Chaz

I suspect that there is no guidance on this interesting question. My gut says to permit reimbursement of these expenses but only if accompanied by documentation from a medical provider that the extra flavorings are recommended in order for the patient to take the medicine. If the flavorings are already added (e.g., by a pharmacist) before delivery to the patient, I feel even more strongly that it is reimbursable.

Thanks, Scott. Yes, I spent some time this weekend scrutinizing FAQs Part 52. It'll be interesting to see how the PBMs react to this guidance.

My understanding is that it is a requirement for New York insurers. Note that if the health plan in question is self-insured, it would not need to comply with the law because of ERISA preemption.

The No Surprises Act requires that health plans "post on a public website of the plan or issuer" their No Surprises Act notices. In the employer-sponsored plan context, does that mean that an employer can satisfy this requirement by posting the notice on its internal intranet or similar site that employees can access? Many of the commentators that I have read said that is acceptable and that makes some sense because I don't think that a participant would ordinarily think to go to the employer's general website for health plan information. But what about non-employee participants, such as those participating in the plan through COBRA? Would an employer who does so be complying with its notice obligation with respect to those employees?

I recommend the annual Multistate Guide To Benefits Law put out by, I believe, Wolters Kluwer.

Can a plan charge a participant for shipping/handling as part of its direct-to-consumer COVID-19 shipping option and stay within the safe harbor so that it can limit reimbursement to $12 for at-home tests purchased out-of-network? One of the large (largest?) PBMs is currently stating that is the case. To me, that doesn't seem to be within the spirit if not the letter of the current FAQs. I haven't seen any guidance on that, either in the at-home test realm or even in the pre-COVID-19 general preventative care arena. Regardless of the answer to the above, can a plan charge (e.g., not reimburse) a participant for the cost of expedited shipping, if the participant requests it? That seems more defensible but I haven't seen any guidance on this either. Thanks!

But are there currently any available at-home (FDA-approved) antibody tests?

The EEOC and the DOL/IRS/HHS have provided helpful guidance for employers who wish to implement a vaccination incentive (or penalty for unvaccinated) for employees in the form of a health contribution surcharge. The HIPAA regulators have confirmed that, under HIPAA, an employer must, among quite a few other things, offer an employee for whom it is medically inadvisable to receive a vaccine a "reasonable alternative standard" so that such employee can avoid the surcharge. The employer can require that the employee provide documentation from his or her physician that receiving the vaccine is indeed medically inadvisable. Separately, the EEOC has stated that that merely requesting proof of COVID-19 vaccination as a condition of employment is not a "disability-related inquiry" under the ADA. But, if an employer is administering the vaccine directly or through an agent, certain pre-screening questions constitute a disability-related inquiry subject to the ADA, in which case the incentive or penalty cannot be "coercive." The EEOC has not stated how much, if any, incentive or penalty would or would not be coercive. Assume an employer implements a surcharge program where neither it nor its agent is administering the vaccine; employees instead can obtain one through public outlets. The employer requires a note from the employee's physician if obtaining the vaccine would be medically inadvisable. Wouldn't the requirement for the doctor's note be a "disability-related inquiry" under the ADA and thus subject the amount of the surcharge to the undefined "coercive" standard? Thanks for any thoughts!

I'm not sure how any outside entity can do an analysis (much less for only $4k) without knowing the inner workings of the applicable TPA. Any analysis will require the TPA's help.

Are any of you working with any self-insured clients who are looking to their TPAs to provide MHAPEA comparative analyses as required by the CAA only to be rebuffed in their attempts? I am working with one client whose TPA is one of the large BCBS providers in the area and the TPA is not providing an analysis unless and until the DOL comes calling, in which case it will provide a "cost estimate" and will only "work closely" with the client to make sure it timely responds. I have other clients using other TPAs (including other BCBSs) who have been much more accommodating. You may know that plans were required to have a comparative analysis by February 10, 2021. This post is just an exercise in venting but has anyone had a similar experience? Thanks.

Assuming that the adoption agreement is incorporated as a part of the plan and as long as someone keeps a record of the annual maximum amounts and the amounts are approved subject to the company's regular corporate governance procedures, I don't see a need to revisit this provision. If the plan has not been revised since 2008 and is "a bit sparse, and not terribly enlightening," however, perhaps a review by counsel might be in order.

I do not know whether this provides any more clarity on my original question but I thought the DOL's guidance on what plan sponsors can do with MLR rebates under the ACA might be helpful. Sure enough, Technical Release 2011-04 contains the following paragraph: If we analogize "multiple policies" in this guidance to "different benefits," and if the DOL took the same philosophy with respect to health FSA forfeitures, it might say that only health FSA administrative expenses can be paid from health FSA forfeitures unless not prudent even if a health FSA is not a different "plan" than the other benefits in the wrap plan. Then again, it might not. I'm still stumped.

This is a great discussion. Thank you all for your (differing) viewpoints.

Can an employer use health FSA forfeitures to defray administrative expenses of other ERISA benefits (for example among many, pay heath plan TPA fees) without violating ERISA's "exclusive benefit" rule if the heath FSA and the other ERISA benefits are part of one ERISA "wrap plan"? Assume that the plan document so provides and that the employer keeps all FSA and other employee contributions in its general assets in accordance with DOL guidance. Also assume that there are different participants in each of the employer's ERISA benefits. Thanks!

I found the CEO's memo to employees amusing given the lack of the use of a certain phrase. https://news.delta.com/ed-bastian-memo-covid-19-update

No update as of yet. The client has received numerous (again, computer generated) notices that the IRS is still working on the issue and will get back to it within 60 days. I have been assisting other clients in responding to other 1095-C-related discrepancies so it appears as if it is still an active area of IRS enforcement, at least with respect to sending out initial inquiries and assertions of owed penalty. There seems to be a bottleneck when it comes down to adjudicating whether to impose an actual penalty or to grant relief. I suspect it is due to the shortage in IRS personnel.

Thanks for the responses. I agree that news articles geared to the general public may leave out important details. In this case, it's probably because the general public is not as enraptured with the nuances of the Internal Revenue Code as we are. I will paraphrase a prominent "news" organization's former tagline by saying "I report, you decide" with respect to those details as I just copied and pasted the quote from the article I read. I would guess, however, that the Dodgers are paying Bauer $2MM in exchange for being able to defer payment into the future without owing any interest. Even having to pay $2MM more, the team would effectively pay less than it would if it had to pay the full salary in November. I think he would have to elect to opt out before receiving the payment in November; that's the only way the deal makes any sense. I still don't know how this arrangement satisfies Section 409A as I agree that, as the deal is described in the article at least, the 1 year/5 year rule is not met.

In my daily perusing of employee benefits and executive compensation news, I came across an article discussing Trevor Bauer's contract with the Dodgers. The article stated: Doesn't Section 409A prohibit such an arrangement?

Why would the company be paying "maintenance fees"? The amounts should be held in the sponsor's general assets. If anything, I think the company should be making a nominal amount of interest from the rollover.

This is all good stuff but note that my question involved whether there was any possible adverse consequences to the EMPLOYEE if the employer violated the MSP rules. I never did find an answer to that question,

Bring in benefits counsel.

Scenario: An employee was furloughed in early 2020. He is offered COBRA at that time but does not elect it. His employer calls him back to work in, say, June 2020. He declines to come back because he has obtained other employment but is not eligible for coverage at that job. Is this employee eligible for the second COBRA election period and the COBRA subsidy? I think he is because his qualifying event was an involuntary termination of employment and the resulting voluntary decision not to return is irrelevant. That result doesn't sit well with me. I have not seen any DOL or IRS guidance on this. Does anyone have any thoughts on this scenario? Thanks!

The IRS assesses a multiemployer health and welfare fund a penalty for not timely distributing and/or filing Forms 1095-B due to an error by the fund administrator. The penalty is not covered by the fund's E&O/fiduciary insurance policy. Can the fund pay the penalty from plan assets? Thanks.

Scenario: Employee's spouse's employment was terminated. She is eligible for 12 months of fully subsidized COBRA continuation coverage followed by an additional six months of unsubsidized coverage as required by COBRA. The spouse is nearing the end of the 12-month period of subsidized coverage and the employee wants to enroll the spouse in his employer's plan effective at the end of subsidized period. HIPAA's special enrollment rights would, in general, permit the employee to enroll the spouse in his plan in lieu of her electing COBRA (i.e., 12 months ago) and again at the end of the 18-month COBRA period. But there is, in general, no special enrollment right to add coverage in the middle of COBRA continuation coverage. In the COVID-19 relief (which in my view was not the previous Administration's best effort), the requirement that a participant inform an employer of a special enrollment right within 30- or 60-days (depending on the event) is tolled until basically the end of the pandemic. Must the employer permit the employee to enroll his spouse in the plan as he requests because the notification requirement is tolled? Or did the employee's special enrollment right for his spouse go away when she elected subsidized COBRA? Any thoughts are appreciated.

I would speak with counsel but, based on the facts set forth above (there may be other considerations, both legal and otherwise, of which I am unaware), I would NOT agree to sign a certification to the carrier. There is a chance (unlikely as it may be) that it could open you to contractual liability to the carrier if the certification is somehow not 100% correct.