ACA Information Reporting Creates Data Privacy and Security Issues

During this year, businesses will be hearing a lot about the Affordable Care Act’s (ACA’s) information reporting requirements under Code Sections 6055 and 6056. Information gathering will be critical to successful reporting, and there is one aspect of that information gathering which employers might want to take action on sooner rather than later – collecting Social Security numbers (SSNs), particularly when required to do so from the spouses and dependents of their employees. There are, of course, ACA implications for not taking this step, as well as data privacy and security risks for employer and their vendors.

Under the ACA, providers of “minimum essential coverage” (MEC) must report certain information about that coverage to the Internal Revenue Service (IRS), as well as to persons receiving that MEC. Employers that sponsor self-insured group health plans are providers of MEC for this purpose, and in the course of meeting the reporting requirements, must collect and report SSNs to the IRS. However, this reporting mandate requires those employers (or vendors acting on their behalf) to transmit to the IRS the SSNs of employee and their spouses and dependents covered under the plan, unless the employers either (i) exhaust reasonable collection efforts described below, (ii) or meet certain requirements for limited reporting overall.

Obviously, employers are familiar with collecting, using and disclosing employee SSNs for legitimate business and benefit plan purposes. Collecting SSNs from spouses and dependents will be an increased burden, creating more risk on employers given the increased amount of sensitive data they will be handling, and possibly from vendors working on their behalf. The reporting rules permit an employer to use a dependent’s date of birth, only if the employer was not able to obtain the SSN after “reasonable efforts.” For this purpose, reasonable efforts means the employer was not able to obtain the SSN after an initial attempt, and two subsequent attempts.

From an ACA standpoint, employers with self-insured plans that have not collected this information should be engaged in these efforts during the year (2015) to ensure they are ready either to report the SSNs, or the DOBs. At the same time, collecting more sensitive information about individuals raises data privacy and security risks for an organization regarding the likelihood and scope of a breach. Some of those risks, and steps employers could take to mitigate those risks, are described below.

• Determine whether the information is subject to HIPAA. Employers will need to consider whether this information, collected for ACA group health plan reporting requirements, is protected health information under HIPAA (PHI) or within the HIPAA “employment records” exception.

• Implement appropriate safeguards.  For an employer that determines the information collected for this purpose is PHI, it will need to ensure the appropriate steps are taken under the HIPAA privacy and security rules. Either way, employers need to take steps to safeguard this data. A number of states, such as California, Connecticut, Florida, Maryland, Massachusetts, New York, Oregon require reasonable safeguards be in place to protect such information. Examples of good practices include: (i) design forms to collect only the information needed; (ii) direct responses to the requests for the information to go to a single location; (iii) if collected online, make sure the connection is secure; (iv) limit who has access to the information; and (v) after the information is captured and input, destroy all copies of the information other than as needed for appropriate documentation.

• Ensure your vendors will protect this information. The IRS reporting regulations permit the use of third party vendors to assist employers in the reporting process. Whether the vendor is a “business associate” under HIPAA or a third-party service provider under state law, employers should be sure the vendor is contractually bound to maintain and implement appropriate privacy and security practices, including data breach preparedness.

Employers navigating through ACA compliance and reporting requirements have many issues to be considered. How personal information or protected health information is safeguarded in the course of those efforts is one more important consideration.