2016 and before October 1, 2017) the applicable dollar amount is projected to be $2.25. Future amounts will be adjusted to reflect inflation in National Health Expenditures, as determined by HHS.
  • Continue to Comply with IRS Form W-2 Reporting of the Cost of Employer-Sponsored Group Health Plan Coverage: Beginning with the Form W-2 issued in January 2013 (i.e., the Form W-2 issued for the 2012 calendar year), employers were required to report to employees the cost of their employer-sponsored group health plan coverage. This reporting is for informational purposes only and is intended to communicate the cost of health care coverage to employees. It does not change how such benefits are taxed. This requirement continues to apply for future years.
  • Reflect Cost-of-Living Increases: The IRS recently announced cost-of-living adjustments for 2017, some of which have an impact on health and welfare plans. A selection of important cost-of-living increases in the health and welfare context is provided below. For more information about cost-of-living changes in 2017, see our November 2, 2016 SW Benefits Blog, “IRS Announces 2017 Retirement Plan Dollar Limits.”

Health & Welfare Plan Dollar Limits

 

2016 Limit

2017 Limit

Annual Cost Sharing Limit (self-only coverage)

$6,850

$7,150

Annual Cost Sharing Limit (other than self-only coverage)

$13,700

$14,300

HDHP Out-of-Pocket Maximum (self-only coverage)

$6,550

$6,550

HDHP Out-of-Pocket Maximum  (family coverage)

$13,100

$13,100

Annual HDHP Deductible (self-only coverage)

Not less than $1,300

Not less than $1,300

Annual HDHP Deductible (family coverage)

Not less than $2,600

Not less than $2,600

Maximum Annual HSA Contributions (self-only coverage)

$3,350

$3,400

Maximum Annual HSA Contributions (family coverage)

$6,750

$6,750

Maximum HSA Catch-Up Contribution

$1,000

$1,000

Health FSA Maximum Election

$2,550

$2,600

 

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  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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