Health & Welfare Plans Newsletter

January 24, 2017

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Webcasts and Conferences

Employee Benefits and Medicare Coordination Issues
RECORDED
Frenkel Benefits, LLC

January 2017 Washington Update Briefing
January 27, 2017 WEBCAST
Mercer

COBRA Notice Litigation: Is Your Plan Next?
February 3, 2017 WEBCAST
Littler Mendelson

Anatomy of a Data Breach
February 16, 2017 in NY
Worldwide Employee Benefits Network [WEB] - New York Chapter

Employee Benefits Producer Training Program
April 24, 2017 in WI
International Foundation of Employee Benefit Plans [IFEBP]

EBIA Employee Benefits Seminar
June 13, 2017 in WA
Thomson Reuters / EBIA

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[Guidance Overview]

On First Day, President Trump Issues Executive Order on ACA (PDF)
"[S]ome reports indicate priorities will include loosening up the rules relating to 'essential health benefits' and individual mandate hardship waivers. Changing the rules for 'essential health benefits' almost certainly would require issuing new proposed regulations, followed by a review and comment period, and then final regulations. Typically that process takes a year or more even for noncontroversial items."
Deloitte

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[Guidance Overview]

How Trump's First Executive Order Could Affect Employer-Sponsored Health Plans
"If the IRS concludes that the order directs it to soften the burden on employers in their capacity as health insurers or insurance purchasers, 'it might waive, defer or grant exemptions from the employer mandate penalty and the reporting obligation, because the mandate and its reporting obligation impose a tax, penalty or regulatory burden on employers,' said Edward Fensholt [of Lockton] ... Further easing [employer reporting] deadlines going forward 'is something the IRS has the discretion to do without following the formal rulemaking process,' [noted Joy Napier-Joyce, of Jackson Lewis]. 'Since employer reporting is the lynchpin to assessing employer penalties under the employer mandate, this may be the next piece we see.' "
Society for Human Resource Management [SHRM]

[Guidance Overview]

The January 20, 2017 Executive Orders: What They Say and Do Not Say
"Employers should consider waiting to make changes to the internal terms of their health plans as it is not clear what relief from which ACA requirements is available to employers under this Executive Order. Employers will want to consider implications under the HIPAA nondiscrimination regulations that will still be in effect and wait to see what the repeal will do, such as reinstating HIPAA provisions that the ACA removed or obsoleted (e.g., certificates of creditable coverage).... It appears that the [DOL]'s Disability Based Claim and Appeal regulations that were published on December 19, 2016, and were effective on January 18, 2017, but which do not apply until a claim is submitted on or after January 1, 2018, may have been carefully designed to miss this delay."
Winstead PC

Text of D.C. District Court Opinion Blocking Aetna-Humana Merger
158 pages. "The Court concludes that the proposed merger is likely to substantially lessen competition in Medicare Advantage in all 364 complaint counties and in the public exchanges in the three complaint counties in Florida.... In that market, which is the primary focus of this case, the merger is presumptively unlawful ... In the public exchanges, the Court finds that Aetna withdrew from competing in the 17 complaint counties for 2017 specifically to evade judicial scrutiny of the merger.... The Court finds that Aetna is likely to offer plans on the exchanges only in the three complaint counties in Florida in 2018 and beyond, and that the merger is likely to substantially lessen competition in those counties. And as in the Medicare Advantage market, the Court concludes that defendants' proffered efficiencies do not offset the anticompetitive effects of the merger." [U.S. v. Aetna Inc., No. 16-1494 (D.D.C. Jan. 23, 2017)]
U.S. District Court for the District of Columbia

District Court Judge Says Aetna Misled the Public About Its Reasons for Quitting Obamacare
"Aetna claimed this summer that it was pulling out of all but four of the 15 states where it was providing Obamacare individual insurance because of a business decision ... Now a federal judge has ruled that that was a rank falsehood. In fact, says Judge John D. Bates, Aetna made its decision at least partially in response to a federal antitrust lawsuit blocking its proposed $37-billion merger with Humana." [U.S. v. Aetna Inc., No. 16-1494 (D.D.C. Jan. 23, 2017)]
Los Angeles Times

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ERISA's Express Preemption Superpower Beats Iowa Pharmacy Benefits Manager Law
"The Court held that the law 'imposes mandates and restrictions on a PBM's relationship with Iowa and its pharmacies that run counter to ERISA's intent of making plan oversight and plan procedures uniform.' The Court found that the law specifically referenced self-funded plans regulated by ERISA -- carving them out due to ERISA preemption [and] observed that if the effect of a State law is to exclude some employee benefits plans from its coverage, that law has a prohibited reference to ERISA and is preempted." [Pharmaceutical Care Management Ass'n v. Gerhart, No. 15-3292 (8th Cir. Jan. 11, 2017)]
Tucker Ellis LLP

ACA-ERISA Lawsuit Risks Likely to Continue Until Congress Acts Despite Trump Executive Order for Agencies to Issue Relief
"While the Agencies may possess the authority to lessen the burden of compliance with the regulatory mandates of the ACA by revising regulations, issuing enforcement relief or other certain other actions, these powers do not extend to blocking the authority of participants and beneficiaries to bring suit to enforce the provision of the ACA that the ACA added to ERISA through private benefit denial or breach of fiduciary duty lawsuits brought under ERISA."
Solutions Law Press

More Families with Employer-Sponsored Insurance Are Needing Public Assistance
"[In] families where parents were covered by [employer-sponsored insurance], the percentage of kids who were not covered by that insurance increased from 22.5% in 2008 to 25.0% in 2013. The percentage of such children who were covered by Medicaid or CHIP also increased from 12.1% to 15.2%. In other words, in families where parents were covered by job-offered private insurance, more and more of their kids were being covered by public insurance."
AcademyHealth

The Replacements: Understanding the GOP's Six Leading Health Care Plans
"The chart provides a high-level comparative analysis of all six plans and highlights each plan's treatment of various regulatory stipulations.... [1] Empowering Patients First Act -- Bill presented by Rep. Tom Price (R-Georgia); [2] A Better Way -- White paper presented by Speaker of the U.S. House of Representatives Paul Ryan; [3] Patient CARE Act -- White paper presented by U.S. Senators Richard Burr (R-N.C.), Orrin Hatch (R-Utah) and Fred Upton (R-Mich.); [4] World's Greatest Health Plan -- Bill presented by Rep. Pete Sessions (R-Texas) and Sen. Bill Cassidy (R-Louisiana); [5] American Health Care Reform Act -- Bill summary presented by the Republican Study Committee 2016 Reconciliation Bill -- Bill passed by Congress, vetoed by President Obama."
Faegre Baker Daniels LLP

Two GOP Senators Debut Health Plan With State Option to Keep ACA Exchanges
"The proposal from Sens. Bill Cassidy (La.) and Susan Collins (Maine) would allow state capitols to decide whether to maintain the [ACA] or to launch a new plan that would automatically enroll people not covered by an employer, Medicare or Medicaid in a plan. Under their plan, known as the Patient Freedom Act, states could opt to continue receiving federal premium tax credits, cost-sharing subsidies and Medicaid dollars as they have under the ACA, or enact a new system under which states would receive funds through advanceable, refundable tax credits or per beneficiary grants. Patients would receive funding directly through a health savings account."
Morning Consult

[Opinion]

Building a Culture of Workplace Health: More Complicated Than Offering Workers Money to Be Healthy
"[I]mproving population health should be the main purpose of workplace health promotion, not cost savings.... [M]any companies are now moving away from a traditional ROI model to one that emphasizes value-on-investment (VOI) metrics (e.g., attracting and retaining top talent, improving employee engagement, heightening job satisfaction, and boosting morale) ... To achieve a VOI, you need to build a strong culture of health."
Health Affairs

Benefits in General

Text of ERISA Advisory Council Report: Cybersecurity Considerations for Benefit Plans (PDF)
40 pages. "The 2016 Council believes that the [DOL] should raise awareness about cybersecurity risks and the key elements for developing a cybersecurity strategy specifically focused on benefit plans. The 2016 Council is providing suggested materials for plan sponsors, fiduciaries and service providers to utilize when developing a cybersecurity strategy and program in the form of the document included in the appendix of this report titled Employee Benefit Plans: Considerations for Navigating Cybersecurity Risks." [Nov. 2016, released Jan. 24, 2017]
Advisory Council on Employee Welfare and Pension Benefit Plans [ERISA Advisory Council]

Executive Compensation and Nonqualified Plans

[Guidance Overview]

Text of IRS Audit Techniques Guide: Golden Parachute Payments (PDF)
10 pages. "The parachute examination can occur during the examination of either the corporation's or the individual's return. As the examination begins and throughout its course, [certain] items should be considered[.]"
Internal Revenue Service [IRS]

Press Releases

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2017 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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