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Health plans - design

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[Opinion] Health Insurers Find Back Door to Limit Choice
"Insurance companies ... [have] cooked up a clever way to justify exclusions from formularies by founding and funding a group called the Institute for Clinical and Economic Review, or ICER.... ICER, which holds itself out as a kind of Consumer Reports for drugs, is basically an industry-backed comparative effectiveness calculator. That ICER is industry backed isn't the problem, it's that it uses comparative effectiveness to lend an air of legitimacy to the formulary shenanigans. Different people respond differently to medications. The blue pills don't always work the same as the red pills. Individuals, it turns out, are different." (USA TODAY)
Virginia Insurer's Decision to Drop Bronze Plans Prompts Concerns
"News that a CareFirst BlueCross BlueShield subsidiary will stop selling bronze level plans on the Virginia marketplace next year prompted some speculation that it could signal a developing movement by insurers to drop that level of coverage altogether. The reality may be more complicated and interesting, some experts said, based on an analysis of plan data." (Kaiser Health News)
DOL and Treasury Update 2015-2016 Regulatory Agendas for Employee Benefits
"The DOL's agenda and related materials include 13 pending projects related to employee benefits ... . The IRS Business Plan includes 28 pending items addressing retirement benefits and 14 pending items addressing executive compensation, health care and other benefits.... There are no new projects added to the agendas since they were last published." (Sutherland Asbill & Brennan LLP)
[Guidance Overview] HHS Issues Final Rule on ACA Nondiscrimination Provisions Under Section 1557 (PDF)
"Health insurance issuers should first determine whether they receive federal financial assistance from HHS (they most likely do, so any conclusion to the contrary should be carefully reviewed).... Issuers that are related to TPAs should consider whether the TPA is 'independent' and, if not, should take steps to ensure that benefits are administered in a nondiscriminatory manner.... Employers sponsoring group health plans should first determine whether the employer receives federal financial assistance from HHS for any purpose. Employers should also ensure that benefit design decisions made by the employer in its role as a plan settlor are adequately and appropriately documented." (Groom Law Group)
[Guidance Overview] It's Time to Review Your Wellness Program Under New ADA and GINA Final Rules (And HIPAA And...)
"A chart summarizing the applicable rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Americans with Disabilities Act of 1990 (ADA) appears at the end of this [article].... The EEOC urges employers to adopt best practices to protect confidentiality of medical information and genetic information. The EEOC suggests that such practices include adoption and communication of strong privacy policies, training for individuals who handle confidential medical information, encryption of electronic files, and policies that require prompt notification of employees whose information is compromised if data breaches occur." (Drinker Biddle)
[Opinion] How to Increase Competition Under the ACA
"[M]ost of the 'new' insurance plans on the exchanges are just different iterations on health plans already being offered by legacy insurance carriers. The ACA has been devoid of the kind of brisk new health plan company formation that was seen with the launch of Medicare's Part D drug benefit and its Medicare Advantage program. The question is, why? One of the big culprits, [the authors] believe, is the cap that the ACA places on the operating margins of insurance carriers." (BDO Center for Healthcare Excellence and Innovation)
Ohio Makes a Baker's Dozen
"The state of Ohio announced [on May 26] that its CO-OP would shutter, forcing its more than 20,000 participants to find new coverage within the next 60 days. The announcement marks 13 out of the original 23 Obamacare CO-OPs that have closed its doors at a total cost to taxpayers of $1.36 billion." (Energy & Commerce Committee, U.S. House of Representatives)
[Official Guidance] Text of CMS FAQ on Waiting Periods for Essential Health Benefits (PDF)
Unnumbered document, dated May 26, 2016. "For plans that must provide coverage of the essential health benefit package under section 1302(a) of the [ACA], if an issuer imposes a waiting period before an enrollee can access a covered benefit, is that a violation of the EHB requirements? Yes.... After further consideration of whether pediatric orthodontia should be excepted from this prohibition on waiting periods, we are revising our policy to no longer allow waiting periods for pediatric orthodontia, as we have determined that the same concerns we previously noted also apply to these benefits." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
New Health Benefits Survey Shows Continued Employer Focus on Containing Costs (PDF)
"Of employers who do offer spousal coverage, 27 percent required a surcharge to cover the spouse, compared to 16 percent in 2014. The average surcharge in 2015 was $2,288, which increased from $1,730 in 2014....The average percentage of the medical premium that employees paid for single coverage in 2015 was 15 percent, which has remained relatively constant over the past several years. The average premium share for family coverage was 20 percent in 2015.... 50 percent of employers offer a plan with either an HSA or an HRA account option. This is up significantly from last year at 41 percent." (Conrad Siegel Actuaries)
The ACA's Section 1332: Escape Hatch or Straightjacket for Reform?
"In state capitols across the country, health care lobbyists and consultants are pushing a relatively unknown provision of the [ACA] (ACA): Section 1332. According to some proponents, these waivers will 'turbocharge state innovation' and will provide states with an 'exit strategy' from the ACA. But is the hype true? Will Section 1332 waivers be as truly transformative to our health care system as suggested? ... A serious, objective examination of the new Section 1332 federal guidance sparks far more questions than answers for policymakers." (Health Affairs)
[Guidance Overview] HHS Issues Final ACA Nondiscrimination in Health Programs and Activities Regulation
"The nondiscrimination provision extends to employers who as plan sponsors receive federal financial assistance to fund their employee health benefit programs; however, an employer that otherwise receives federal financial assistance does not become subject to the rule simply by offering employee health benefits.... Third-party administrators are only liable for their own discriminatory actions based on decisions that are within the scope of their authority, such as discriminatory claims denials. A discriminatory plan design would be the liability of the self-insured group health plan, with OCR reviewing whether the third-party administrator and the self-insured group health plan are legally separate on a case-by-case basis." (McDermott Will & Emery)
[Opinion] CFOs and HR Execs Face Millions in Personal Liability Due to Unmanaged Health Plans
"Employers typically have extremely rigorous oversight of retirement benefits with independent investment committees, regular audits and more. Though the same fiduciary responsibility exists for health benefits, evidence suggests that the vast majority of employers have fallen short." (Forbes)
The Cost/Benefit Analysis of Self-Funding Employee Health Benefits
"Large self-funded employers ... have the deep pockets to hire major, brand name administrators. Smaller employers sometimes end up with smaller, less sophisticated administrators, either because of cost or because they simply don't know what to look for in picking an administrator. These operational risks place a smaller employer with a self-funded plan at risk of losses, and need to be accounted for by smaller companies in, first, deciding whether to self-fund health benefits and, second, in planning how to do so." (Stephen Rosenberg, The Wagner Law Group)
Missouri Says Aetna-Humana Merger Is Anti-Competitive
"Missouri insurance officials have issued a preliminary order against the merger of Aetna and Humana, the first state to find serious antitrust problems with the massive transaction. However, Aetna and Humana have 30 days to 'submit a plan to remedy the anti-competitive impact of the acquisition.' ... But some antitrust experts aren't convinced selling off assets to another insurer will solve all concerns.... Aetna has received approval for the Humana deal in 15 out of a necessary 20 states." (Modern Healthcare Online; free registration required)
Missouri to Ban Small-Group Products of Resulting Firm If Aetna and Humana Merge
"In a preliminary order, Missouri Department of Insurance Director John Huff writes that if Aetna and Humana's deal eventually closes, the company and its subsidiaries must 'cease and desist' from doing business throughout the state in the comprehensive individual, comprehensive small-group and group Medicare Advantage markets. In the individual MA market, Aetna-Humana would have to stop doing business in certain counties in Missouri that the state has determined would be adversely affected by competition." (FierceHealthPayer)
Understanding How Payment and Benefit Designs Work Together in Health Care
"Many of those experimenting with or interested in implementing reforms don't understand the nuances of the payment methods and or benefit designs involved: their strengths and weaknesses; how to combat potential weaknesses; what performance measures should be used to counter possible unintended consequences; and how these incentives may affect provider pricing. Having a greater understanding of the nuances inherent in provider and consumer incentives can help implementers determine where their reforms fall short and how they can address those challenges." (Health Affairs)
[Guidance Overview] EEOC Final Rules on Employer Wellness Programs: What Employers Need to Know
"The EEOC rules provide a roadmap for employers to draft or revise wellness plans that, by the EEOC's standards, comply with the ADA and GINA. Specifically, employers should ensure that the information requested or medical testing involved in their wellness plans does not exceed that permitted by the rules. Additionally, employers should confirm that their wellness plans satisfy the criteria for voluntariness set forth in the final rules." (Holland & Knight)
New Overtime Rules May Affect Benefits Plans
"The laws surrounding most employee benefits plans allow various classifications to be deemed non-discriminatory as long as all those individuals within the same classification are treated the same. Therefore, some companies today may offer only certain benefits or benefits levels to certain groups of employees.... Many plans include overtime in their plan definition of compensation. The change could also affect plans that exclude overtime pay from the plan's definition of compensation if the new overtime pay causes the definition to become discriminatory in favor of highly compensated employees (HCEs)." (The Huffington Post)
Americans' Experiences with ACA Marketplace and Medicaid Coverage: Access to Care and Satisfaction
"Sixty-one percent of enrollees who had used their insurance to get care said they would not have been able to afford or access it prior to enrolling. Doctor availability and appointment wait times are similar to those reported by insured Americans overall. Majorities with marketplace or Medicaid coverage continue to be satisfied with their insurance." (The Commonwealth Fund)
Partial Self Funding and Population Health Management: Facts, Concepts, and Strategies
34 presentation slide. Topics include: [1]  Opportunity provided by the ACA; How do Fully Insured / Self Funded Plans compare ? ERISA; [2] Financial Breakdown of Self Funded Plans: A Review of Individual Components: What is Stop Loss Insurance? What are my network options ? How do you choose a Third Party Administrator? Underwriting Partially Self Funded Plans; Risk Sharing Strategies. [2] Strategies for Health Improvement and Cost Reduction: Claim Auditing; On Site Clinic; Restricted Networks; Reference Based Pricing; Telemedicine; Medical Tourism; Sample Population Health Management." (WellNet)
CMS Releases Medicare Current Beneficiary Survey (MCBS) Public Use File
"Beginning with data collected in the 2013 Medicare Current Beneficiary Survey (MCBS), a public use file (PUF) and accompanying documentation is available free for download ... The MCBS PUF is an easy to use data file with select data items that allow researchers to conduct analysis on health disparities, access to and satisfaction with healthcare, and medical conditions for community dwelling Medicare beneficiaries. The MCBS PUF ... provides a publically available alternative for those researchers interested in the health, health care use, access to and satisfaction with Medicare of beneficiaries, while providing the very highest degree of protection to the Medicare beneficiaries' protected health information meeting all necessary de-identification of the data and mitigating disclosure risk." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
[Guidance Overview] EEOC Finalizes Wellness Program Regulations
"[T]he ADA and GINA rules establish separate, but identical limits on the incentives that may be offered. An employee could receive incentives to provide information about his or her own medical conditions (under the ADA) and incentives for his or her spouse's participation in a health-risk assessment (under GINA), and each set of incentives would, on its own, need to be less than 30 percent of the total cost of self-funded coverage under the applicable plan." (Ballard Spahr LLP)
[Guidance Overview] New ADA and GINA Wellness Regs Complicate Wellness Program Compliance Analysis and Risks
"The new requirements apply regardless of whether the wellness program is part of a health plan or a free standing wellness plan.... For fiscal year plans these limits will apply in the middle of the plan year because the application of the rules to employers is effective on January 1, 2017 and there is no delay to the beginning of a plan year.... [T]he ADA and GINA apply to employers who employ fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. Thus, wellness programs for employers with fewer than fifteen employees in the current or preceding calendar year in less than the requisite number of weeks may be able to not be concerned with these rules[.]" (Winstead PC)
[Guidance Overview] Congressional Risk Corridor Payout Limits Spawning Legal Difficulties
"[One] lawsuit alleges that the federal government currently owes [failed Iowa CO-OP] Co-Opportunity over $22 million in reinsurance, risk adjustment, and risk corridor payments, as to which it currently admits liability. Beyond these admitted debts, the federal government owes Co-Opportunity $113.6 million in risk corridor payments which it is unable to pay because they exceed the amount that can be collected from insurers that owed money to the program. If all of these risk corridor funds were available, the complaint alleges, Co-Opportunity could cover the claims of its participants and repay much of the debt it owes the federal government." (Timothy Jost in Health Affairs)
Uninsurance Rates and the Affordable Care Act
"The uninsurance rate for nonelderly adults increased in the decade before the passage of the [ACA], driven by declining rates of employer-based coverage, especially during the recession at the end of the decade. The ACA was intended to decrease the percentage of the population without health insurance and to provide 'quality, affordable health care for all.' The purpose of this brief is to consider how uninsurance rates are changing under the ACA." (Robert Wood Johnson Foundation)
Federal Court Strikes Down ACA Cost Sharing Reduction Payments
"The court rejected the administration's argument that the ACA's permanent appropriation for the Advance Premium Tax Credits (APTC) also extended to CSRs, concluding that the law only appropriated funds for APTCs. Reviewing principles of appropriations law, the court held that although the statute permanently authorized CSRs as a benefit plan, it made payments 'dependent on non-permanent appropriations,' which Congress had refused to provide." [U.S. House of Representatives v. Burwell, No. 14-1967 (D.D.C. May 12, 2016) (McDermott Will & Emery)
Compliance Issues for Wellness Plans (PDF)
"This [article] provides updates and clarifies the latest wellness plan issues: [1] Latest benchmarks; [2] Compliance issues -- Health Insurance Portability and Accountability Act (HIPAA) non-discrimination rules; [3] Americans with Disabilities Act (ADA); [4] Genetic Information Non-discrimination Act (GINA); [5] State law." (Marsh & McLennan Agency LLC)
GOP Bill Would Allow States to Shift from Obamacare to Automatic Coverage
"The Cassidy/Sessions measure would give states an opportunity to back away from the law on their own, shifting to a system that would cover everyone automatically, rather than have people sign up for insurance. If states choose to go with this bill's opt-out coverage ... the United States would have close to universal health coverage, Cassidy said." (Morning Consult)
The Impact of Health Insurance on Preventive Care and Health Behaviors: Evidence from the 2014 ACA Medicaid Expansions
"[The authors] examine the impact of the expansions on preventive care ... and risky health behaviors ... [They] find evidence consistent with increased use of certain forms of preventive care such as dental visits and cancer screenings but little evidence of changes in health behaviors ... The Medicaid expansions also resulted in modest improvements in self-assessed health and decreases in the number of work days missed due to poor health." (National Bureau of Economic Research [NBER])
Uninsurance Rates and the ACA
"While reducing the number of uninsured people is just one measure of the ACA's effect, it is arguably the most important metric. Several government surveys can be used to study the number uninsured in the US population, including the Current Population Survey, the National Health Interview Survey, the American Community Survey, and the Medical Expenditure Panel Survey. The various surveys have different survey designs, field periods, health insurance coverage questions, reference periods, and survey modes, making the uninsurance estimates slightly different among each of the sources." (Health Affairs)
[Guidance Overview] EEOC Doubles Down: Final Wellness Program Rules Under ADA and GINA
"In the view of the EEOC, an employer's use of a wellness program to improve employee health and reduce health care costs does not constitute protected 'underwriting' or 'risk classification' contemplated under the safe harbor.... [T]he EEOC explains that it views the safe harbor as limited to insurer underwriting and rate-making practices in effect prior to the [ACA] and dismisses the federal court decisions, stating that both cases were wrongly decided. Because the EEOC claims that neither court held that the safe harbor unambiguously extended to wellness programs the EEOC asserts that it has the authority to provide its own statutory analysis and interpretation." (Verrill Dana LLP)
[Guidance Overview] EEOC Rules on Wellness Programs
"Up until now, what constituted compliance with the ADA and GINA was subject to debate. The [EEOC] sought to end that debate with the publication of final wellness program regulations under the ADA and GINA[.]" [Article includes charts comparing ADA and GINA requirements.] (Vorys, Sater, Seymour and Pease LLP)
[Guidance Overview] EEOC Issues Final Rules on Wellness Programs
"The EEOC rejected calls to align the EEOC's ADA regulations with those under the ACA, explaining that, because the ADA's prohibitions on discrimination apply only to applicants and employees, not to their spouses and other dependents, the ADA wellness rule does not address the incentives wellness programs may offer in connection with dependent or spousal participation (although the GINA rule does). The EEOC's explanation still leaves employers in the difficult situation of complying with multiple standards." (Littler)
HSAs Under Attack in Obamacare Exchanges
"[New HHS rules for plans offered on the exchanges] mean that [1] the specified deductibles for the plans and out-of-pocket limits to be offered in the exchanges will be outside the requirements for HSA-qualifying plans, and [2] plans will have to cover services below the deductible which are not allowed under the legal definition of HSAs." (Galen Institute)
[Guidance Overview] EEOC Issues Wellness Program Final Rules Under ADA and GINA
"HIPAA allows programs to offer up to a 50% incentive tied to tobacco use. The ADA allows a 50% level, but only if tobacco use is proven through a questionnaire (since in this event, the ADA incentive rule would not apply). Blood or saliva tests for the presence of nicotine are considered a medical exam, and therefore subject to the 30% ADA incentive limit." (Findley Davies)
[Guidance Overview] HHS Issues Final Rule on ACA Section 1557 Nondiscrimination Rules, Affecting Certain Employer-Sponsored Plans
"There was some concern under the proposed rule that, while an employer ... may not be directly liable for a self-insured plan design ... employers that use a TPA that is subject to the rule would also be effectively subjecting themselves or their plan design to Section 1557. The final rule clarifies that although Section 1557 may apply to the TPA, it does not necessarily mean that Section 1557 extends to the benefits administered by the TPA." (ADP)
Office Depot Ruling Spells Trouble for Big Health Care Mergers
"Staples recently joined Sysco, ProMedica Health System and a handful of other would-be acquirers that saw deals shot down by the courts and regulators because their merger plans would hurt a specific cluster of customers rather than a wider spectrum of their shoppers and patients.... The most important takeaway from [Federal District Judge Emmett Sullivan's Staples/Office Depot] ruling was it provided another judicial endorsement for the notion that a merger can harm competition to a group of customers that comprises only a part of the merging parties' business[.]" (
Survey of Non-Group Health Insurance Enrollees, Wave 3
"This survey, conducted ... after the close of the law's third open enrollment period, focuses on individuals who purchased ACA-compliant coverage, whether inside or outside of a Marketplace.... This report details findings ... and draws trends and comparisons using data from the first and second surveys in the series, conducted at the end of each of the previous enrollment periods in 2014 and 2015. It also draws some comparisons to the experiences and opinions of people with employer-sponsored insurance[.]" (Henry J. Kaiser Family Foundation)
HHS Testimony at Senate Committee Hearing: Impact of the ACA on Small Businesses (PDF)
"The ACA has helped small businesses and their employees in a number of ways. These include coverage expansions, small employer tax credits, and the creation of the Small Business Health Options Program (SHOP).... Overall the ACA has significantly improved coverage of people that work for small businesses. It created new markets for insurance and expanded demand for medical care and health services." (Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS])
HHS Sued Over Out-of-Network Emergency Room Reimbursement Policy
"The American College of Emergency Physicians [ACEP] is asking the U.S. District Court in Washington D.C. to overturn a rule adopted by [HHS] ... The plaintiffs allege that the rule does not meet the standards required by the [ACA] for transparency of data and fair insurance coverage for emergency patients who are 'out of network' because of a medical emergency.... ACEP says the final rule allows insurance companies to arbitrarily set their own rates and shift costs to patients. The new rule says 'minimum standards of payment are not necessary' in states that have banned balance billing." (HealthLeaders Media)
[Guidance Overview] EEOC Issues Final Regulations on Workplace Wellness Programs
"With respect to meeting the final regulations' confidentiality requirements, employers are advised to take the following action steps: [1] Adopt and communicate clear confidentiality policies. [2] Train employees who handle confidential information. [3] Encrypt health information. [4] Provide prompt notification to employees (and family members) if a breach occurs." (The Wagner Law Group)
Final ADA Wellness Rules: Five Important Changes for Wellness Programs
"[1] No gateway plans ... [2] New notice requirement ... [3] Incentive limitations -- not tobacco related ... [4] Incentive limitations -- tobacco related ... [5] Confidentiality." (Hill, Chesson & Woody)
Ensuring Access to Quality Behavioral Health Care: Health Plan Examples (PDF)
28 pages. "Beyond meeting the parity requirements of MHPAEA, health plans have demonstrated strong leadership in pioneering innovative programs to meet the health care needs of patients with mental health and substance use disorders, often through partnerships with behavioral health care organizations." (America's Health Insurance Plans [AHIP])
Paying for Value: Progress and Obstacles (PDF)
"For the most part, ... programs that combine quality measures and incentives for cost control and prudent resource use -- paying for value -- have not been in operation long enough to measure their effectiveness. Experimentation is increasing through approaches such as shared savings and bundled payment, but many questions remain about how best to define and measure value." (AcademyHealth)
Evaluating the CARE Act: Implications of a Proposal to Repeal and Replace the ACA
"[The Patient Choice, Affordability, Responsibility, and Empowerment (CARE)] Act addresses many of the criticisms of the ACA raised by those wishing to repeal and replace the law, including capping federal Medicaid funding allotments, providing premium-support subsidies for low-income individuals, and relaxing health insurance rating regulations to allow age variation in premiums along the lines of variation in spending. The CARE Act would also eliminate the individual and employer mandates. To incentivize people to obtain health insurance, the CARE Act imposes a 'continuous coverage' provision that would allow insurers to charge higher premiums or deny coverage to individuals who have not remained continuously enrolled." (The Commonwealth Fund)
[Guidance Overview] Workplace Wellness Programs: Their Characteristics and Requirements
"Questions remaining to be answered about the future impact of these rules include: Will expanding permitted use of financial incentives in participatory wellness programs promote the use of health-contingent wellness programs? ... Will expanding permitted use of financial incentives in all workplace wellness programs change information collection practices by workplace wellness programs?" (Henry J. Kaiser Family Foundation)
House Subcommittee Hearing: Is There a Better Way Than the ACA?
"Lawmakers considered health care reforms to improve pre-existing condition protections, lower patient costs, and encourage plan innovation at a hearing held by the House Committee on Energy and Commerce, Subcommittee on Health. The hearing included testimony from health reform experts on the ways the [ACA] has aided or hindered the advancement of health care and experts offered recommendations for how the health reform law can be advanced or altered to improve the industry." (Wolters Kluwer Law & Business)
2016 Employer-Sponsored Health Care: ACA's Impact (PDF)
58 pages. "Topics addressed include employer concerns about plan design and funding, methods for communicating with employees, reactions to health insurance exchanges and the upcoming 2020 excise tax, cost-management initiatives, the potential impact on health care benefit costs, reactions to reporting and disclosure requirements and opinions about the law and its future.... Surveyed employers range in size from fewer than 50 employees to more than 10,000." (International Foundation of Employee Benefit Plans [IFEBP])
[Guidance Overview] EEOC Releases Final Wellness Regs Under the ADA and GINA
"Certain portions of these final EEOC regulations (namely provisions relating to a notice requirement, the 30 percent limit on incentives for participation in a wellness plan, and the GINA rules that apply to spousal Health Risk Assessments (HRAs)) are effective for plan years beginning on and after January 1, 2017. However, the EEOC's position is that the remainder of these final regulations merely clarify and reinforce existing statutory obligations under the ADA and GINA, and apply both before and after May 17, 2016. Thus, these regulations require immediate attention." (Vedder Price)
Cost Control Strategies in an ACA World: Strategies vs. Tactics
"A strategic approach to cost control is effective because it addresses the underlying problems in health plan design that lead to cost increases, rather than simply treating the symptoms by cutting benefits or increasing employee contributions.... The majority of employers are using tactics -- not a deliberate, well-thought-out strategy. As a result of not having a strategy, cost control becomes a haphazard paper-pushing exercise rather than a management objective." (Marsh Consulting Group)
[Guidance Overview] EEOC Releases Wellness Regs Under ADA and GINA
"The biggest change under the regulations is a reduction in the value of incentives that employers can offer under a wellness arrangement subject to the ADA or GINA, and that such limits apply to all types of wellness programs, not just health outcome-based. This is a narrowing of the limits set forth under [HIPAA].... [T]he ADA limits do not apply if there is no disability inquiry or medical examination under the wellness program. Similarly, the GINA limits would not apply if there is no request for genetic information[.]" (Michael Best & Friedrich LLP)
[Guidance Overview] EEOC Issues Final Rules on Wellness Programs
"The preamble states that because the ADA's prohibitions on discrimination apply only to employees, not their spouses and other dependents, the ADA rules do not address the incentives that wellness programs may offer in connection with dependent or spousal participation. Therefore, sponsors are left with the incentive limits for spouses that would apply under HIPAA or GINA.... The EEOC goes to great lengths in the final rules to justify their position that the ADA benefit plan safe harbor does not apply to wellness programs. Note that court decisions are to the contrary, and place in jeopardy the legality of the final rules." (Seyfarth Shaw LLP)
Even If ACA Were to Be Repealed, Employers Would Keep Some Provisions
"78% of employers would keep in place at least some of the provisions they have already implemented in their health plans. Employers also report a wide-range of provisions they would like to see reinstated in new legislation if the ACA is repealed, with the top being elimination of preexisting condition exclusions (38%), coverage of adult children to age 26 (31%) and increased wellness incentives (31%)." (PLANSPONSOR)
[Guidance Overview] Treasury Regs Clarify That Partners Providing Services to a Disregarded Entity Owned by the Partnership Are Treated as Self-Employed
"In response to certain practitioners interpreting the regulation to permit partners to be treated as employees of the disregarded entity and allowing such partners to participate in a disregarded entity's tax-favored employee benefit plans, the Treasury Department issued these regulations to clarify that if a partnership is the owner of a disregarded entity, the partners of such partnership are subject to the same self-employment tax rules as if they directly owned the disregarded entity. As a result, such partners cannot be employees of the disregarded entity and should not be eligible to participate in certain tax-favored employee benefit plans of the disregarded entity." (Haynes and Boone, LLP)
[Opinion] The Cadillac Tax: How It's Threatening Health Care Consumerism
"[A]lmost 19 percent of large companies have already curtailed or canceled their FSA programs and 13 percent have dealt similarly with their HSAs. It is obvious that the tax is already having an impact, despite the two-year delay.... This number of companies dropping consumer-directed accounts will likely grow over time because after 2020, the limits will be adjusted for future changes in the consumer price index. While employers plan for these long-term changes, many are also considering imposing additional fees to cover employees' spouses or even exclude them from coverage completely." (Martin Trussell, Executive Director of ECFC, via The Institute for HealthCare Consumerism [IHCC])
EEOC: Wellness Plans Must Improve Health or Prevent Disease
"Unchanged from the proposed rules, both final rules specify that participation in an incentive program must be completely voluntary and under GINA that the participating employee's spouse must provide a plan with prior, knowing, voluntary and written participation authorization. According to the final ADA rules, a wellness program is considered voluntary if it doesn't require employees to participate, doesn't deny coverage for non-participation, doesn't coerce employees to participate and provides employees with a notice concerning information collected." (Bloomberg BNA)
House Committee Leaders Press Last Surviving Obamacare CO-OPs for Updates on Viability
"CMS has placed at least eight of the remaining 11 CO-OPs on 'Enhanced Oversight' or 'Corrective Action' Plans.... After reviewing these oversight plans, the Committee is concerned that CMS has not taken the appropriate steps to ensure that the remaining CO-OPs will be financially solvent for the remainder of the year. Federal taxpayers have invested over $1 billion into the remaining 11 CO-OPs. Especially considering this substantial taxpayer investment, the Committee wants to ensure CMS is taking the necessary and appropriate steps to keep these CO-OPs afloat." (Energy & Commerce Committee, U.S. House of Representatives)
Overtime Pay Changes Will Affect Employee Benefits, Too
"For self-funded health plans subject to Section 105(h) nondiscrimination rules, it's particularly difficult to alter eligibility terms between hourly and salaried employees ... Higher overtime costs could make it more likely that dental, vision and disability coverage are turned into employee-paid voluntary benefits." (Society for Human Resource Management [SHRM])
[Guidance Overview] EEOC Final Wellness Program Rules Reflect Split Over ADA Insurance Safe Harbor
"[T]he EEOC continues to believe that the ADA's safe harbor for insurance does not apply to an employer's decision to offer rewards or impose penalties regarding wellness programs that include disability-related inquiries or medical examinations ... The EEOC expressly disagrees with two district court decisions that applied the insurance safe harbor to permit the imposition of penalties on employees who do not answer disability-related questions or undergo medical examinations in connection with wellness programs." (Practical Law Company)
[Guidance Overview] Final ACA Nondiscrimination Rules Target Insurers and TPAs
"HHS acknowledged commenters' concerns that a TPA that administers a self-insured plan could be held liable for benefit plan design features that are discriminatory under Section 1557, but over which the TPA has no control. In this situation, HHS will assess whether responsibility for an alleged discriminatory decision or action rests with the TPA or the employer. If the TPA is responsible, HHS will process the complaint against the TPA.... [If] responsibility for an alleged discriminatory decision or action rests with an employer that is not subject to Section 1557 (so that HHS lacks jurisdiction over the employer), HHS indicated that it will refer or transfer the matter to the EEOC and let the EEOC address the issue." (Practical Law Company)

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