Chaz

I haven't looked at the grandfathered rules in awhile but I believe that they say that only the enumerated changes will cause a plan to lose grandfathered status. Making spouses ineligible for coverage is not one of the enumerated changes so I believe that the plan can otherwise maintain grandfathered status,' I agree with Peter that spouses are not required to be offered coverage in order to avoid the mandate taxes. In fact, I argue that a technical reading of the statute indicates that dependent children also do not have to be offered coverage to avoid the penalty. I imagine that the DOL/HHS/IRS will disagree with me on that last point.

I would hesitate in relying on this article.

(I presume that by "FSA" you are referring to a health FSA.) If the employee had contributed more to the FSA that the employee had been reimbursed as of the date of termination, the employee may be eligible to elect to continue coverage through the end of the year through COBRA. Off the top of my head, I believe that COBRA participants on December 31 have to be given the same access to the grace period as similarly situated employees.

Is an authorization to release protected health information that has been executed by a participant/patient itself protected health information that is subject to the privacy rules?

Very sad news.

Karen, In order to be able to contribute to a health savings account, all you need (besides some money to deposit) is to have a qualifying high deductible health plan. You do not need to be employed. An HSA is just a special type of bank account. Many banks and other financial institutions offer them. A quick Google search would point you in the direction of some of them in your area.

If the wrap document explicitly states that the employer does not endorse the voluntary benefits AND that a description of the benefits is included for the convenience of the employees, AND that the employer does not intend that benefits be subject to ERISA, it would make it less likely (but not definitively) that a court or the DOL would determine that the safe harbor is satisfied. This is something that you should run by your counsel as the specific wording will make a big difference. I can't see the upside in including a description in the wrap. The voluntary benefits are generally ERISA benefits but for the DOL safe harbor. Any actions that the employer takes to "endorse" the benefits takes the benefit out of the safe harbor requiring the application of ERISA, COBRA, etc.

Hypothetical: Employee elects to contribute $500 to her health FSA for 2014 and $0 for future years. Employee does not submit requests for reimbursement in 2014 or 2015 so the balance in her account remains $500 at the end of 2015. As I read Notice 2013-71, the employee could theoretically rollover the $500 indefinitely if she remains employed at the employer (and even if she terminates and elects COBRA) to the extent that she does not submit any requests for reimbursement. My question is can the employer amend its plan to adopt the rollover provision but state that, in specified circumstances such as this, an employee will forfeit the $500 at the end of (in my example) 2015?

Off the top of my head, this smells like deferred compensation to me so you have to consider Code Section 409A. I think the employer will need to do withholding in 2013 rather than waiting to see if the "repayment" is made in 2014. If the employer is a public company, there is also the risk of a violation of Sarbanes-Oxley's prohibition on personal loans to executives. You'll definitely want to have counsel advise before committing to this arrangement.

Yes, 2013-54 generally puts the kibosh on standalone MERPs.

I would speak with counsel but that election option does not appear to be offered by reason of a qualified change in status.

The health FSA is a self-insured medical plan and therefore needs to separately satisfy the self-insured medical reimbursement plan nondiscrimination tests set forth in Code Section 105(h).

The California statute may be preempted by ERISA (although research would have to confirm that).

In the context of a sale of assets, do the affiliated service group rules of Section 414(m) apply to determine whether a selling company is deemed to provide group health insurance for COBRA purposes (because one of its affiliates continues to provide coverage after the asset sale)? I know that the controlled group rules of 414(b) and © apply but my reading of the COBRA regulations indicates that 414(m) does not apply. That does not seem intuitive to me and wonder if any one has looked at this. Thanks!

If that is what the BNA manual states it is incorrect (and it's not even close). There is no $100 penalty for HCEs under the self-insured plan rules. As lvena states, the consequence is that HCEs are taxed on the the excess reimbursements that they receive.

Hypothetical: Employee is covered under employer's self-insured group health plan (providing affordable and minimum value coverage). Employee doesn't know better and goes to the Marketplace and obtains coverage for himself. Are there any specific/special coordination of benefits rules to use to coordinate the two coverages? Or are the general individual policy vs. group plan coverage rules used?

One somewhat obvious solution is to require the HCEs to pay the same as other employees and bump up their cash compensation in the amount of the 20% (plus a gross-up if the employer wants to make it a total wash for the executives).

I believe that there are a couple of PLRs (from the 80s?) where the IRS spelled out that a higher level of contributions for HCEs will cause the plan to fail the 105(h) tests. In addition, if the HCEs are paying their share of the premiums on a pre-tax basis through a cafeteria plan, this arrangement is likely to fail the 125 nondiscrimination tests.

Has anyone noticed that the revised in the revised COBRA notice, the DOL included language about the Paperwork Reduction Act? It doesn't really want plan administrators to include that language in notices that are sent out, does it? Very odd.

This is probably workable if the employer ties it in with COBRA or mini-COBRA, as applicable.

Obamacare added a new section 18B to the FLSA, requiring employers that are subject to the FLSA to send out a notice of the Health Insurance Marketplaces to all employees. This notice is due on October 1. The Department of Labor recently issued an FAQ stating that there is no fine or penalty under the law for failing to provide the notice. Can anyone provide any insight as to whether there any other employment-type laws or any litigation risk that an employer should be concerned about if it does not send out the notices or only sends the notices to some employees?

I would hesitate to rely on the above referenced article without speaking with counsel.

Small employer is considering changing health insurer. The new insurer needs medical information for underwriting purposes. The employer's broker is collecting medical history forms from the employees and forwarding them to the new insurer. The employer itself will not be receiving any PHI contained on the forms. The employer does not have a BAA with the broker not has it generally taken any steps to comply HIPAA's privacy rules Any HIPAA privacy concerns?

1-HHS has specifically said that, in most cases, janitorial services are not business associates so you didn't need to enter into a BA with your cleaning service. I recall that the only exception is if the service was hired to dispose of PHI. 2-The school is neither a business associate nor a covered entity (in alternative 2 of my scenarios, at least). Therefore it is not necessary nor appropriate to enter into a BA agreement even if the school was to receive students' PHI. As the covered entity, the clinic is responsible for making sure appropriate authorizations are in place before it shares the information with the school.