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Employee Benefits: Yesterday, Today and Tomorrow
"This Issue Brief summarizes the presentations and discussions at EBRI's 73rd policy forum held in Washington, DC, on Dec. 12, 2013.... [T]he symposium offered expert perspectives on not only the workplace and work force of the past, but the challenges of today's multi-generational workplace, and the difficulties and opportunities that lie ahead. Following a review of the benefits landscape by EBRI's research team, panels discussed: [1] 1978 to 2013: The Changing Role of Employers in Employee Benefits; [2] Employee Benefits from 2013 to 2048: The Road to Tomorrow; [3] 2013 to 2048: Work Force Trends and Preferences, Today and Tomorrow." (Employee Benefit Research Institute [EBRI])
UnitedHealthcare Ups the Ante on Price, Provider Shopping
"The nation's largest health insurer is making its free mobile app available to everyone, in a bid to move the needle on price transparency. Anyone, not members, can now use UnitedHealthcare's free and recently-updated mobile application, Health4Me. The mobile app, available in iTunes and Android and downloaded by more than 900,000 members, offers individuals the ability to locate nearby hospitals, emergency rooms and urgent care facilities and review average local prices for 520 services across 290 episodes of care, with a cost estimator based on tests and treatments." (Healthcare Payer News)
Business Groups, Consumer Advocates Draw Lines in the Sand Over Essential Benefits
"The essential health benefits (EHBs) countdown is on for 2016. That's when this provision of the [ACA], which sets out 10 specific health services that must be covered by plans sold on the exchanges, will likely be reviewed by [HHS]. Business interests and consumer advocates are already making their positions clear -- the former pushing for greater consciousness of premium costs and the latter looking to safeguard consumers' coverage." (Kaiser Health News)
Survey of Business Conditions Reveals Impacts of ACA on CFO Business Strategies (PDF)
"Only 18% of CFOs say their companies have changed their staffing model/headcount management as a direct result of ACA.... [A] slim plurality (43%) say employee out-of-pocket expenses are up (versus 39% stayed the same) and just 33% said employee contribution percentages are increasing (versus 47% reporting they stayed the same).... [I]nsured arrangements are the most prevalent, with exchanges being the least. Responses indicated a sizable shift for both -- with insured arrangements dropping and the use of exchanges increasing (from 6% to 15% in 3 years)." (Tatum)
[Official Guidance] Text of Corrections to HHS Final Regs on ACA Exchange and Insurance Market Standards for 2015 and Later Years
8 pages. Excerpt: "This document corrects technical and typographical errors that appeared in the final rule, published in the Federal Register on May 27, 2014, entitled 'Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond.' These corrections are effective on July 28, 2014." (U.S. Department of Health and Human Services)
Notice of ERISA Advisory Council Meeting: August 19-21, 2014
"The Advisory Council will study the following issues: (1) Outsourcing Employee Benefit Plan Services, (2) [Pharmacy Benefit Manager (PBM)] Compensation and Fee Disclosure, and (3) Issues and Considerations around Facilitating Lifetime Plan Participation. The schedule for testimony and discussion of these issues generally will be one issue per day in the order noted above.... Organizations or members of the public wishing to submit a written statement may do so by submitting 40 copies on or before August 12, 2014[.]" (Employee Benefits Security Administration [EBSA], U.S. Department of Labor)
Obama Administration to Revise Part of Contraception Rule Applicable to Nonprofit Religious Organizations
"Justice Department lawyers said in a brief filed Tuesday with the U.S. Court of Appeals for the 10th Circuit that the federal government would issue new regulations in the next month that will apply to all nonprofit institutions that say the faith with which they are affiliated is opposed to the use of most forms of contraception.... [It] is likely that the Supreme Court's order will shape the new compromise arrangement, and that nonprofit institutions will be able to write a letter stating their objections, rather than filing a form. That would leave the federal government to work out how those employers get access to contraception coverage." (The Wall Street Journal; subscription may be required)
Court Overturns Obamacare Aid for Plan Buyers on Federal Exchange
"The decision, if it withstands appeals, may deprive more than half the people who signed up for Obamacare the tax credits they need to buy a health plan. The government will immediately seek review of the court's decision and in the meantime nothing has changed for people getting premium tax credits, Justice Department spokeswoman Emily Pierce said. A White House official said the U.S. will seek a review by the full appeals court, where seven of the 11 judges were nominated by Democratic presidents, including four by Obama." [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014)] (Bloomberg)
A D.C. Court Ruled Against Obamacare. Here's What Happens Next.
"Responding to the news about Halbig, the Obama administration immediately stressed: Plan purchases through the marketplaces will continue as normal, and there will be 'no practical impact' on tax credits ... But at minimum, a case that some legal watchers initially dismissed as DOA suddenly is in position to deal a major blow to the [ACA].... If the Halbig ruling stands ... premium payments could rise by about 76% in states that rely on federally facilitated exchanges. Florida residents, for example, could see their insurance premiums go up by about 95%." (The Advisory Board Company)
[Opinion] Issa Statement on Federal Circuit Court Upholding Challenge to Obamacare
"'The court's decision is consistent with the Committee's oversight, which through multiple briefings and hearings, learned that neither the Internal Revenue Service nor the Treasury Department conducted a serious or thorough analysis of the statute or the legislative history and intent prior to cobbling an ad hoc legal rationale for a key provision of the President's healthcare law,' said [House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif]." (Committee on Oversight and Government Reform, U.S. House of Representatives)
Subsidies in the Federal Marketplace: A Definite Maybe
"For employers, this split may have some significant impact on their ACA compliance planning.... [E]mployers are making decisions regarding offering coverage based on the assumption that it will be cheaper for employees to get subsidized coverage through the exchange. But if the subsidy is not available because there is no state exchange, that assumption may not be correct." (Fox Rothschild LLP)
Two Circuits Issue Conflicting Rulings on ACA Subsidies Available Through Federal Exchange
"In the space of less than two hours, two federal appeals court panels issued conflicting rulings on whether the government can lawfully subsidize premiums for consumers in 36 states that use the federal insurance exchange.... 'We reach this conclusion, frankly, with reluctance,' wrote [D.C.] Circuit Judge Thomas Griffith in the majority's opinion. 'At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still'[.] " [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014); King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014)] (Courthouse News Service)
Text of Fourth Circuit Opinion: ACA Subsidies ARE Legally Allowed for Policies Purchased on Federally-Run Exchanges (PDF)
46 pages. Excerpt: "Having examined the plain language and context of the most relevant statutory sections, the context and structure of related provisions, and the legislative history of the Act, we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run Exchanges.... What we must decide is whether the statute permits the IRS to decide whether the tax credits would be available on federal Exchanges. In answering this question in the affirmative we are primarily persuaded by the IRS Rule's advancement of the broad policy goals of the Act... Confronted with the Act's ambiguity, the IRS crafted a rule ensuring the credits' broad availability and furthering the goals of the law. In the face of this permissible construction, we must defer to the IRS Rule." [King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014)] (U.S. Court of Appeals for the Fourth Circuit)
Appellate Courts Issue Conflicting Opinions on Legality of ACA Subsidies
"The White House rejected the [District of Columbia] court's ruling and anticipated that the Justice Department will ask that the entire appeals court review it. Mr. Obama's aides noted that two district courts have thrown out similar lawsuits and therefore argued that judicial opinions have been mixed at worst. Moreover, they said the ruling Tuesday seemed to fly in the face of common sense." (The New York Times; subscription may be required)
Major New Blow to the Affordable Care Act
"Conceding that the ruling will sharply reduce the number of uninsured individuals who will be able to gain coverage under the Affordable Care Act, the Circuit Court majority said the plain language of the Act is that the subsidies -- in the form of tax credits to those with limited incomes were to be available only on marketplaces 'established by the state.'" [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014)] (SCOTUSblog)
Text of D.C. Circuit Court of Appeals Opinion: ACA Subsidies Are NOT Legally Allowed for Policies Purchased on Federally-Run Exchanges (PDF)
72 pages. Excerpt: "We conclude that appellants have the better of the argument: a federal Exchange is not an 'Exchange established by the State,' and section 36B does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges. We reach this conclusion by the following path: First, we examine section 36B in light of sections 1311 and 1321, which authorize the establishment of state and federal Exchanges, respectively, and conclude that section 36B plainly distinguishes Exchanges established by states from those established by the federal government. We then consider the government's arguments that this construction generates absurd results but find that it does not render other provisions of the ACA unworkable, let alone so unreasonable as to justify disregarding section 36B's plain meaning. Finally, turning to the ACA's purpose and legislative history, we find that the government again comes up short in its efforts to overcome the statutory text." [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014)] (U.S. Court of Appeals for the District of Columbia Circuit)
Federal Appeals Court Deals Major Blow to ACA: No Subsidies for Insurance Purchased on Federal Exchanges
"The three-judge panel of the D.C. Circuit Court of Appeals sided with plaintiffs who argued that the language of the law barred the government from giving subsidies to people in states that chose not to set up their own insurance marketplaces. Twenty-seven states, most with Republican leaders who oppose the law, decided against setting up marketplaces, and another nine states partially opted out.... [If] subsidies for half the states are barred, it represents a potentially crippling blow to the health-care law, which relies on the subsidies to make insurance affordable for millions of low- and middle-income Americans." [Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014)] (The Washington Post; subscription may be required)
[Guidance Overview] Updated EEOC Enforcement Guidance Impacts Health Benefits
"If the plan covers preexisting conditions, it must cover the costs of an insured employee's preexisting pregnancy.... If the plan covers a certain percentage of the medical costs for non-pregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related conditions. If the medical benefits are subject to a deductible, pregnancy-related medical costs may not be subject to a higher deductible.... [Employers] need not provide the same level of medical coverage to their employees' wives as they provide to female employees." (Practical Law Company)
[Guidance Overview] Getting Ready for 2015: How Government Contractors, Health Care Reform, and the Family Medical Leave Act Intersect
"[G]overnment contractors who perform work covered by the [Service Contract Act] might be confusing how they satisfy their health and welfare fringe benefit obligations ... in coordination with health care requirements under the ACA, no matter how many FTEs that government contractor might have ... [The authors are finding] more and more problematic situations, as government contractors are examining their existing practices now and tweaking their health plans, in anticipation of open enrollment this coming Fall 2014, for the 2015 plan year." (Jackson Lewis)
January 2014 Census Shows 17.4 Million Enrollees in HSA-Eligible High Deductible Health Plans
"The number of enrollees with HSA/HDHPs rose to nearly 17.4 million in January 2014, up from 15.5 million in January 2013, 13.5 million in January 2012 and 11.4 million in January 2011; an average annual growth rate of approximately 15 percent since 2011.... Most enrollment gains in the HSA/HDHP market in 2014 were in the large group market." (America's Health Insurance Plans [AHIP])
Halbig v. Burwell: Potential Implications for ACA Coverage and Subsidies
"With 34 states having chosen to leave administration of their Marketplaces to the federal government, a decision for the plaintiff could have broad implications. In 2016, 7.3 million people in these states are estimated to receive federal subsidies totaling $36.1 billion, ranging up to $4.8 billion in Florida and $5.6 billion in Texas." (Urban Institute)
[Guidance Overview] Hobby Lobby Response, ACA in the Territories, and 2015 Enrollment for Those Whose Coverage Was Terminated in 2014 for Nonpayment
"[C]losely held corporations that intend not to cover or to discontinue covering of all or some contraceptive services under the Hobby Lobby decision because of their religious beliefs must give notice to their plan participants and beneficiaries of their decision.... Although the market reforms do not apply to group health insurers in the territories, they do apply to group health plans, insured or self-insured, which must comply with them.... The [July 16, 2014 HHS] Enrollment Bulletin discusses how insurers in the federally facilitated exchange should handle various complex situations that will arise when individuals terminated in 2014 for nonpayment reenroll in 2015." (Timothy Jost, in Health Affairs)
Health Insurance and Retirement Decisions
"[The authors] study two important SSA priority areas: first, to what extent do people remain in the labor force until age 65 in order to maintain health insurance for themselves (and after age 65 to maintain health insurance for their spouses)? Second, do early retirees have poorer health than others and does the availability of Medicare interact with their decision to claim benefits?" (University of Michigan Retirement Research Center)
To Prevent Surprise Bills, Possible ACA Regs Could Widen Insurer Networks
"June 27 was the deadline for insurers to file applications with the Obama administration if they wanted to sell insurance next year in the federal marketplace serving 36 states.... In their applications, insurers were required to list every doctor, hospital and pharmacy in their networks. Federal officials are analyzing the adequacy of those networks with the same computer software they have used to evaluate Medicare Advantage plans." (The New York Times; subscription may be required)
[Opinion] USA's Biggest Health Insurer Embraces Obamacare After Sitting Out Year 1: A Shrewd Decision
"A carrier laying back the first year will have the advantage of coming into the market after the first year carriers, particularly the big Blue Cross plans, have harvested most of the initial market share and with it all of those first year people who were pretty sick and wanting to take advantage of the new Obamacare underwriting reforms to finally get themselves covered. Yes, these people can change carriers the second year but they likely won't -- particularly if they are sick and worried about their provider relationships.... [UnitedHealthcare's] strategy of laying back a year ... [to make] sure in 2015 to be able to keep and compete for the more healthy pre-Obamacare legacy business looks like a very savvy underwriting move[.]" (Bob Laszewski's Health Care Policy and Marketplace Review)
[Guidance Overview] Important Wellness Plan and Mental Health/substance Use Disorder Parity Effective Dates Have Arrived
"Check the applicable year for all of your health plans and policies immediately! For MHPAEA, for July 1 plan or policy years, contact your advisors to make sure that your plans and policies currently comply with the new MHPAEA rules. For wellness, for plan or policy years beginning from January 1, 2014 to date, contact your advisors to make sure that your plans and policies currently comply with the new wellness regulations." (Mintz Levin)
2014 Mid-Year Supreme Court Case Review
"The 2013-2014 term of the Supreme Court of the United States produced opinions that will have substantial effects on the design and administration of most employee benefits plans. This summary highlights three key decisions, one significant procedural ruling, and an emerging issue likely headed for Supreme Court review, all of which deserve the attention of employee benefits professionals." [Items include Limitations Periods; Presumption of Prudence; Mandated Provision of Contraceptives (Private Companies); Mandated Provision of Contraceptives (Church-Affiliated Organizations); and The Scope of the "Church Plan" Exception.] (Verrill Dana LLP)
2014 Mid-Year Compliance Update
"While 2014 has been a relatively quiet year in terms of new rules affecting retirement plans, the January 1, 2015 effective date for the Affordable Care Act employer shared responsibility mandate is now in sight. This summary discusses a few key developments regarding employee benefit plans -- especially group health plans -- for employers to consider as they move into the second half of 2014." [Items include Benefit Plan Definitions of "Spouse" After the Windsor Decision; PCORI Fee; Breast Cancer Medications; Health Plan Identifier Number Requirement; Information Reporting under Code Sections 6055 and 6056; Amendment Deadline for FSA Limits; Health Care Reform Update; more.] (Verrill Dana LLP)
Biggest Insurer Drops Caution, Embraces Obamacare Marketplaces
"UnitedHealthcare, the insurance giant that largely sat out the health law's online marketplaces' first year, ... may sell policies through the exchanges in nearly half the states next year.... UnitedHealthcare sells individual policies through government exchanges in only four states now." (Kaiser Health News)
Halbig v. Burwell: Potential Implications for ACA Coverage and Subsidies
"[R]esearchers estimate that 7.3 million people, or about 62 percent of the 11.8 million people expected to enroll in federally facilitated marketplaces by 2016, could lose out on $36.1 billion in subsidies. Residents in Texas and Florida would lose the most, $5.6 billion and $4.8 billion respectively in subsidies at risk in this court decision." (Robert Wood Johnson Foundation)
2014 Benefits Strategy and Benchmarking Survey (PDF)
36 pages. Excerpt: "Only 31% of organizations have quantified the cost of healthcare reform.... Increasing employees' plan contributions was the most popular healthcare cost containment strategy in 2014.... Ninety percent (90%) of organizations do not have a written total rewards or strategic benefits plan with measurable objectives.... Sixty-three percent (63%) of employers reported that their benefit expenses account for 20% or more of their total compensation spend.... Email communications were the most popular benefits communication method for employers with 100 or more FTEs." (Arthur J. Gallagher & Co.)
Access to Primary and Preventive Health Care Across States Prior to the Coverage Expansions of the ACA
16 pages. Excerpt: "This issue brief compares access to primary care and receipt of preventive care among adults under age 65 by state in 2012, and examines differences by insurance and income within states. The findings reveal wide state differences prior to the major insurance expansions of the [ACA]. It also finds a steep income divide within most states ... [T]his brief provides baseline data for states and the nation to track and assess change in access." [Also available: an 8-slide 'Chartpack'.] (The Commonwealth Fund)
Exploring the Use of Reference Pricing by Insurers and Employers
"[R]eference pricing may be a promising cost-control strategy when applied to frequently performed, non-emergency tests and procedures where the prices charged vary widely across providers but the quality of results remains largely similar.... However, some experts are concerned about the impact of reference pricing on consumers, particularly the potential for poor communication with plan enrollees, who may unknowingly choose high-cost providers and incur thousands of dollars in medical bills as a result." (Robert Wood Johnson Foundation)
[Official Guidance] Text of DOL Frequently Asked Questions, Part XX: Notice Requirements for Cessation of Coverage of Contraceptive Services
"Q. My closely held for-profit corporation's health plan will cease providing coverage for some or all contraceptive services mid-plan year. Does this reduction in coverage trigger any notice requirements to plan participants and beneficiaries? Answer: Yes. For plans subject to [ERISA] ERISA requires disclosure of information relevant to coverage of preventive services, including contraceptive coverage. Specifically, the [DOL's] longstanding regulations at 29 CFR 2520.102-3(j)(3) provide that, the summary plan description (SPD) shall include a description of the extent to which preventive services (which includes contraceptive services) are covered under the plan." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
A Survey of State Policies on Provider Market Power (PDF)
60 pages. Excerpt: "[T]his paper catalogues existing state statutes and regulations that address the contracting practices of health plans and providers likely to reduce competition and lead to higher prices. In doing so, this paper provides insight into the current scope of state authority to regulate and monitor health care prices. In addition, because states may pursue policies that would not be captured in a review of laws and regulations, this paper also explores efforts beyond the legislative realm by states taking an active role to address these issues." (National Academy of Social Insurance [NASI])
Courts Will Need to Determine Boundaries of Supreme Court's Hobby Lobby Decision
"[It] remains to be seen whether the challenges may expand to other faith-based objections.... [A] group of religious leaders has already written a letter to President Obama in light of Hobby Lobby arguing for a RFRA exemption to a pending executive order that would prohibit federal contractors from discriminating against LGBT individuals in hiring practices. However, the courts may cast a critical eye on these claims, as Justice Alito's opinion cautioned that the decision should not be read to provide a shield for discrimination[.]" (Seyfarth Shaw LLP)
[Guidance Overview] California Progresses Towards Parity with ACA Waiting Period Rule
"[O]nce passed the bill will: [1] permit California-licensed carriers and HMOs to administer employer-imposed eligibility waiting periods so long as they do not exceed the ACA's 90-day limit, and [2] prohibit such carriers and HMOs from imposing any separate, additional affiliation or waiting periods. Pending passage of this bill, it appears that California carriers and HMOs are writing coverage without requiring that employers limit waiting periods to 60 days in accordance with AB 1083 as codified in the California Insurance and Health and Safety Codes. Those provisions went into effect on January 1, 2014 but almost immediately met resistance from brokers and benefit advisors and their clients." (E is for ERISA)
Federal Employees to Get More Flexibility for Dental and Vision Coverage
"Federal employees who get married on the job, or return to work after a period of leave without pay, soon will be able to enroll for dental and vision coverage outside of Open Season.... [The] final rule [makes] it easier for feds with certain 'qualifying life events' to change their dental and vision benefits close to when the event occurs, rather than waiting for the annual open season window in November. The purpose of the 'expanded enrollment opportunities' is to 'better align' the Federal Employee Dental and Vision Insurance Program with enrollees' overall health care plan when their life circumstances change[.]" (Government Executive)
When Did Benefits Become a Burden?
"[A]ccording to the Bureau of Labor Statistics, only 73% of private industry workers who were offered employer-sponsored medical benefits choose to participate, and 64% of all private workers have access to a retirement plan in which 49% of all private workers with or without access participate, for a take-up rate of 76% ... The fact that HR departments are spending more time and resources coupled with the fact that employee benefit plans are not being fully utilized by employees can create a frustrating combination." (PLANSPONSOR)
[Guidance Overview] EEOC Issues Pregnancy Discrimination Enforcement Guidance But Two Commissioners Object
"Commissioners Constance Barker and Victoria Lipnic issued public statements opposing the Guidance. Both commissioners questioned the EEOC's decision not to make the draft guidance available for public review and comment before it was issued. In addition, they questioned the Guidance's timing, given the Supreme Court's decision to hear [Young v. UPS] in its next term. Commissioner Barker ... argued that the majority's interpretation of the PDA is without legal basis.... Commissioner Lipnic noted that the Guidance regarding contraception requires review in light of the Supreme Court's decision in Hobby Lobby Stores, which held that certain employers may not lawfully be compelled to provide all forms of contraception." (Morgan Lewis)
Senate Fails to Pass Bill to Overturn Hobby Lobby Decision
"In a 56-43 vote, which was largely along party lines, Democrats came up short of the 60 votes needed to advance their legislation. It sought to prevent companies from relying on a religious-freedom law to avoid complying with the Affordable Care Act's requirement to cover all forms of contraception approved by the government without charging workers a copayment." (The Wall Street Journal; subscription may be required)
Most Small Business Employees Dissatisfied with Benefits
"Only 12% of small business employees say they are extremely satisfied with their benefits and only 14% say their benefits package meets their current family needs extremely well ... What's more, nearly six in 10 (57%) small-business workers said they're likely to accept jobs with slightly lower compensation but better benefits." (Employee Benefit News)
How Did the ACA Affect Employer-Sponsored Insurance?
"Most people think that the [ACA] has focused on decreasing uninsurance rates by creating health insurance exchanges, providing subsidies for health insurance premiums for these exchanges, and expanding Medicaid.... Less well known is that the ACA also affected the 156 million Americans insured through an employer-sponsored plan." (Healthcare Economist)
[Official Guidance] Text of Updated EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues
"The [EEOC has] issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses.... Among other issues, the guidance discusses ... [the] requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms[.]" [Editor's note: The guidance includes requirements for employer-provided health insurance.] (U.S. Equal Employment Opportunity Commission [EEOC])
[Guidance Overview] EEOC's Enforcement Guidance on Pregnancy Takes Two Controversial Positions
"[T]he EEOC acknowledged the recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., which held that private, closely held corporations could refuse to provide contraception coverage if it violated their religious beliefs. The EEOC, however, reiterated its position that all other employers may be liable for violating Title VII if they deny contraceptive coverage." (Fox Rothschild LLP)
[Guidance Overview] Can Offers of Group Health Plan Coverage Under Section 4980H Qualify as 'Bona Fide Fringe Benefits' for Service Contract Act Purposes?
"If an offer of group health plan coverage for ACA purposes is determined to be a benefits mandate ... the coverage would not count toward the [Service Contract Act's (SCA's)] $3.71/hour fringe benefit requirement. Small employers that are not subject to the ACA's employer shared responsibility requirements will have a competitive advantage over the other two employer cohorts, since they will have no Code Section 4980H exposure.... Why is it that, when an employer offers only group health plan coverage as the SCA bona fide fringe benefit, the contribution is treated as being provided by the employer, but where a similarly situated employee is offered a choice between group health plan coverage and cash, the contribution is treated as being provided by the employee?" (Mintz Levin)
[Guidance Overview] EEOC Pregnancy Discrimination Enforcement Guidance Implicates Contraception Coverage Concerns
"[T]he Guidance provides that employers violate Title VII by providing health insurance that excludes coverage for prescription contraceptives, whether the contraceptives are provided for birth control or medical purposes.... [In] order to comply with Title VII, employer provided health plans must cover prescription contraceptives on the same basis as other prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy: if an employer provided health plan covers preventive care for vaccinations, physical examinations and prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives must also be covered." (Jackson Lewis)
Private Health Exchanges: Answers to Some Employer Questions
"What is the difference between the defined contribution model and the traditional cafeteria plan? ... Will defined contribution mean that employees will buy individually owned insurance? ... How can a multiple carrier, 'employee choice' offering be price competitive? Won't risk selection make that type of arrangement more expensive for group plans? ... How can private exchanges provide assistance to employees that go to the public exchanges?" (bswift)
CBO Considers Options to Limit Tax Exclusion for Employer-Based Coverage
"While these proposals would increase government tax revenue, the unintended consequences could be substantial.... The CBO's review is positioned as '... being circulated to stimulate discussion and critical comment as developmental work for analysis of interest to members of Congress.' In its presentation, the agency projects the effect of the status quo and three possible options, by 2017, on health care coverage provided through exchange plans, employer-sponsored plans, Medicaid, the Children's Health Insurance Program (CHIP) and the number of uninsured." (HighRoads)
Health Care Under ACA Is Not Better, According To Small Business Owners
"Fifty-one percent of independent business owners recently surveyed reported that their companies' health care is neither better nor more affordable under health care reform. Not only that, but, now that the [ACA] has been implemented, 34 percent of those surveyed said they are unsatisfied with their current health care, and 21 percent are unsure." (Wolters Kluwer Law & Business)
[Official Guidance] Treasury Department Circular No. 230 (Rev. 6-2014): Regulations Governing Practice Before the Internal Revenue Service (PDF)
The IRS on June 9 finalized Circular 230 regulations (TD 9668), which adopted the approach taken in the proposed regulations, namely eliminating the covered opinion rules in former Circular 230 section 10.35 and instead subjecting all written tax advice to one standard under a revised section 10.37. This June 2014 revision and restatement of Circular 230 reflects the final regulations. (Internal Revenue Service [IRS])
[Opinion] The Halbig Cases: Timothy Jost Responds
"There is in fact not a shred of evidence that Congress meant to limit tax credits to state-operated exchanges. The heads of the House and Senate committees that drafted the legislation, stated in briefs filed in court that the text, purpose, and history of the Affordable Care Act establish that both federally facilitated and state-operated exchanges are authorized to issue premium tax credits.... There is a school of thought, however, that believes that it does not matter what Congress means; all that matters is the language it uses in a law." (Forbes)
[Guidance Overview] Wellness Programs After the Affordable Care Act
"Wellness programs can be used to make employees aware of health issues that might otherwise go undetected, which might result in significant savings to the employer in terms of lost productivity and the employer's medical plan in terms of claims avoidance. Although the myriad laws impacting wellness programs may seem overwhelming, it is quite possible to design a compliant and cost-effective wellness program that has the potential for significant benefits to the employee and the employer." (Nixon Peabody LLP)
Midyear Check on Health Plan Compliance
"If you sponsor or administer a group health plan, you are almost certainly taking steps to prepare for legal requirements that will become effective on or before January 1, 2015. New rules under HIPAA, the Affordable Care Act (ACA), and other laws will affect your plans. As we pass the midpoint of 2014, it is an appropriate time to take stock of the measures you have completed and those you will need to take regarding recent guidance." (Ballard Spahr LLP)
Employers Requiring Workers to Pay More as Health Costs Continue to Rise
"The increase in health care costs was 4.5 percent in 2013, compared with earlier projections of 5.4 percent. The expected annual increase for 2014 is 5.3 percent. Some 38 percent of employers said they have increased employee cost sharing through medical plan design changes, and 47 percent said they are considering further hikes[.]" (Bloomberg BNA)
How Do Leaders Prepare Their Companies to Succeed Amid Changes Brought on by the ACA?
"[T]he move to exchanges is inevitable. The size of the health care problem is so large and so daunting that you need to bring size and economies of scale to bear on the problem to have any hope of a real solution.... [E]mployers will make the move more rapidly with the retirees. For active employees, ... the move will come slowly.... A solution like a single-payer system -- which would obviously get to huge economies of scale -- is politically untenable." (HighRoads)
Potential Trouble When Providers Waive Copays or Deductibles
"Providers sometimes waive patients' cost-sharing amounts (e.g., copays or deductibles) as an accommodation to the patient ... [or] employee benefit ... [D]oing so may violate fraud and abuse laws and/or payor contracts.... [P]ayors often contract with providers to pay based in part on the provider's usual charges. The Office of Inspector General has argued that a provider who routinely waives copays is misrepresenting its actual charges. Second, and more importantly, payors require copays to discourage overutilization and reduce costs. Waiving copays and deductibles removes the disincentive for utilization, thereby potentially increasing payor costs." (Holland & Hart LLP)
New 'Hobby Lobby' Bill Raises Questions About What Else Employers May Be Required to Cover
"Although large employer plans are not specifically required to cover 'essential health benefits' under the ACA, it is an open question what set of benefits an employer must offer to meet the [HHS] minimum value standard and calculator in order to avoid the ACA's employer penalty. Moreover, this political debate could easily shift to other health care benefits proponents believe employers should be required to cover." (HR Policy Association)
U.S. Uninsured Rate Sinks to 13.4% in Second Quarter
"The previous low point was 14.4% in the third quarter of 2008.... While 18- to 64-year-olds are most likely to have health insurance through a current or former employer (43.5%), more reported having self-funded insurance coverage in the second quarter than did before the healthcare exchanges opened in October 2013. For Americans younger than 65, 20.7% say they have a health insurance plan they or a family member pay for, compared with 16.7% in August-September 2013." (Gallup)
[Guidance Overview] California Governor Signs Bill Giving Small Businesses Extra Time to Comply with ACA
"For many of the approximately 250,000 California employers in the small-group market, SB 1446 will offer additional time to secure ACA-compliant coverage and make needed adjustments to health plans to manage cost increases that may result from the new requirements. Beginning in 2015, the Small Business Health Options Program (SHOP), which is operated by the California insurance marketplace (Covered California) will be open to smaller employers and will offer a variety of health insurance products and tax credits. The transition relief offered by SB 1446 will enable many smaller employers an opportunity to take better advantage of the SHOP marketplace when they procure fully ACA-compliant insurance policies." (Ogletree Deakins)

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