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Health plan admin - misc

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[Official Guidance] Text of IRS Final Regs: Health Insurance Premium Tax Credit
44 pages. "These regulations affect individuals who enroll in qualified health plans through Affordable Insurance Exchanges ... and claim the premium tax credit and Exchanges that make qualified health plans available to individuals.... After consideration of all the comments, the proposed regulations are adopted by this Treasury decision, with one technical correction that was not identified in the comments." (Internal Revenue Service [IRS])
Supreme Court Indirectly Stiffens a Fiduciary Breach Time Limit and Helps ERISA Fiduciaries in the Process
"The Supreme Court appears to have barred equitable tolling under ERISA Section 413's six-year statute of repose for fiduciary breach claims, subject only to well-pled allegations and proof of fraud or concealment.... [T]he Court dismissed as untimely a securities case filed by CALPERS after the statute of repose expired. CALPERS argued that the lawsuit was timely because the same claim was timely asserted in another securities class action that CALPERS opted out of after filing its own case. The Court rejected the CALPERS argument that the timely filing of the class action equitably tolled statute of repose for its individual case." [CalPERS v. ANZ Securities, Inc., No. 16-373 (U.S. June 26, 2017)] (Seyfarth Shaw LLP)
[Official Guidance] Text of HHS-Developed Risk Adjustment Model Algorithm 'Do It Yourself (DIY)' Software Instructions (PDF)
20 pages. "The HHS risk adjustment methodology calculates a plan average risk score for each covered plan based upon the relative risk of the plan's enrollees, and applies a payment transfer formula in order to determine risk adjustment payments and charges between plans within a risk pool within a market within a State.... This document provides instructions for the HHS risk adjustment models for the 2017 benefit year, with revisions from the software instructions posted on the CCIIO website on December 19, 2016." [Also available: Technical Details (XLSX) and 2017 Benefit Year Risk Adjustment: SAS Version of HHS-Developed Risk Adjustment Model Algorithm Software (ZIP). [Undated and unnumbered; posted online July 21, 2017.] (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
[Guidance Overview] Are You Ready for 2018 Group Health Plan Open Enrollment?
"This year brings a new challenge -- the Summary of Benefits and Coverage (SBC) document that was created by the ACA has undergone its first major restructuring since 2012 when employers were first required to provide the SBC. The new SBC template must be used for open enrollments that occur on or after April 1, 2017. For calendar year plans, the upcoming 2018 open enrollment is the first open enrollment where the new SBC templates must be used." (Frost Brown Todd LLC)
[Guidance Overview] IRS Confirms ACA Tax Assessable Payments are Still in Effect
"[U]ntil there is relief from new legislation which changes the tax laws, the ACA's employer mandate tax and individual mandate taxes are still in effect. Likewise, there has been no statutory change removing the employer's obligation to report offers of health coverage or actual coverage (for self-insured plans) and employers subject to the reporting requirements should prepare to comply and report for 2017 on Forms 1095-C and 1094-C[.]" (Winstead PC)
[Guidance Overview] The Case for Tackling the New Disability Claims Procedures Before Year-End
"[K]ey changes implemented by the new rule are ... [1] New independence and impartiality provisions.... [2] Enhanced review rights.... [3] New deemed exhausted provisions.... [4] Expanded definition of adverse benefit determination.... [5] New culturally and linguistically appropriate standards.... [6] New disclosure requirements." (Benefits Bryan Cave)
Obamacare Exchanges In Limbo
"California's Obamacare exchange scrubbed its annual rate announcement this week, the latest sign of how the ongoing political drama over the [ACA] is roiling insurance markets nationwide. The exchange, Covered California, might not wrap up negotiations with insurers and announce 2018 premiums for its 1.4 million customers until mid-August -- about a month later than usual. Similar scenarios are playing out across the country as state officials and insurers demand clarity on health care rules and funding, with deadlines fast approaching for the start of open enrollment this fall." (Kaiser Health News)
Evaluating the Effects of SHOP in California and Colorado
"Although SHOP has made modest gains in enrollment in California and Colorado, and in the many states in which it is managed by the federal government, the program still covers fewer than 150,000 people nationwide.... While SHOP has the potential to grow, especially if it evolves into more of a 'one-stop shop' for employee benefits, the program has a long way to go if it is to become a focal point of the small-group insurance market." (The Commonwealth Fund)
Case Study: HDHP Launch Nets 54 Percent of Employees
"Anyone who communicates to employees about benefits knows that the message can easily be lost, misunderstood, or simply tuned out ... The communications challenge is magnified at Woodward because we have more than 500 employee owners across the Midwest. We deliberately chose to use the term CDHP in all our messaging -- written promotions, open enrollment meetings, etc. as we thought it has a less negative connotation than high-deductible health plan. Getting creative with communication and using a variety of channels was key to our effectiveness." (The Alliance)
July 31 Form 5500 Deadline is Quickly Approaching for Calendar Year Plans
"Insurance policy years (i.e., the time for a renewal) may be different from ERISA plan years. If your health and welfare plans renew on a fiscal year, your ERISA plan may still be on a calendar year track. The ERISA plan documentation will specify the plan year on which it operates." (Michael Best & Friedrich LLP)
[Official Guidance] Text of IRS Final Reg: Special Enrollment Examination User Fee for Enrolled Agents
"This document contains a final regulation changing the amount of the user fee for the special enrollment examination to become an enrolled agent. The charging of user fees is authorized by the Independent Offices Appropriations Act of 1952. The final regulation affects individuals taking the enrolled agent special enrollment examination." (Internal Revenue Service [IRS])
Putting Consumer-Driven Health Plan Adoption on the Fast Track
"Employers can follow these basic guidelines to maximize CDHP participation: Follow a detailed communications strategy.... Use multiple communication channels.... Leverage decision support tools." (Frenkel Benefits)
[Discussion] COBRA and Exchange Special Enrollment Periods
"Does termination of an employer contribution towards a former employee's COBRA coverage create a special enrollment period to enroll in exchange coverage for the former employee? Assuming the former employee drops the COBRA coverage once the employer contributions end and is otherwise eligible for advance payments of the premium tax credit, does termination of employer contributions towards a former employee's COBRA coverage that results in the COBRA coverage being 'unaffordable' under Code section 36B and 26 C.F.R. Section 1.36B-2 create a special enrollment period to enroll in exchange coverage for the former employee because the former employee would be newly eligible for advance payments of the premium tax credit (which creates a special enrollment period pursuant to 45 C.F.R. Section 155.420(d)(i)(6)(iii))?" (BenefitsLink Message Boards)
[Official Guidance] Text of Draft 2017 IRS Form 1095-A (PDF)
"This Form 1095-A provides information you need to complete Form 8962, Premium Tax Credit (PTC). You must complete Form 8962 and file it with your tax return (Form 1040, Form 1040A, or Form 1040NR) if any amount other than zero is shown in Part III, column C, of this Form 1095-A (meaning that you received premium assistance through advance credit payments) or if you want to take the premium tax credit." (Internal Revenue Service [IRS])
The Rise of the Mobile Devices: Putting Benefit Communication in Your Participants' Hands (PDF)
"Because the vast majority of us expect access to information anywhere from any device 24/7, it makes sense that we should consider a commitment to incorporate mobile devices, particularly smartphones, to provide benefits information to our audiences.... The thinking around creating a communications plan that uses smartphones is different from other media you may use." (International Foundation of Employee Benefit Plans [IFEBP])
GAO Report: Improvements Needed in CMS and IRS Controls over Health Insurance Premium Tax Credit
"Although CMS properly designed and implemented control activities related to the accuracy of advance PTC payments, it did not properly design control activities related to preventing and detecting improper payments of advance PTC, such as verifying individuals' eligibility. As a result, CMS is at increased risk of making improper payments of advance PTC to issuers on behalf of individuals." [GAO-17-467, published and released July 13, 2017] (U.S. Government Accountability Office [GAO])
[Official Guidance] Text of CMS Guidance on Annual Eligibility Redetermination and Re-Enrollment for Exchange Coverage for 2018 (PDF)
"[A] Health Insurance Exchange has three options to redetermine eligibility for enrollment in a qualified health plan (QHP) through the Exchange and insurance affordability programs on an annual basis.... [including] a set of alternative procedures specified by the Secretary for the applicable benefit year. This guidance describes these alternative procedures for benefit year 2018, which are largely the same as the alternative procedures specified by the Secretary for benefit year 2017.... All Exchanges using the federal eligibility and enrollment platform will use the procedures specified in this guidance for benefit year 2018." [Unnumbered document, July 13, 2017] (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
The Full Fifth Circuit Will Re-Visit the Standard of Review in Denial of Benefits Cases
"[It] is not the least bit surprising that the Fifth Circuit has decided to re-examine the standard of review it applies in ERISA denial of benefits cases. And it is probably not too difficult to guess that the Court, en banc, will reverse Pierre, and align with other circuits holding that a de novo review is called for when reviewing decisions made by retirement and health plans[.]" (Jackson Lewis P.C.)
How a Mid-Year Change of Status Affects HSA Contributions
"[An] HSA-eligible individual who has a mid-year status change will have his new annual contribution limit determined by whichever of the following two options results in the highest amount: [1] The maximum annual contribution limit based on his or her actual HDHP coverage (individual or family) for each month of the tax year, calculated monthly, combined and then divided by 12; or, [2] The maximum annual contribution limit for the tax year based on his or her actual HDHP coverage (individual or family) as of December 1 of that year." (DataPath)
Updated SBC Templates Apply for 2018 Open Enrollment
"Given the current House and Senate 'repeal and replace' ACA legislation, many employers are wondering if they need to take the time to revise their SBCs to comply with the new template and requirements. The short answer is use of the new SBC templates are still required. Both the House-passed legislation and the current legislation in consideration by the Senate have no effect on the SBC requirements." (Kilpatrick Townsend)
[Official Guidance] Text of CMS MLR Annual Reporting Form Instructions for the 2016 MLR Reporting Year (PDF)
61 pages. "[S]ignificant changes [include]: ... [1] ICD-10 expenses may no longer be included in quality improvement activity expenses.... [2] allow an issuer to defer reporting of experience of all policies newly issued in 2016 ... if 50% or more of the issuer's total earned premium for 2016 is attributable to such policies; ... [3] provide issuers the option of limiting the total rebate payable with respect to a given calendar year.... [4] Clarified instructions for reporting the experience of newly issued policies and Basic Health Plans, taxes on Part 1, and claims liabilities and cost-sharing reductions on Part 2." [Also issued: Revised MLR 2016 Calculator and Formula Tool (XLSM)] (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
2016 PCORI Fee Payment Deadline July 31, 2017
"Sponsors of plans subject to the PCORI fee need to determine the average number of covered lives and file IRS Form 720 by July 31, 2017 with payment of the required fee." (Cheiron)
[Discussion] Terminating an HRA With One Remaining Participant
"We mostly administer HRA plans for terminated employees for employers that use Hour Banks or prevailing wages. The money is fringe dollars and does not belong to the employer as normal. We have a plan that has one employee left on the plan and the employer wants to terminate the plan. The employee still has $259. Should we give the money back to the employee in a check? The employee has a debit card to spend the money but has not used it yet. Our big problem is the employees move so often we do not always have a current address." (BenefitsLink Message Boards)
Plan Sponsors Using Limited-Scope Audits Should Watch for Proposed Changes
"The proposed SAS requires the plan sponsor to acknowledge its responsibility when it comes to the audit. The auditor would be required to get it in writing.... This change will most likely increase plan sponsor costs, especially when plan sponsors opine on certified financial statements prepared by financial institutions. Plan sponsors may need to engage the appropriate subject-matter expert to comment on asset valuation and financial statement presentation." (HRDailyAdvisor)
[Discussion] Can Employer Withdraw Offer of Health Insurance Coverage If Employee Doesn't Work the Hours Agreed-Upon When Hired?
"The employee was hired to work 35 hours per week ('Full Time' status), so there was no initial measurement period before the offer of coverage. Only the Limited Non-Assessment Period. However, the employee no longer works 35 hours weekly. He has averaged 25 hours for months now, but still has his initial status as Full Time. Can the employer take back the offer of coverage? Could it force a status change to Part Time or Variable Hour?" (BenefitsLink Message Boards)
Four Things to Know When Trying to Offset Personal Injury Lump Sum Settlements
"Some ERISA Plans have 'presumed allocation for offset' provisions that help determine how much of a lump sum settlement can be offset. But some state statutes 'conclusively establish' how to allocate lump sum personal injury settlements, which complicates things." [Arnone v. Aetna Life Ins. Co., No. 15-2322 (2nd Cir. June 22, 2017)] (Lane Powell PC)
No Private Right of Action Under Health Care Reform's Provider Nondiscrimination Provision
"Although the court did not address the merits of this case, ... health care reform's provider nondiscrimination provision does not require plans or insurers to contract with any willing provider, and permits setting varying rates of reimbursement based on quality or performance. FAQ guidance indicates that the agencies will take no enforcement action against a plan or insurer under the provider nondiscrimination provision provided that the plan or insurer is using a reasonable good faith interpretation of the statutory provision." [Ass'n of N.J. Chiropractors, Inc. v. Horizon Healthcare Services, Inc., No. 16-8400 (D.N.J. June 13, 2017; unpub.)] (Thomson Reuters / EBIA)
[Guidance Overview] IRS Form 14581-C: Medicare Coverage Compliance Self-Assessment for State and Local Government Employers (PDF)
"The self-assessment tools are designed to help public employers identify areas that indicate potential compliance issues. They are intended to be completed by those responsible for withholding and paying employment taxes and filing required information returns." [June 2017] (Internal Revenue Service [IRS])
[Discussion] Is a Qualified Small Employer Health Reimbursement Arrangement an ERISA-governed Welfare Plan?
"If an employer's arrangement to reimburse an eligible employee's payment of a premium for an individual health insurance contract follows all the rules and conditions for a qualified small employer health reimbursement arrangement [QSEHRA] described in Internal Revenue Code section 9831(d), the arrangement is not a group health plan for ERISA section 607(1) or 733(a)(1). But do other ERISA issues remain? Does the employer's reimbursement of its employee's premium paid for individual health insurance make the arrangement a welfare plan defined in ERISA section 3? Must a QSEHRA be stated by a written plan? Must a QSEHRA's administrator furnish a summary plan description? Must a QSEHRA's administrator adopt and follow a claims procedure? What further issues should we think about?" (BenefitsLink Message Boards)
HHS Provides Cyberattack Checklist for HIPAA-Covered Entities
"The Office for Civil Rights presumes that most cyber-related security incidents in which PHI was accessed, acquired, used or disclosed are reportable breaches. Health plan sponsors (and affiliates) who experience a ransomware attack or other cyber-related security incident should follow the OCR checklist. Coordination will likely be required between the employer's information technology and HR departments to properly respond to a cyberattack." (Willis Towers Watson)
Health Plans Scrambling to Upgrade, Keep Up with Changes
"Insurers are scrambling to keep up with legal and societal changes that upend everything they have known in past years, says Harry Merkin, vice president of marketing at of HealthEdge, a company providing software management for payers. They are being forced to modernize in costly ways that could affect their overall financial health as much as anything that happens to them in the insurance market, he says." (HealthLeaders Media)
Form 5500 Filing Reminder
"[T]he filing date for Form 5500 for calendar year employee benefit plans -- July 31 -- is fast approaching.... [E]mployee assistance plans (EAPs) and wellness plans ... may be determined to be subject to the requirements of ERISA, including the reporting requirements. A review of the particular characteristics and operations of these types of arrangements may be warranted to ensure that the Form 5500 is timely filed and to eliminate the risk of significantly higher ERISA penalties associated with a delinquent Form 5500." (PKF O'Connor Davies)
Claim for Benefits Did Not Preclude Additional ERISA Fiduciary Breach Claim
"Plan administrators should heed this reminder that the timeframes in the claims procedure regulations are maximums, and the available extensions are not automatic entitlements. And from a litigation perspective, the court's conclusion that pursuing a claim for benefits does not necessarily preclude a simultaneous fiduciary breach claim is instructive." [Hancock v Aetna Life Ins. Co., No. 16-1697 (W.D. Wash. May 3, 2017)] (Thomson Reuters / EBIA)
[Guidance Overview] July 31 PCORI Filing Deadline Is Quickly Approaching
"The PCORI fee generally applies only to major medical plans and health reimbursement arrangement (HRAs).... However, the PCORI rules provide an exception to the fee requirement for an HRA where it is offered along with a self-insured major medical plan that has the same plan year as the HRA. This avoids the need to pay the PCORI fee for both the HRA and the self-insured major medical plan (i.e., each person covered by both plans is counted only once for purposes of determining the PCORI fee). There is no exception from the PCORI fee for an HRA offered along with fully insured major medical coverage." (ABD Insurance & Financial Services)
Proving Loss Causation in Breach of Fiduciary Claims: The Circuit Split Widens (PDF)
"[M]ost circuit courts of appeals agree that ERISA requires that causation between the alleged breach and the claimed loss must be established before any liability may be imposed upon a breaching fiduciary. The courts are split, however, as to whether an ERISA plaintiff or the defendant-fiduciary bears the burden of proving the causal link between breach and loss. In other words, does the burden compose an element of the claim and thus fall upon the plaintiff, or does the burden constitute an affirmative defense and thus fall upon the defendant-fiduciary?" (Jackson Lewis P.C., via Bloomberg BNA Pension & Benefits Daily)
2017 Guide to Reporting and Disclosure for Employee Benefit Plans (PDF)
72 pages. "The Guide is intended to be useful in [1] identifying forms to be filed and distributed annually; [2] developing controls for compliance, including an internal calendar for reporting and disclosure; [3] determining and coordinating reporting and disclosure responsibilities for plan sponsors, their actuaries, attorneys, and accountants; [4] identifying special reporting and disclosure requirements for plan implementation, amendment, termination, etc.; [5] evaluating administrative considerations in establishing a new or supplemental plan; [6] advising on responsibility for compliance with reporting and disclosure rules." (PricewaterhouseCoopers)
Midsized Employers Worrying More About Compliance, Health Care Costs, Reform, and Less About Employee Engagement
"Of the midsized business owners surveyed, 40 percent indicate they have experienced unintended expenses related to noncompliance with government regulations. The number of larger midsized companies that cited unintended compliance penalties grew significantly in 2016, up to 51 percent from 40 percent in 2015. The number of smaller midsized businesses that cited receiving penalties for noncompliance remained relatively steady at 37 percent in 2016, a slight increase from 35 percent the previous year." (Wolters Kluwer Law & Business)
[Guidance Overview] Mental Health Parity Rules Include Eating Disorders as Mental Health Conditions
"While employers that sponsor health plans have potential liability for MHPAEA violations, it may be difficult for employers to get the information they need from claims payers to determine whether the rules' requirements for [non-quantitative treatment limitations (NQTLs)] are being met. Therefore, employers may want to obtain assurances regarding application of NQTLs under their plans from the carriers and vendors that pay claims under their plans.... The agencies' Draft Form, although not required to be used at this time, could be beneficial for plan sponsors in that it provides a standard participant request form which might provide some level of administrative ease on the part of plan sponsors when dealing with participants' requests for information." (Lockton)
[Guidance Overview] Mental Health Parity: Can You Show That Your Health Plan Complies?
"On June 16, 2017, the [DOL] published a draft of a model form that an employee (or his or her representative) could use to request documentation of compliance with the [MHPAEA]. If an employer receives this type of request (even if not on the DOL's model form), it has just 30 days to respond. If an employer doesn't respond in 30 days, penalties of up to $110 per day may apply." (Vorys, Sater, Seymour and Pease LLP)
[Guidance Overview] Employers Offering Mental Health Benefits Should Prepare for More Scrutiny
"Only three pages long, the model form focuses on one of the more complicated aspects of the MHPAEA: its rule against applying nonquantitative treatment limitations (NQTLs), such as process or evidentiary standards, more stringently to mental health and substance use disorder benefits than they are applied to medical or surgical benefits. (The form does not cover quantitative limits such as caps on office visits or counseling sessions.) Participants could use the form before receiving treatment or as part of an effort to challenge a claim denial related to those limits." (Ogletree Deakins)
Second Circuit: New York Law Prohibits Insurance Company from Offsetting Personal Injury Settlement Against Long Term Disability Benefits
"Arnone argued that, because he is a New York resident who was employed in New York and injured in New York, N.Y. Gen. Oblig. Law Section 5-335 applies to his settlement and prohibits Aetna from reducing his LTD benefit.... [T]he court found that: [1] section 5-335 would prohibit Aetna's offset action as a matter of law and, for that reason, would render its decision arbitrary and capricious; [2] section 5-335 is a law that regulates insurance and is saved from express preemption under ERISA; [3] the Plan's choice of law provision sets forth only which jurisdiction's law of contract interpretation and contract construction will be applied, it does not bind the court to apply the full breadth of Connecticut law[.]" [Arnone v. Aetna Life Ins. Co., No. 15-2322 (2d Cir. June 22, 2017)] (Roberts Bartolic)
[Discussion] Form 5500 Needed for Association-Sponsored Health Plan?
"Any reason a health plan offered through a non-profit (non-governmental, non-religious) association would not be considered a Plan Sponsor and therefore be required to file an annual Form 5500? The association in question is unhappy about paying a $4,000 DFVC penalty and would rather do nothing. Yes, the potential consequences have been explained." (BenefitsLink Message Boards)
ERISA Plan Choice-of-Law Provisions: Disability Claim Reviewed Under Abuse of Discretion Standard of Review
"The Court rejected Plaintiff's argument that de novo review should apply because Indiana law disfavors discretionary review.... Courts are not consistent on what effect choice-of-law provisions have on the standard of review. Many courts have determined, for example, that state law prohibitions of discretionary clauses fall within ERISA's savings clause and are not preempted by ERISA." [Kalnajs v. The Lilly Extended Disability Plan, No. 16-62 (W.D. Wis. June 14, 2017)] (Lane Powell PC)
Ninth Circuit: ERISA Does Not Preempt California Law Voiding Discretionary Clauses
"The court's conclusion that the law reaches discretionary clauses in plan documents -- not just insurance contracts -- might seem problematic for self-insured plans. But because this case involved an insured plan, the court did not discuss the 'deemer' clause of ERISA's preemption provision, under which an ERISA plan cannot be deemed to be an insurer for purposes of state insurance laws. Accordingly, the law's applicability to self-insured plans remains an open issue." [Orzechowski v. The Boeing Co. Non-Union Long-Term Disability Plan, No. 14-55919 (9th Cir. May 11, 2017)] (Thomson Reuters / EBIA)
[Guidance Overview] It's Time to Prepare for Participant Requests under New Mental Health Parity Guidance
"Plans may consider reviewing the draft model request form to ensure that they are prepared to respond to any document requests. The guidance also provides a good excuse for plans to revisit their claims and appeals documents and procedures to ensure that they satisfy ERISA, which requires that some of this MHPAEA-required information be provided automatically in connection with a claim denial. Using an ERISA-compliant claim denial form may reduce the number of participant requests on the proposed forms. In addition, plans should examine any limits they impose on eating disorder treatment for compliance with the parity requirements." (Morgan Lewis)
[Official Guidance] IRS Now Accepting Renewal Applications for ITINs Set to Expire by End of 2017
"The agency urges taxpayers affected by changes to the [Individual Taxpayer Identification Number (ITIN)] program to submit their renewal applications as soon as possible to avoid the rush. In the second year of the renewal program, the IRS has made changes to make the process smoother for taxpayers. The renewal process for 2018 is beginning now, more than three months earlier than last year." [Also available: 2017 Form W-12, Preparer Tax Identification Number (PTIN) Application and Renewal] (Internal Revenue Service [IRS])
Witness Statements to ERISA Advisory Council: 'Reducing the Burden and Increasing the Effectiveness of Mandated Disclosures with Respect to Employment-Based Health Plans in the Private Sector'
Testimony submitted for June 6, 2017 meeting: (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
Tide Is Turning Against Discretionary Authority and the Abuse-of-Discretion Standard of Review (PDF)
"[L]egislators, courts, and regulators have all moved to severely limit the discretion of plan administrators and walk back the deference traditionally afforded their decisions under the deferential, abuse -of-discretion standard of review.... Because of the Orzechowski decision, ERISA plans in California, and maybe elsewhere in the Ninth Circuit, that rely on a 'policy, contract, certificate, or agreement' have now lost the benefit of deferential judicial review.... The Second Circuit has abandoned the 'substantial compliance' doctrine and held that even minor violations of the [DOL] claim regulations deprive a plan administrator of the abuse-of-discretion standard of review." (Groom Law Group)
Tenth Circuit: Plaintiff Bears the Burden of Proving Causation in ERISA Breach of Fiduciary Duty Cases
"The Tenth Circuit reasoned that the statute limits liability to losses 'resulting from' a breach of fiduciary duty, which dictates that the burden remains with the plaintiff at all times, since the plain language of the statute makes causation an element of the claim. This holding is in line with Second, Sixth, Ninth, and Eleventh Circuit Courts of Appeals." [Pioneer Centres Holding Co. Employee Stock Ownership Trust v. Alerus Financial, N.A., No. 15-1227 (10th Cir. June 5, 2017] (Littler)
[Guidance Overview] Mental Health Parity Form Would Assist Participants in Requesting Plan Documents
"In introductory language, the form contains a high-level overview of the MHPAEA's requirements, including the type of financial requirements and treatment limits that are subject to mental health parity. The form notes that plans must provide individuals certain plan documents addressing their benefits (including benefit coverage limits) on request, and within 30 days of when the plan receives the request." (Thomson Reuters Practical Law)
[Official Guidance] Text of EBSA Request for Nominations to the 2018 ERISA Advisory Council
"The terms of five members of the [Advisory Council on Employee Welfare and Pension Benefit Plans (the ERISA Advisory Council)] expire at the end of this year. The groups or fields they represent are as follows: [1] employee organizations; [2] employers; [3] corporate trust; [4] investment management; and [5] the general public.... [N]otice is hereby given that any person or organization desiring to nominate one or more individuals for appointment to the [ERISA Advisory Council] to represent any of [these] groups or fields ... may submit nominations [which] must be received on or before August 1, 2017." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Official Guidance] Text of IRS Disaster Relief Notice AR-2017-01, for Victims of Severe Storms in Arkansas
"Victims of the Severe Storms, Tornadoes, Straight-line Winds, and Flooding that took place beginning on April 26, 2017 in parts of Arkansas may qualify for tax relief from the [IRS].... Individuals who reside or have a business in Benton, Boone, Carroll, Clay, Faulkner, Fulton, Jackson, Lawrence, Pulaski, Randolph, Saline, Washington, and Yell Counties may qualify for tax relief." (Internal Revenue Service [IRS])
Fiduciary Obligations to Safeguard Plan Participants' Data
"Because benefit data includes participants' names, Social Security numbers, account information and PII, it is increasingly important for ERISA plan fiduciaries to acknowledge and act on their inherent responsibilities to secure online plan data from cyberattacks. Failure to do so would almost certainly be counter to the prudence standard by which ERISA fiduciaries are required to abide.... Given the broad scope of an ERISA fiduciary's obligation to act with prudence, it is in the best interest of all parties involved with ERISA plans to begin developing systems and procedures for properly handling and securing PII." (Trucker Huss)
[Official Guidance] Text of FAQs on ACA Implementation, Part 38: Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act (PDF)
"[T]he Departments are again soliciting comments on the questions and issues listed above that were previously raised in [ACA] Implementation FAQs Part 34.... In addition, ... the Departments are soliciting comments on a draft model form that participants, enrollees, or their authorized representatives could -- but would not be required to -- use to request information from their health plan or issuer regarding NQTLs that may affect their MH/SUD benefits, or to obtain documentation after an adverse benefit determination involving MH/SUD benefits to support an appeal.... Q1: Does MHPAEA apply to any benefits a plan or issuer may offer for treatment of an eating disorder? " [Also available: Supporting Statement as submitted to OMB.] (U.S. Department of Health and Human Services [HHS], U.S. Department of Labor [DOL], and U.S. Department of the Treasury)
Taking Your Wellness Program from Good to Great
"Keep it fair for everyone.... Follow your leader.... Stretch your budget.... Pick the right wellness vendor.... Use your team's strengths.... Keep what works.... Take a broad approach.... Communication matters." (The Alliance)
[Guidance Overview] IRS Begins ACA Reporting Penalty Process
"Large employer reporting was required for 2015 and 2016, even if transition relief from ACA penalty taxes applied for 2015. The potential penalties can be very large ... Employers that failed to furnish Form 1095-C and file copies with Form 1094-C may receive the IRS notices ... known as Letter 5699 forms.... Employers that receive a Letter 5699 form will have only thirty days to complete and return the form[.]" (E is for ERISA)
NLRB: ACA-Mandated Benefit Plan Changes Still Require Bargaining
"[A] union was in the process of negotiating an initial collective bargaining agreement when the employer, without prior notice to the union, began notifying employees that they would be eligible for health insurance after 60 days of employment instead of the prior requirement of one year of employment.... The employer argued that its unilateral change was privileged because the ACA mandated coverage of the newly hired employees.... The NLRB applied the 'well-established' doctrine that, when an employer is compelled to make changes in terms and conditions of employment in order to comply with the mandates of a statute, it must provide the collective bargaining representative notice and an opportunity to bargain over the discretionary aspects of such changes." [Western Cab Company, 365 NLRB No. 78 (May 16, 2017)] (McDermott Will & Emery)
Employers Satisfied with Private Exchanges in Overwhelming Numbers
"Nearly 100% of employers are satisfied using a benefits marketplace (also known as a private exchange) to deliver an online shopping experience for choosing health and other benefits to employees ... 97% of employers are satisfied ... 86% think the benefits marketplace has helped them control benefits costs. 89% say moving to the benefits marketplace has impacted their company culture positively." (OneExchange from Towers Watson)
[Guidance Overview] Expensive Problems Arise for Employers Who Don't Have Clear Health Plan Eligibility Conditions
"An insurance company needs to be able to determine who is eligible for the plan so it knows who to cover with the plan's benefits. However, an insurance company has no skin in the game as it relates to the 4980H penalties. This is perhaps creating part of the problem as the insurance company does not care if the look back measurement method is accurately (or even correctly) explained and incorporated into the eligibility conditions. Consequently, there is frequently one set of eligibility standards that apply for the purposes of the look back measurement method and a separate set of standards applied to the actual health plan. Furthermore, sometimes the health plan's SPD is not providing any eligibility conditions. This lack of synchronization is a huge problem." (Accord Systems, LLC)
[Guidance Overview] Patient-Centered Outcomes Research Institute Fees Due by July 31 (PDF)
"The PCORI fees apply to 'specified health insurance policies' and 'applicable self-insured health plans.' ... The PCORI fees do not apply if substantially all of the coverage under a plan is for excepted benefits, as defined under HIPAA.... Although stand-alone retiree health plans are generally exempt from many of ACA's requirements, sponsors and issuers of these plans are subject to the PCORI fees, unless the plan qualifies as an excepted benefit under HIPAA.... If continuation coverage under COBRA (or similar continuation coverage under federal or state law) provides accident and health coverage, the coverage is subject to ACA's PCORI fees ... HRAs and health FSAs are not completely excluded from the obligation to pay PCORI fees.... The entity that is responsible for paying the PCORI fees depends on whether the plan is insured or self-insured." (Cowden Associates, Inc.)

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