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[Opinion] Non-English Speakers Would Be Disadvantaged by Trump Administration Plan to Ease Language Rules on Health Notices
"The government acknowledged in the proposal that the change would lead to fewer people with limited English skills accessing health care and fewer reports of discrimination. But it also questioned the need for these notices, pointing out that in some areas health organizations spend money to accommodate a small contingent of language speakers. For example, notices in Wyoming must account for the 40 Gujarati speakers -- a language of India -- in the state." (Kaiser Health News)
Annual PCORI Fee Deadline Is July 31
"Who needs to pay the PCORI fee? ... To which plans does the PCORI fee apply? ... Does the PCORI fee apply to HRAs? ... Does the PCORI fee apply to dental and vision coverage? or health FSAs or HSAs? ... How is the PCORI fee calculated? ... How much do I need to pay? ... How do we file the PCORI fee?" (ABD Insurance & Financial Services)
[Guidance Overview] Health Care-Related Expiring Provisions of the 116th Congress, First Session
44 pages. "This report describes selected health care-related provisions that are scheduled to expire during the first session of the116th Congress (i.e., during calendar year 2019).... This report generally focuses on two types of health care-related provisions ... The first type of provision provides or controls mandatory spending, meaning that it provides temporary funding, temporary increases or decreases in funding ... or temporary special protections that may result in changes in funding levels ... The second type of provision defines the authority of government agencies or other entities to act, usually by authorizing a policy, project, or activity. Such provisions also may temporarily delay the implementation of a regulation, requirement, or deadline, or establish a moratorium on a particular activity." [Report R45781, June 21, 2019] (Congressional Research Service [CRS])
PCORI Fee Due by July 31, 2019
"Because the PCORI fee only applies to plan years ending before October 1, 2019, the final PCORI fee payment for sponsors of calendar year plans (for the 2018 plan year) will be due by July 31, 2019. The final PCORI fee for plans with plan years ending on or after January 1, 2019 through September 30, 2019 will be due by July 31, 2020." (Buck)
HHS Eliminates Tagline Requirements
"HHS recently released a draft of proposed regulations that would, among other proposed changes, remove the notice and tagline requirements. This means employers subject to these rules would no longer have to post a notice of non-discrimination or add non-English taglines to their communications.... HHS estimates that the cost savings for this and other related changes will be $3.6 billion over five years." (HUB International)
FASB Changes for Employee Benefit Plans with Master Trust Investments
"FASB issued Accounting Standards Update 2017-06 to provide additional guidance on disclosure of an employee benefit plan's interest in a master trust. The changes are aimed particularly at defined contribution plans, which generally have divided interests (rather than percentage interests) in master trusts. The guidance is effective for fiscal years beginning after December 15, 2018, and applies retrospectively to each period for which financial statements are presented." (McDermott Will & Emery)
Making Virtual Health a Pillar of Your Health Plan Participants' Experience
"Nearly all health plans (94 percent) offer virtual health services, and 96 percent expect their reliance on this technology will grow ... However, despite being widely available, virtual health has generally not been embraced by health plan members. One of the most formidable barriers to adoption might be the members themselves." (Deloitte)
Panel Discussion: Current Issues in Employee Benefits & Executive Compensation
"What EBEC issue has had the greatest impact on your clients in the past 12 months? ... What is the most interesting EBEC matter on your desk right now and what are the issues involved? ... Are there any EBEC issues that are on the horizon that could significantly impact your clients and/or your practice? Can you describe the potential impact?" (Thomson Reuters Practical Law)
IRS 2018-2019 Priority Guidance Plan, Third Quarter Update (PDF)
37 pages. Updated March 31, 2019; released June 17, 2019. Employee benefits items begin on page 14. (Internal Revenue Service [IRS])
[Official Guidance] Text of CMS Blueprint for Approval of Affordable Health Insurance Marketplaces (PDF)
44 pages. "This document includes the Blueprint application for states seeking approval to operate either [a state-based exchange (SBE) or state-based exchange on the federal platform (SBE-FP)] for coverage years beginning on, or after, January 1, 2019, and includes the following application components: [1] Declaration of Intent Letter ... [2] Blueprint Application Part A: Application Attestation, Part B: Exchange Declarations, and Parts C or D: SBE or SBE-FP Application." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
[Guidance Overview] CMS Releases 2020 Medicare Part D Benefit Parameters
"Increases in the standard benefit parameters range from approximately 4.8% to 5.9%, with the OOP threshold increasing by 24.5%. Plan sponsors that want to remain qualified for the employer retiree drug subsidy will have to determine if their 2020 prescription drug coverage is at least actuarially equivalent to the standard Medicare Part D coverage." (Buck)
Mental Health Parity Litigation: Utah District Court Finds Conclusory Allegations Insufficient to Overcome Motion to Dismiss
"This case demonstrates the current litigation battle lines. Plaintiffs seek to overcome motions to dismiss and get to discovery based on the allegation that the handling of a claim violates the MHPAEA, while plans and plan administrators continue to insist that the plaintiffs must plead a factual basis for their allegations." [Kerry W. v. Anthem Blue Cross and Blue Shield, No. 19-67 (D. Utah June 5, 2019)] (Ogletree Deakins)
District Court Finds Plan Trustees May Be 'Surcharged' to Remedy Breach That Caused Loss of Benefits Under Unrelated Plan
"The court considered and rejected the Welfare Fund's arguments that [the plaintiff] is not entitled to equitable relief. First, it found that surcharge does not require traceability. The court explained that the Welfare Fund confused restitution with surcharge which does not require unjust enrichment nor the loss of particular plan funds. Amara extended the surcharge remedy to a breach of trust committed by a fiduciary encompassing any violation of a fiduciary duty." [DeRogatis v. Bd. of Trustees of the Welfare Fund of the Int'l Union of Operating Engineers Local 15, 15A, 15C & 15D, AFL-CIO, No. 14-8863 (S.D.N.Y. June 13, 2019)] (Kantor & Kantor)
Supreme Court Fills Docket with ERISA Cases
"After more than two years since ... its last decision in a case involving [ERISA], the court's next term looks to be flush with ERISA issues.... The Supreme Court has granted certiorari in two ERISA cases in as many weeks, and it seems likely the court may grant review in at least one other case." (Greensfelder)
District Court Finds Independent Review Organization to Be Functional Fiduciary
"Judge Rogers concluded that Maximus acted as a functional fiduciary ... Maximus's role was to decide the medical necessity of treatment. The plan guaranteed coverage for medically necessary treatment, but it did not define 'medical necessity.' ... The court also concluded that Maximus had control over plan assets because, if Maximus concluded the treatment was medically necessary, the claim would be paid or the services provided." [Josef K. v. California Physicians' Service, No. 18-6385 (N.D. Cal. June 3, 2019)] (Ogletree Deakins)
[Guidance Overview] Key Takeaways from OCR's Proposed Rule to Scale Back the Non-Discrimination Requirements Applicable to Health Care Entities
"[1] The Proposed Rule would eliminate the definitions section of the regulations, potentially making sweeping changes to whom and how the regulations apply ... [2] The Proposed Rule would eliminate certain costly administrative requirements, such as taglines ... [3] The Proposed Rule would eliminate the individualized focus of the Section 1557 non-discrimination requirements, instead assessing whether an entity meaningfully complies based, in part, on the size of its LEP population ... [4] The Proposed Rule would retain many of its access and communication provisions for LEP and disabled individuals, and might maintain the requirement for entities to issue assurances of compliance ... [5] Finally, the Proposed Rule would eliminate the private right of action under Section 1557." (ReedSmith)
[Guidance Overview] HHS Proposes to Narrow Scope of ACA Nondiscrimination Regs
"[The] new proposal encourages a return to existing civil rights laws.... [No] longer would all operations of an non-health care entity be covered, but instead only the individual activities funded by HHS. As a result, the proposed rules would be inapplicable to most self-insured plans.... HHS proposes repealing in their entirety the provisions requiring taglines and nondiscrimination notices." (Proskauer)
[Official Guidance] Text of Final Regs: Health Reimbursement Arrangements and Other Account-Based Group Health Plans
497 pages. "The final rules allow integrating HRAs and other account-based group health plans with individual health insurance coverage or Medicare, if certain conditions are satisfied (an individual coverage HRA). The final rules also set forth conditions under which certain HRAs and other account-based group health plans will be recognized as limited excepted benefits. Also, the Department of the Treasury and the [IRS] are finalizing rules regarding premium tax credit (PTC) eligibility for individuals offered an individual coverage HRA. In addition, the [DOL] is finalizing a clarification to provide assurance that the individual health insurance coverage for which premiums are reimbursed by an individual coverage HRA or a qualified small employer health reimbursement arrangement (QSEHRA) does not become part of an ERISA plan, provided certain safe harbor conditions are satisfied. Finally, [HHS] is finalizing provisions to provide a special enrollment period (SEP) in the individual market for individuals who newly gain access to an individual coverage HRA or who are newly provided a QSEHRA." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]; and Internal Revenue Service [IRS])
[Official Guidance] Text of Individual Coverage HRA Model Attestations (PDF)
"[I]ndividual coverage HRAs must implement, and comply with, reasonable procedures to satisfy two substantiation requirements: ... [1] The HRA must substantiate that participants and each dependent covered by the HRA are, or will be, enrolled in individual health insurance coverage or Medicare Part A and B or Medicare Part C for the plan year (or for the portion of the plan year the individual is covered by the HRA, if applicable).... [2] The HRA may not reimburse a medical care expense unless, prior to the reimbursement, the participant substantiates that the individual on whose behalf the reimbursement is requested is (or was) enrolled in individual health insurance coverage or Medicare Part A and B or Medicare Part C for the month during which the medical care expense was incurred.... The Departments have developed the attached model attestations for HRAs that choose to use attestation to satisfy either the annual coverage substantiation requirement or the ongoing substantiation requirement." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]; and Internal Revenue Service [IRS])
[Official Guidance] Text of Individual Coverage HRA Model Notice, with Instructions (PDF)
"An individual coverage HRA must provide a written notice to all employees (including former employees) who are eligible for the individual coverage HRA. The final regulations explain the requirements for the notice. Individual coverage HRAs may use this model notice to satisfy the notice requirement." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]; and Internal Revenue Service [IRS])
[Guidance Overview] HHS Proposes to Narrow Scope of ACA Nondiscrimination Regs
"Among the proposed changes are the following: [1] Re-focus on existing civil rights laws.... [2] Repeal and replace the covered entities definition.... As a result, the proposed rules would be inapplicable to most self-insured plans.... [3] Repeal the mandatory notice and tagline requirements.... HHS now estimates that the annual burden of these requirements, which was originally estimated at $7.2 million in one-time costs, is now somewhere in the range of $147 million to $1.34 billion." (Proskauer)
[Official Guidance] Text of HHS Proposed Regs: Nondiscrimination in Health and Health Education Programs or Activities
200 pages. "The Department projects that the proposed rule would result in approximately $3.6 billion in cost savings (undiscounted) over the first five years after finalization.... Specifically, the proposed rule would repeal requirements on covered entities to mail beneficiaries, enrollees, and others, notices concerning non-discrimination and the availability of language assistance services (in 15 languages) with every 'significant' publication and communication larger than a postcard or brochure. The Department projects additional savings from eliminating the requirement for OCR to weigh the presence or absence of language access plans, and from repealing provisions that duplicate disability and sex discrimination regulatory requirements concerning covered entities establishing grievance procedures." (Centers for Medicare & Medicaid Services [CMS], Office for Civil Rights (OCR), U.S. Department of Health and Human Services [HHS])
Disclosure Rules May Be Coming for Health Plans
"A bipartisan bill called the Lower Health Care Costs Act ... addresses surprise medical bills ... [and improves] transparency to ensure that pharmacy benefit managers pass along drug discounts to customers.... [D]eep inside the bill, on page 111, are new sweeping ... and onerous commission disclosure provisions.... [B]rokers would have to disclose their compensation, in writing, at the time an employer signs up for benefits, regardless of how large the employer is. Failure to comply might ultimately result in the employer being required to terminate its carrier or broker relationship.... Disclosure is also required anytime an employee makes written request for it." (ERISAPros)
Improving the Accuracy of Health Plan Provider Directories
"[A] study compared the accuracy of four sources of provider information from five U.S. counties ... Extensive inaccuracies were found across all four sources of information. The inaccuracy rate for phone numbers ... ranged from 25 percent to 48 percent. Insurance carriers offering both MA and ACA exchanges did not report the same addresses 31 percent of the time.... In addition to incentivizing health plans to adopt machine-readable directories, federal policymakers should consider establishing a federal 'source of truth' for provider information, perhaps by revamping the Medicare National Plan and Provider Enumeration System (NPPES) file." (The Commonwealth Fund)
Affordable Care Act PCORI Fee Deadline is July 31
"If a plan is fully insured, then the health insurer is responsible for paying the fee. For self-insured plans, the plan sponsor (generally the employer) is responsible for paying the PCORI fee. For self-insured health plans, the fee is calculated using the average number of total lives covered by the plan (both employees and dependents)." (Findley)
[Official Guidance] Draft 2019 IRS Form 1095-A: Health Insurance Marketplace Statement (PDF)
June 7, 2019. "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 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])
EBSA Provides Revised Model Summary Annual Report Forms
"These revised versions made minor changes to prior model SAR language; for example, the address where plan participants can request a full copy of a Form 5500 has changed." (CBIZ)
[Opinion] American Benefits Council Letter to Senate HELP Committee on Lower Health Care Cost Act (PDF)
"[T]he Council supports the use of the benchmark payment methodology ... [T]he use of the in-network guarantee could materially disrupt the ability of plans and issuers to negotiate with potential network providers ... The Council believes that the use of a mandatory [independent dispute resolution] process would continue to impose on plans and issuers -- as well as providers -- significant administrative inefficiencies, unnecessary costs, and unpredictable outcomes." (American Benefits Council)
Sixth Circuit Rejects HIV/Genvoya Claim Under ACA Section 1557
"In class action litigation, the US Court of Appeals for the Sixth Circuit rejected a health plan participant's claim that an insurer's coverage policy regarding HIV medication violated the nondiscrimination rules of [ACA] (ACA) Section 1557. In analyzing the participant's claim, the Sixth Circuit resolved an open question by holding that Section 504 of the Rehabilitation Act of 1973 does not prohibit disparate-impact discrimination." [Doe v. BlueCross BlueShield of Tenn., Inc., No. 18-5987 (6th Cir. June 4, 2019)] (Thomson Reuters Practical Law)
Considerations for the Self-Insured Health Plan Sponsor When Negotiating a Trend Guarantee in Your Next TPA Selection
"Provider discount analyses are generally thought to do a reasonable job of estimating the expected change in discount upon switching TPAs, but there are several caveats to consider when interpreting the results ... Though employers may intuitively expect that the use of [medical] trend guarantees will make the analysis simpler (i.e., take the bidding TPA that guarantees the lowest trend), there are many issues to consider for the self-funded employer ... TPAs offering trend guarantees will also attempt to control their exposure via reference to [certain listed] issues[.]" (Milliman)
[Guidance Overview] HHS Proposes to Scale Back ACA Nondiscrimination Rules
"The proposed rules adopt a statutory reading that is much more limited than that reflected in the existing regulations, both in terms of the entities subject to the nondiscrimination requirements and in the breadth of those requirements." (Ballard Spahr LLP)
Why Is Active Open Enrollment Becoming the Popular Choice?
"Some employers have adopted a hybrid active-passive enrollment approach, which can provide the best of both worlds -- higher visibility into the benefits being offered while still giving employees the ease of defaulting to the previous year's benefits. The hybrid approach also helps avoid the conflict many benefit teams face with active enrollments when employees 'forget' to elect their benefits and lose their coverage." (Benefitfocus)
[Official Guidance] DOL Updates Model SAR for Welfare Plans
The Form for Summary Annual Report Relating to Welfare Plans was updated on May 30, 2019. (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
District Court Looks to Where Benefit Plan Was Signed and Negotiated in Deciding to Transfer ERISA Class Action from Washington State to Georgia
"The court found that the plaintiff's choice of forum was of minimal importance because it was a putative class action. Interestingly, the court seemed to give considerable weight to the fact that the plan was negotiated and executed in Georgia, finding this was a 'considerable technical connection' to that forum. The court also found that litigation and travel costs would be reduced by having the case in Georgia rather than Washington." [Mayfield v. ACE American Ins. Co., 18-1695 (W.D. Wash. May 13, 2019)] (Baker & Hostetler, via Lexology; free registration required)
Hiring Interns and Other Seasonal Employees: When Does ACA Require Benefits Be Offered?
"[1] If interns qualify as seasonal or variable-hour employees, clearly define them and state this in their offer letters.... [2] Closely track the work and hours of interns. Remember a long-term substitute should not replace hiring regular employees. [3] Measure your seasonal employees over a defined measurement period to know if they will become benefits-eligible if they remain employed.... [4] If you decide to hire interns after they complete their internship, offer benefits as appropriate[.]" (Tango Health)
PCORI Filing Due by July 31
"The payment due for a given July 31 covers the plan year ending in the preceding calendar year (e.g., the fee payable by July 31, 2019 is for plan years ending in 2018). The PCORI fee will apply only to policy and plan years ending on or before Oct. 1, 2019. For plan years ending after Oct. 1, 2019, the PCORI fee will no longer apply." (Lockton)
Deal-Breaking M&A Issues Related to Employee Benefit Plans and Executive Compensation
"The list [in this article] is intended to facilitate the detection, negotiation, and resolution of possible employee benefit plan and executive compensation-related problems.... [S]ellers may defuse risks and streamline negotiations through proactive pre-sale planning.... [B]uyers may maximize their deal-related protections (and their post-closing alternatives) by assuring early stage attention to [these items]." (The Wagner Law Group)
[Guidance Overview] New Jersey Individual Mandate Will Require Extra Reporting Starting in February 2020
"the State of New Jersey enacted its own Individual Mandate beginning in 2019 which mimics the ACA's Individual Mandate prior to it being reduced to $0. From an employer's perspective the New Jersey Individual Mandate will create additional reporting requirements in February 2020 for employers who have employees who reside in New Jersey.... From an employer's perspective the most important part of the New Jersey Individual Mandate is the new reporting requirement." (Accord)
[Official Guidance] Text of CMS Change to Risk Adjustment Holdback Policy for the 2018 Benefit Year and Beyond (PDF)
"Beginning with the 2018 benefit year and beyond, there are two new aspects to the HHS-operated risk adjustment program that can be appealed: risk adjustment data validation (RADV) results and the high-cost risk pool (HCRP) transfers.... CMS is finalizing the proposed change and, beginning with the 2018 benefit year, will release the holdback amounts without regard to any pending appeals and make any necessary post-calculation adjustments in the event an appeal is successful." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
Can Employees Release ERISA Fiduciary Breach Claims?
"[A] federal district court ... determined that a general release that stated 'by signing this document you are releasing all known claims' without mentioning ERISA prevented a participant from suing an ESOP trustee for fiduciary breach. The decision contains a good discussion of the factors to be reviewed in determining whether such a release is valid and enforceable." [Innis v. Bankers Trust Co. of South Dakota, No. 16-650, (S.D. Ia. Apr. 30, 2019)] (Cohen & Buckmann, P.C.)
2020 Inflation Adjustments Are Rolling Out Just in Time for 2020 Planning
"In the last few weeks ... federal agencies released some of the applicable inflation-adjusted benefits limits for 2020, including 2020 limits related to health savings accounts (HSAs)." (Lockton)
[Guidance Overview] HHS Proposes Eliminating Mandatory Notices, Gender Identity Protections from Nondiscrimination Rules
"According to HHS, those required to provide notice have reported that this rule required such entities to send 'billions' of notices in aggregate each year, and HHS estimates that the cost of this requirement is $3.2 billion over a five-year period. Furthermore, HHS reports that the rule has not had a meaningful impact on language access since 2016, specifically suggesting that many providers have not been providing this notice. Therefore, the proposed rule would eliminate the requirement for entities to send notice and tagline inserts in communications to patients and customers." (McGuireWoods)
PCORI Fee Due by July 31
"For fully insured health plans, the insurance carrier files Form 720 and pays the PCORI fee.... Employers that sponsor self-insured health plans must file Form 720 and pay the PCORI fee. For self-insured plans with multiple employers, the named plan sponsor is generally required to file Form 720." (Willis Towers Watson)
Communication About Healthcare Benefits: Still Broken
"At present, employees don't have an appetite to learn about health insurance because it's an alphabet soup of acronyms: HDHP, CDHP, HSA, HRA, FSA, HMO, PPO, etc. Few employees understand how different plans work or how costs are shared. The result is that people don't look for savings or even think there are bargains to be found." (Treasury & Risk; free registration required)
Highlights from the Lex Machina 2016-2018 ERISA Litigation Report
"From 2010 to 2018, ERISA case filings declined from nearly 9,000 cases to about 6,600 cases. Delinquent Contribution case filings have seen a significant decline from nearly 4,400 cases in 2010 to over 1,900 cases in 2018.... The Northern District of Illinois has the most case filings by nearly 650 cases ... Judges in the District of South Carolina are the top four most active ERISA judges from 2016 through 2018.... In ERISA cases overall, 74% resolved with a likely settlement.... Over the three-year period from 2016 to 2018, courts awarded over $1 billion in Approved Class Action Settlement damages." (Lex Machina; free registration required to view full report)
HSAs Get AI Upgrades
"New users are asked questions about their health histories, income and risk tolerance. Machine learning is used to compare their answers against a large insurance-claims data set, analyze the information and then offer guidance. The tool analyzes claims and location data, for instance, to see if people are getting the most cost-effective care." (The Wall Street Journal; subscription may be required)
[Guidance Overview] Proposed ACA Section 1557 Revisions Would Affect Transgender Benefits and Group Health Plan Notices
"Under the revised rule, group health plans will no longer be required by Section 1557 to cover gender transition services, including both prescription drugs and medical procedures.... The proposed revisions also remove the requirement that covered group health plans include notice of their nondiscrimination policies and taglines informing individuals that language assistance services are available in significant publications." (Smith, Gambrell & Russell, LLP)
Smallest Businesses Lead the Way with Personalized Benefits Education
"47% of employees who work for companies with fewer than 100 employees report understanding their benefits 'very well.' ... Only 33% of employees who have more than 100 coworkers report understanding their benefits that well.... Nearly 25% of employees at the smallest businesses say individual meetings with benefits experts are available to them, compared to just 14% at employers with more than 100 workers. And 37% of the smallest employers have group meetings with HR professionals to discuss benefits, compared to just 29% of larger employers." (Colonial Life)
[Guidance Overview] Self-Funded Group Health Plans: Michigan's New No-Fault Law Requires Action
"Employers sponsoring self-funded group health plans with Michigan employees must re-examine their coordination of benefit rules as a result of the new Michigan no-fault reform legislation. And, regardless of whether design changes are made, the law will require employers to educate employees as to their new coverage options and how to make sure they don't have any gaps in their combined coverage." (Miller Johnson)
When Can You Terminate Health Coverage During FMLA?
"Retroactive termination can occur only if: [1] the employer has established policies regarding other forms of unpaid leave that provide for the employer to cease coverage retroactively to the date the unpaid premium payment was due, and [2] a notice was given to the employee at least 15 days before the end of the 30-day grace period." (Graydon)
[Guidance Overview] HHS Proposes to Strip Gender Identity, Language Access Protections from ACA Anti-Discrimination Rule
"The proposed rule would entirely eliminate: [1] The definitions section of the current rule ... [2] Specific nondiscrimination protections based on sex, gender identity, and association; [3] Major language access requirements ... [4] Notice requirements that require covered entities to post information about Section 1557 and nondiscrimination at its locations and on its website; [5] Requirements to have a compliance coordinator and written grievance procedure to handle complaints about alleged violations of Section; and [6] Various enforcement-related provisions [.]" (Katie Keith, in Health Affairs)
Supreme Court Could Soon Consider Several ERISA Cases
"The cases include examples of 'stock drop' litigation; litigation about the burden of proof to establish loss; a case that tests the 'actual knowledge' standard for statute of limitations purposes; and a case that examines pleading standards under ERISA." (planadviser)
District Court Rejects Attempt to Certify Class Against Third-Party Plan Administrator
"In affirming its denial of class certification, the court recognized that ERISA Section 502(a)(3) does not address which parties may be sued under the statute and 'admits of no limits . . . on the universe of possible defendants.' However, the court recognized that there are limits on a plaintiff's ability to bring a Section 502(a)(3) claim against a nonfiduciary.... The court ultimately found that the appropriate equitable relief requirement doomed the plaintiff's class claims against the third-party administrator." [Duggan v. Towne Properties Group Health Plan, No. 15-623 (S.D. Ohio, Mar. 31, 2019)] (Baker Hostetler, via Lexology; free registration required)
Workplace Wellness Can Deliver a Healthy ROI
"One study found that less than half of eligible employees participate in their plan's initial assessment phase, and the participation rate drops to less than 20% when programs actually kick in.... [Factors] important to achieving desired goals with wellness programs [include]: Leadership engagement on all levels ... Alignment ... with the organizational core mission and values, objectives, operations and cultural norms.... Opportunities for engagement ... Communication ... Continuous evaluation ... Quality of programming." (Sales & Marketing Management)
Tips for a Successful Open Enrollment
"[Y]our strategy needs to involve sending bite-size chunks of information throughout the year.... [W]ith advancements in technology, print and digital pieces take on many different forms.... Write your titles in ways that capture [employees'] attention and provide information using minimal words.... Take out the jargon ... Have fun with themes ... Ask for feedback." (WorldatWork)
District Court Refuses to Enforce an ERISA Anti-Assignment Provision
"The problem was the document in which the anti-assignment provision appeared. It was not in a formal plan document, nor in a Summary Plan Description or a Statement of Material Modification. It was contained in the Administrative Services Agreement (ASA) between the plan insurer and the plan sponsor. The court determined that, for purposes of enforcing a provision against plan participants, the provision must appear in a 'plan document.' " [Long Island Neurosurgical Associates, P.C. v. Highmark Blue Shield, No. 18-81 (E.D.N.Y. Mar. 20, 2019)] (Jackson Lewis P.C.)
Employer-Issued Fitness Trackers Are All the Rage -- But Are Your Privacy Practices Up to Snuff?
"While the employer-provided fitness tracker trend is growing at a significant rate, it is unlikely the law will advance as rapidly. However, there is current legislation that can affect what an employer can do with information obtained by fitness trackers, and there are best practices that employers can implement to mitigate risk." (Fisher Phillips, via Recruiter)
[Official Guidance] DOL Regulatory Agenda, Spring 2019
Proposed Rules (EBSA): [1] Fiduciary Rule and Prohibited Transaction Exemptions, [2] Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage, [3] Improving Effectiveness of and Reducing the Cost of Furnishing Required Notices and Disclosures. Final Rules (EBSA): [1] Amendment of Abandoned Plan Program 1210-AB47, [2] Electronic Filing of Apprenticeship & Training Plan Notices, and Top Hat Plan Statements, [3] Adoption of Amended and Restated Voluntary Fiduciary Correction Program, [4] Health Reimbursement Arrangements and Other Account-Based Group Health Plans, [5] Definition of an 'Employer' Under Section 3(5) of ERISA -- Association Retirement Plans and Other Multiple Employer Plans. (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Official Guidance] Text of IRS Regulatory Agenda, Spring 2019
Benefits-related items include: Determination of Line of Business for Purposes of No-Additional-Cost Service and Qualified Employee Discount Fringe Benefits; Further Guidance on the Application of Section 409A to Nonqualified Deferred Compensation Plans; Deferred Compensation Plans of State and Local Governments and Tax-Exempt Entities; Additional Rules Regarding Pension Plan Funding and Benefit Restrictions; Collectively Bargained Welfare Benefit Funds; Guidance on Rules Applicable to IRAs Under Sections 408 and 408A; Spousal IRAs, SEPs and IRA Technical Changes; Requirements for Employee Stock Ownership Plans; Minimum Vesting Standards; Stage Withholding on Certain Retirement Plan Distributions Under Section 3405(a) and (b); Definition of Church Plan; Application of Various Provisions of Section 2711 of the Public Health Service Act, the [ACA], and the Internal Revenue Code to Health Reimbursement Arrangements; Voluntary Employees' Beneficiary Association (VEBA) Regulations ; Notice to Participants of Consequences of Failing to Defer Receipt of Qualified Retirement Plan Distributions; Expansions of Applicable Election Period and Period for Notices. (Internal Revenue Service [IRS])
Out-of-Network Provider's Claim Against Health Insurer Avoids ERISA Preemption
"A provider that is not seeking benefits based upon an assignment of a patient's claims under ERISA but instead is pursuing state law claims based solely on agreements and representations made directly by the insurer to the provider may survive attempts to remove the case on grounds of ERISA complete preemption." [California Spine and Neurosurgery Institute v. Boston Scientific Corp., No. 18-7610 (N.D. Cal. May 3, 2019)] (Seyfarth Shaw LLP)
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