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Substantial Risks of Forfeiture -- Mintz Levin Deferred Compensation Advisory Series Issue No. 6

Excerpt: The new rules, which are set out in §409A of the Internal Revenue Code ..., generally provide that, unless certain requirements are met, amounts deferred under a non-qualified deferred compensation plan will be includible in gross income in the year the amounts are no longer subject to a substantial risk of forfeiture and to the extent not previously included in gross income. Accordingly, what constitutes a 'substantial risk of forfeiture' is a matter of critical importance.

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Mintz Levin Health Care Reform Update, September 17, 2012 (PDF)

Weekly update on developments in federal and state health care reform legislation and regulations. Includes summaries of recent announcements and regulatory activity by HHS, CCIIO, IRS and CMS.  MORE >>

IRS Names Levine, Pozek to Advisory Committee on Tax Exempt and Government Entities

New members representing Employee Plans on the Advisory Committee are David N. Levine, a principal at Groom Law Group, Chartered, in Washington, D.C., and Adam C. Pozek, of Reading, Massachusetts. Pozek is Vice President, Consulting Services, for Sentinel Benefits & Financial Group.  MORE >>

CMS's Self-Referral Disclosure Protocol Process to Self-Disclose Stark Law Violations

Excerpt: Mintz Levin has learned through unofficial channels that CMS intends to publish the SRDP in the Federal Register at a later date. CMS presumably will offer the public the opportunity to comment at that time. Providers, suppliers, and other affected parties likely will have a number of concerns.

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Privacy Article: RFID Use in Health Care Raises Privacy Questions (PDF)

1 page. Excerpt: This article written by Mintz Levin attorneys Linda Bentley, Dianne Bourque and Russell Fox and printed in the November 17 - 23, 2006 issue of the Boston Business Journal discusses newly developed technology that enables doctors to monitor patients wirelessly in several ways but raises questions related to privacy protection.

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Employee Benefits Alert: Severance? It's Not What It Used to Be

Excerpt: Issue No. 7 in the Mintz Levin Deferred Compensation Advisory Series provides a synopsis of Code §409A's treatment of severance pay and what to be on the look out for in crafting severance arrangements.

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When Equity Compensation is Considered Deferred Compensation and How to Avoid it

Excerpt: This installment of the Mintz Levin Deferred Compensation Advisory Series focuses on what equity compensation arrangements are exempt from the deferred compensation rules of § 409A of the Internal Revenue Code of 1986 .... As more fully described in our prior client advisories on deferred compensation, Code §409A was enacted under the American Jobs Creation Act of 2004, and it changed several tax rules governing deferred compensation.

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An Overview of the Deferred Compensation Provisions of the American Jobs Creation Act of 2004 (PDF)

28 pages. "Among (many) other things, the American Jobs Creation Act of 2004 substantially rewrote the rules governing all sorts of deferred and executive compensation arrangements. [Mintz Levin is] pleased to provide you with a copy of a comprehensive article on the subject[.]"  MORE >>

The Davila Supreme Court Case and the Future of Health Plan Administration (PDF)

Excerpt: It is not often that we see a unanimous Supreme Court decision ... This Mintz Levin Publication discusses the consolidated cases of Aetna Health Inc. v. Davila and CIGNA Healthcare of Texas, Inc. v. Calad in which the Court unanimously ruled that the Texas Patient's Bill of Rights Law is preempted by [ERISA] to the extent it attempts to regulate or dictate what is covered by an ERISA-covered group health plan.

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Massachusetts Division of Health Care Finance and Policy's New Regulation Implementing Fair Share Contribution Requirement

Excerpt: This client advisory explains the key features of this newly minted final regulation. Please see An Employer's Guide to the 2006 Massachusetts Health Care Reform Act [at http://www.mintz.com/newsletter/2008/Advisories/EBEC_EmpGuide/MHCRA-Emp-Guide.pdf] for a comprehensive explanation of the provisions of the Act affecting employers with employees at Massachusetts locations.

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Avoiding Unexpected Liability for Former Employees' Medical Expenses

"Assuming the allegations as true, one might be inclined to side with Hager, in which case the lesson of the case would be a pedestrian common sense one: don't send notices of plan termination to former employees who have elected COBRA to the wrong address. What makes this case interesting is the tortuous route the Court had to take to get to this result. In so doing, the Court meticulously parsed the statute, thereby, in our view, making it noteworthy." [Hager v. DBG Partners, Inc., No. 17-11147 (5th Cir. Sept. 6, 2018)]  MORE >>

Massachusetts Legislature Proposes Limited Relief for Employer Medical Assistance Contribution (EMAC) Supplemental Payments

"Last year's amendments increased the basic EMAC annual fee to $77 per employee from $51 per employee and added a new, supplemental penalty of up to $750 for each non-disabled worker who receives health insurance coverage through MassHealth or who opts out of employer-provided coverage and instead receives subsidized coverage from the Massachusetts Health Connector ... [T]he Massachusetts Legislature has proposed an amendment to the EMAC rules providing for hardship waivers."  MORE >>

Determining the Status of an Association Health Plan as 'Fully-Insured'

"While AHPs can be either fully-insured or self-funded, the final regulation provides rules that are generally more useful to the former than the latter. Because of the preemptive force of ERISA, fully-insured arrangements are more lightly regulated under state law than their self-funded counterparts. This post addresses the question of what certification is needed, if any, to establish that an AHP is fully-insured."  MORE >>

Massachusetts Governor Signs Law Establishing Paid Family and Medical Leave Program

"The state leave program will be funded through a payroll tax of 0.63% ... split between employers and employees.... Employer and employee contributions will begin on July 1, 2019, with benefit payments beginning on January 1, 2021 for personal medical leave and on July 1, 2021 for family leave benefits. Employers may opt out of the state program if they provide benefits that match or exceed those provided by the state plan."  MORE >>

The New Massachusetts Employer Healthcare Coverage Form

"The purpose of the new HIRD form is to collect employer-level information about employer-sponsored insurance offerings, in order to assist MassHealth in identifying individuals with access to employer-sponsored insurance who may be eligible for MassHealth's Premium Assistance Program.... Despite that the new HIRD form is not required to be filed until later this year, MassHealth officials have reached out to a handful of Massachusetts employers asking for early compliance in an effort to test their reporting systems and procedures."  MORE >>

California Rewrites the Independent Contractor Test: What Your Business Needs to Do Now to Pass It

"Our colleagues in Massachusetts, who have been living with the ABC test since 2004, tell us that the rubber meets the road with the second prong of this test. It is often a tough call as to whether a worker's services are in the employer's 'usual business,' particularly for specialized functions such as marketing or human resources that a company may need to run its business, but may or may not be considered essential to its core business."  MORE >>

Appealing Massachusetts Employer Medical Assistance Contribution Supplement Determinations Based on ConnectorCare Coverage

"The Massachusetts Department of Unemployment Assistance (DUA) has begun assessing Employer Medical Assistance Contribution (EMAC) supplemental payments for the first quarter. This [article] proposes a grounds for appealing DUA determinations that would serve employers well: employers that offer affordable, major medical coverage to their employees should not be assessed an EMAC supplement for any full-time employee who has coverage under ConnectorCare. The [ACA] makes these employees ineligible for subsidized coverage."  MORE >>

Fifth Circuit Court of Appeals Invalidates the DOL Fiduciary Rule and Related Prohibited Transaction Exemptions

"Both the SEC and the many state regulators are moving ahead with their own regulation of the conduct of financial advisors. Thus, a return to the pre-April 2016 law is unlikely.... A large swath of the retail financial services industry was (and still is) based on a sales-oriented culture to which the fiduciary rule is largely antithetical. The question is whether the absence of the fiduciary rule means a return to that ethic." [Chamber of Commerce of the United States of America, et al. v. DOL, No. 17-10238 (5th Cir. Mar. 15, 2018)]  MORE >>

The ACA's Contraceptive Mandate: A Loss in Massachusetts

"On March 12, 2018, Judge Nathaniel Gorton of the United States District Court for the District of Massachusetts found that the Commonwealth failed to show that it had standing ... and dismissed the Commonwealth's suit. More specifically, Massachusetts did not identify any particular woman likely to be harmed by the new rules, nor did it identify any particular employer who planned to avail itself of the broadened exemption, nor did it show that Massachusetts itself faced injury." [Massachusetts v. HHS, No. 17-11930 (D. Mass. Mar. 12, 2018)]  MORE >>

Austin Adopts Paid Sick and Safe Leave

"The sick and safe leave ordinance will take effect on October 1, 2018 for employers with five or more employees. Employers with fewer than 5 employees will have an additional two years -- until October 1, 2020 -- to begin complying. While there seems to be growing support in the Texas Legislature for a bill that would reverse this ordinance, ... [the Legislature] would not take up any such legislation until early 2019 at the earliest."  MORE >>