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Health plan admin - misc

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Administrative Exhaustion as a Defense to Statutory ERISA Claims? Not So Much.
"[T]he Sixth Circuit joined six other circuit courts in holding that ERISA claims that seek vindication of statutory ERISA rights pertaining to the legality of a plan amendment, as opposed to an interpretation of the plan, are not subject to administrative exhaustion requirements. The Sixth Circuit joined the Third, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits in so holding, while the Seventh and Eleventh Circuits require administrative exhaustion even where plaintiffs assert statutory rights." [Hitchcock v. Cumberland Univ. 403(b) DC Plan, No. 16-5942 (6th Cir. Mar. 14, 2017)] (Seyfarth Shaw LLP)
[Official Guidance] Text of IRS Publication 5258: ACA Information Returns (AIR) Submission Composition and Reference Guide (PDF)
138 pages; rev. Mar. 2017. "The purpose of this document is to provide guidance to all types of external transmitters about composing and successfully transmitting compliant submissions to IRS. The audience of this document is: [1] Issuer: A business filing their own ACA Information Returns regardless of whether they are required to file electronically (transmit 250 or more of the same type of information return) or volunteer to file electronically ... [2] Transmitter -- A third-party sending the electronic information return data directly to the IRS on behalf of any business required to file. [3] Software Developer -- An organization writing either origination or transmission software according to IRS specifications." (Internal Revenue Service [IRS])
Use of Electronic Medium to Furnish Participant Notices, Documents and Elections (PDF)
"In this age of electronic communication the ability to deliver participant documents, notices, consents and election options through electronic medium can be a great convenience and cost savings to plan sponsors. Both the Treasury and the DOL recognize this and each has its own regulation for use of electronic media.... The document, notice, election or consent will be treated as provided in writing if all the requirements of the appropriate regulation are met." (VOYA Financial)
Court Rules No Deferential Review Where Discretionary Authority Was Addressed in SPD But Not in Plan
"Including discretionary language only in the SPD may not ensure deferential review of plan decisions -- particularly in light of cases emphasizing the supremacy of the formal plan document under ... While it is impossible to gauge whether this denial would have survived deferential review, this decision illustrates some potential pitfalls that can arise from common practices." [Nieves v. Prudential Ins. Co. of America, No. 16-768 (D. Ariz. Jan. 17, 2017)] (Thomson Reuters / EBIA)
Sixth Circuit Joins Six Other Circuits in Ruling Exhaustion of Plan's Administrative Procedures Not Required When Asserting Statutory Violations
"The Sixth Circuit [ruled] that the district court erred by ordering the workers to pursue a 'futile' administrative process before bringing their suit in court.... The court also highlighted that '[i]f such exhaustion were required for those statutory claims, in order for Plaintiffs to receive proper resolution from the plan administrator, the administrator would need to determine whether the retroactive amendment was properly instituted in the first place, i.e., whether the amendment was legal.' The Sixth Circuit held this not to be the administrator's role, but the role of the courts. The decision aligns the Sixth Circuit with the Third, Fourth, Fifth, Ninth, Tenth, and D.C. circuits[.]" [Hitchcock v. Cumberland Univ. 403(b) DC Plan, No. 16-5942 (6th Cir. Mar. 14, 2017)] (Greenberg Traurig)
Blue Cross Wins Appeal Over ERISA Standing
"[The Ninth Circuit] offered a narrow view of standing under [ERISA] by holding that medical providers aren't ERISA plan beneficiaries and thus can bring ERISA lawsuits only in a derivative capacity. The providers in this case also lacked derivative standing, the Ninth Circuit said, because the assignment forms they received from ERISA plan beneficiaries weren't legally valid." [DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., No. 14-16518 (9th Cir. Mar. 22, 2017)] (Bloomberg BNA)
[Official Guidance] Text of IRS Publication 5165: Guide for Electronically Filing ACA Information Returns for Software Developers and Transmitters (PDF)
62 pages, rev. Mar. 2017. "[This publication] outlines the communication procedures, transmission formats, business rules and validation procedures for information returns transmitted electronically through the AIR System.... The procedures in this publication should be used when the following information returns are transmitted electronically for TY2015 and TY2016 in PY2017: Form 1094-B ... Form 1095-B... Form 1094-C ... Form 1095-C ... This publication does not contain information or procedures for filing Form 1095-A." (Internal Revenue Service [IRS])
IRS Plans to Begin Issuing 'Sub-Regulatory' Guidance Again
"The [IRS] is continuing to have productive conversations with the Treasury Department and the Office of Management and Budget, said IRS Commissioner John Koskinen. And 'as we've been having discussions, we have made clear -- and people have agreed -- that a lot of the sub-regulatory guidance we issue is really for the benefit of the taxpayers,' he said March 21 ... 'I think we will begin to issue some greater guidance in those areas.' " (Bloomberg BNA)
District Court Rules That Cross-Plan Offset Constitutes 'Grave Conflict of Interest'
"In an extraordinary decision, [a U.S. district judge] has effectively barred cross-plan offsets. The judge weighed in on two very important questions: ... whether UHC acted 'reasonably' in interpreting its client's plans to permit cross-plan offsetting; and whether the practice complies with the 'fiduciary duties imposed by ERISA'. The court offered an answer to both issues while providing very clear guidance for plans, claims administrators, medical providers and patients." [Peterson v. UnitedHealth Group Inc., No. 14-2101 (D. Minn. Mar. 14, 2017)] (AVYM Healthcare Revenue Consultants)
[Guidance Overview] IRS Provides E-File Instructions for ACA Information Reports on Form 8963
"If you are a Health Insurance Provider that files information report Form 8963, Report of Health Insurance Provider Information, [the IRS encourages] you to file electronically.... Use this three step process to e-file ACA information reports: [1] Registration; [2] e-file Application; [3] Form Submission." (Internal Revenue Service [IRS])
Employer Attitudes on Private Exchanges
"With 74% of employers not interested in using an exchange as a solution for delivering benefits to their active employees, it appears this once heavily touted option lacks any real forward momentum. In fact, less than one percent of respondents were currently using an exchange for active employees." (Chelko Center for Benefits Management)
[Guidance Overview] Welfare Plan Compliance Under the Genetic Information Nondiscrimination Act (PDF)
"GINA was enacted to protect individuals against discrimination in health insurance coverage and employment based on their genetic information. This note describes key definitions and concepts under GINA, provides a detailed look at the prohibitions on the collection and use of genetic information and other rules in the context of group health plans, and reviews the application of GINA to wellness programs and health risk assessments." (Dechert LLP)
Please Pass the Matches: The Unfortunate Truth About Your SPDs
"Litigation has changed the original focus of the SPD from being a clear and concise summary of benefits to being an extensive and legalistic enumeration of a plan's provisions. Instead of plain, easy-to-understand English, the typical SPD is crammed with detailed minutia about the plan, which is generally written in the finest 'legalese.' ... [P]lan sponsors should consider communication and design techniques that will make the SPD a better reference tool by making it: [1] Easy to navigate; [2] Easy to understand; [3] Easy to access." (Findley Davies | BPS&M)
Why You Should Share Total Compensation Statements with Your Employees
"Most comp statements will at minimum provide information on the employee's cash compensation and a monetary value for non-cash benefits.... [S]hare compensation reports when it is relevant to the employee: Upon hire, after an increase in pay, or after a promotion." (PayScale)
Putting Telehealth to Work
"90% of employers reported they will provide telehealth benefits in states where they can this year. Yet ... of the employees who had access to telehealth services in 2016, only 3% used the benefit.... Employers need a well-executed and consistent communication strategy promoting the benefit that will educate employees about the existence and process for using telehealth services and to address any barriers to utilization. This strategy will help employees' knowledge and trust in the benefits that telehealth services offer." (Grooms Benefit Solutions)
District Court Bars Cigna from Recouping Self-Insured Plan Assets
"Judge Alfred V. Covello ruled in favor of surgical center defendants and against Cigna, barring Cigna from recouping self-insured plan assets based on alleged 'overpayments' which were predicated on Cigna's 'legally incorrect' interpretation of ERISA plans 'exclusionary language.' This decision offers clear guidance on critical issues such as cross-plan offsetting, Cigna's fee forgiveness protocol, SIU practices and ERISA disclosure requirements[.]" [Connecticut General Life Ins. Co. v. True View Surgery Center One, LP, No. 14-1859 (D. Conn. Mar. 8, 2017)] (AVYM Healthcare Revenue Consultants)
IRS Information Letter Addresses Cafeteria Plan Forfeitures
"The letter responds to a question about whether unused funds in a cafeteria plan are paid to the U.S. Treasury when the employer ceases operations and the plan terminates ... [T]he disposition of unused funds when a cafeteria plan terminates depends on the plan document's provisions regarding plan termination and the facts and circumstances at the time.... [P]roposed regulations under Code Section 125 provide ... [that] forfeitures may be used to defray plan expenses, allocated among participants on a reasonable and uniform basis (but not based on claims experience), or retained by the employer." (Thomson Reuters / EBIA)
[Guidance Overview] ERISA Civil Penalties: Adjusted Amounts for 2017
"DOL's penalties as they relate to ERISA violations pursuant to the Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017, which became effective on January 13, 2017." (Butterfield Schechter LLP)
ACA Information Returns (AIR) Working Group Meeting, March 14, 2017 (PDF)
36 presentation slides. Topics include: [1] Filing season 2017 lessons learned; [2] Filing due dates; [3] Extensions of time to file; and [4] Waiver from filing electronically. (Internal Revenue Service [IRS])
[Guidance Overview] HHS Offers States Flexibility to Increase Market Stability and Affordable Choices
"Section 1332 of the [ACA] permits a state to apply for a State Innovation Waiver to pursue innovative strategies for providing its residents with access to high quality, affordable health insurance. The Departments are [hereby] promoting these waivers to give states the opportunity to develop strategies that best suit their individual needs. Through innovative thinking, tailored to specific state circumstances, states can lower premiums for consumers, improve market stability, and increase consumer choice." (U.S. Department of Health and Human Services [HHS])
[Guidance Overview] IRS Takes Aim at Latest Wellness Program Scheme, But Overly Broad Language Can Be Taken Too Far as Applied to Traditional Coverage (PDF)
"Whereas most health indemnity policies are fully insured, ... benefits under the self-funded health indemnity plan lacked economic substance in that payments could be made for merely completing a health risk assessment or calling a health coach. The IRS issued a Chief Counsel Memorandum (CCM) on this arrangement in early 2016, and in a recent follow-up CCM, the IRS exposed the fatal defects under the self-insured program. As discussed herein, however, some overly broad statements in the most recent CCM appear to be contrary to established law with regard to more traditional fully insured health indemnity plans." (Employers Council on Flexible Compensation [ECFC])
[Guidance Overview] 21st Century Cures Act Overrules IRS Guidance on HRAs, Enhances Enforcement of Mental Health Parity Act
"[The 21st Century Cures Act (CCA) authorizes] employers that don't qualify as applicable large employers, i.e., employers with less than 50 full-time employees and full-time equivalents, to maintain certain reimbursement arrangements without incurring the $100 per day per employee penalty for failing to comply with the ACA.... The CCA directs the Departments of [HHS], Labor, and Treasury to issue a compliance guidance document with the goal of improving compliance with the MHPAEA.... Within six months after the enactment of the CCA, the Secretary of [HHS] must convene a public meeting that includes the Departments of Health and Human Services, Treasury, Labor and Justice, as well as representatives from the States, to develop an action plan for MHPAEA compliance." (Thompson Coburn)
[Guidance Overview] Start Now to Prepare to Use the New SBC Template, Due to Additional Work Required and Approaching Deadline
"Plan sponsors that have an annual open enrollment period must use the new SBC template beginning on the first day of the first open enrollment period that begins on or after April 1, 2017. For plans without open enrollment, the new template must be used for the plan year beginning on or after April 1, 2017. The new SBC template includes significant changes from the old template. The SBC must include an addendum with a nondiscrimination notice and 15 language-assistance taglines." (Segal Consulting)
Key Findings from AHIP's Provider Directory Initiative (PDF)
10 pages. "Selected strategies that health plans should consider in future efforts to improve the accuracy and timeliness of provider directories are ... [1] Improving provider engagement.... [2] Increasing provider accountability ... [3] Improving and harmonizing technical integration and standards." (America's Health Insurance Plans [AHIP])
The American Health Care Act: Key Takeaways for Employers and Plan Sponsors
"Individuals enrolled in group health plans would not eligible for the tax credit, unless they are enrolled in COBRA coverage that is not subsidized by the employer. Importantly, in order to receive the credit, the coverage (whether individual market or COBRA) cannot cover services related to abortion (subject to certain exceptions). This arrangement would likely create administrative headaches for plan sponsors and COBRA administrators. The new tax credit scheme appears to require monthly reporting by eligible coverage providers, so COBRA administrators would have to develop procedures to comply with this requirement." (Proskauer's ERISA Practice Center)
Identifying Barriers to Health and Wellness Program Success
"It's important to recognize that participation isn't just a one way street; and that it's not solely impacted only by your employees. True communication centers on a back and forth exchange of ideas between both the employer and the participant." (Corporate Synergies)
Does the Fiduciary Exception Apply to Legal Advice Received By Insurers During the Claims Process?
"Adding to the body of conflicting authority on the scope of the attorney-client privilege in ERISA lawsuits, a district court has found that the fiduciary exception to attorney-client privilege applies to an insurance company that acts as a claim administrator, thus requiring disclosure of communications between the insurer and its lawyers regarding a claim for benefits during the claims process." [McFarlane v. First Unum Life Ins. Co., No. 16-7806 (S.D.N.Y. Feb. 6, 2017)] (Seyfarth Shaw LLP)
Population Characteristics Data Lacking Among Federal, Commercial Health Plans
"Despite a provision within the [ACA] that requires health plans to collect patient information on race, ethnicity and language, that data is still missing among federal and commercial payers.... As of 2015, half of Medicaid plans and nearly three-quarters of Medicare plans had complete or partially complete data on race ... Two-thirds of commercial plans did not have any data tied to race and even fewer collected ethnicity or language data[.]" (FierceHealthcare)
Survey Highlights Employees' Health Plan Enrollment Drivers
"[M]ore than 40 percent of the HSA participants interviewed said they enrolled in HSAs in order to use the accounts as savings vehicles for future health care needs. This response came in ahead of 'tax savings,' which 21 percent selected, and 'lower premiums' offered by High Deductible Health Plans (HDHP), which only 9.5 percent of survey respondents selected.... When asked to rate the importance of several factors when evaluating health account vendors, 85 percent of benefits decision-makers rated 'employee customer service' as very important, while 81 percent ranked 'overall employee experience' as very important." (Connect Your Care)
In a Significant Change, Second Circuit Requires Strict Compliance with DOL Claim Regs
"At least in the 2nd Circuit, new pitfalls await ERISA administrators processing claims and appeals from adverse benefit determinations. If that administrator fails to comply strictly with all [DOL] regulations regarding claims administration, it is likely to lose the significant benefit of the arbitrary and capricious standard of review." [Salisbury v. Prudential Ins. Co. of America, No. 15-9799 (S.D.N.Y. Feb. 28, 2017)] (Thompson Coburn)
Obamacare Oversight: 112th to 114th Congress (PDF)
45 pages. "Since its passage in 2010, the committee has convened 31 oversight hearings on Obamacare and performed systematic and methodical oversight to examine how the administration implemented the most critical components of Obamacare. In these hearings, 107 witnesses testified before the committee, culminating in hundreds of hours of testimony. Of those witnesses, 38 have been administration officials.... The committee's oversight over the last six years, compiled here in its entirety for the first time, has exposed serious deficiencies in Obamacare that have harmed the American people and wasted taxpayer dollars. These oversight hearings and reports have paved the way to legislation that can repeal this harmful law." (Energy and Commerce Committee, U.S. House of Representatives)
[Guidance Overview] The DOL's Revised Regs Applicable to Disability Benefit Claims
"The easiest requirement to meet will be the inclusion of a statement as to when the limitations period will expire ... Writing decisions in a culturally and linguistically appropriate manner also should not present too much difficulty.... Insurers and benefit plans will also need to instruct their claims personnel and any consultants they retain on how to address conflicting opinions and Social Security findings. It will no longer suffice to simply note disagreement or assert that Social Security utilizes different standards." (DeBofsky, Sherman & Casciari, PC)
District Court Finds Insurer's Failure to Establish 'Special Circumstances' for Extension of Time to Decide LTD Appeal Warrants De Novo Review
"[A] District Court judge held that the LTD insurer had failed to establish special circumstances warranting an extension of the time frame for deciding the claimant's appeal during the administrative review process. The Court determined that this constituted a violation of the claims processing regulations under ERISA, thereby warranting a de novo review of the insurer's decision rather than the arbitrary and capricious standard of review that otherwise would apply." [Salisbury v. Prudential Ins. Co. of America, No. 15-9799 (S.D.N.Y. Feb. 28, 2017)] (Robinson & Cole LLP)
[Guidance Overview] IRS Addresses Taxation of Fixed Indemnity Health Benefits (PDF)
"Payments from fixed indemnity health plans are taxable if an employee pays premiums for the coverage on a pre-tax basis. If the employer pays the contributions, payments are taxable unless imputed as taxable income to an employee. When fixed indemnity payments are taxable, employers may need to coordinate with carriers regarding tax withholding." (EPIC)
[Guidance Overview] DOL Boosts Disability Claimant Protections
"During the review process, disability claimants must be guaranteed the right to present evidence supporting their claim and to respond to any new information prior to the final decision. They must also be given notice and a fair opportunity to respond if benefits are to be denied on appeal based on new evidence or rationales not used to deny the benefit at the claims stage." (Fisher Phillips)
March and April 2017 Filing and Notice Deadlines for Qualified Retirement and Health and Welfare Plans
"[This table] provides key filing and notice deadlines common to calendar year plans for the next two months.... [T]he deadlines will generally be different if your plan year is not the calendar year.... [T]he table is not a complete list of all applicable filing and notice deadlines (including any available exceptions and/or extensions), just the most common ones." (King & Spalding)
2016 in Review: ERISA Criminal Enforcement Rises, Civil Enforcement Falls
"In FY 2016, DOL, working in conjunction with the Department of Justice, closed 333 total criminal investigations, marking a 20% increase over FY 2015 and the second highest performance in the last decade. This trend continued the drastic increase in criminal investigations since the DOL's 2009 announcement that it would increase its efforts to enforce the criminal provisions applicable to ERISA plans." (Eversheds Sutherland)
[Guidance Overview] IRS Extends Deadline for Providing Small-Employer QSEHRA Notices
"[C]onceding that many employers could find it hard to comply with this notification requirement in the absence of further guidance, Notice 2017-20 further extends this transition relief. The new notification deadline is 90 days after the IRS issues guidance on the notice's content. There is therefore still ample time for a small employer to adopt a QSEHRA for 2017." (Spencer Fane)
Does an ERISA Plan Administrator Breach Fiduciary Duties by Informing the Employer of Participant's Substance Abuse Problem?
"Can an ERISA plan administrator tell an employer about an employee's substance abuse? Doesn't that breach fiduciary duties to the employee/claimant? Probably not. Check the employer's employment policies because an ERISA plan administrator's '[c]ompliance with [an employer's drug/alcohol] policy cannot constitute breach of fiduciary duty.' " [Williams v. FedEx Corp. Services and Aetna Life Ins. Co., No. 16-4032 (10th Cir. Feb. 24, 2017)] (Lane Powell PC)
ERISA Advisory Council Report Addresses Benefit Plan Cybersecurity
"While a majority of the Report discusses the challenges of cybersecurity, current legal framework, and other background information, the Report also includes an appendix intended to serve as a resource for plan sponsors and service providers, so that they can establish and customize appropriate strategies on cybersecurity for benefit plans." (Morgan Lewis)
Disability Plans Must Follow Claims Procedures Final Rule
"[T]he DOL is attempting to create a more comprehensive review of disability claims, clearly hoping to reduce the need for participants to resort to litigation and reduce difficulties participants experience with delayed claims processing ... A defined benefit pension plan may be affected by these regulations ... [T]he regulations will impact only those pension plans under which a plan fiduciary -- rather than the employer's long-term disability insurer -- makes an independent determination of a participant's disability." (Society for Human Resource Management [SHRM])
[Guidance Overview] FASB Updates Employee Benefit Plan Master Trust Presentation, Disclosure Requirements
"The new standard is designed to make disclosures more useful to users of financial statements. All plans will be required to disclose the dollar amount of their interest in each general type of investment. This will supplement the existing requirement to disclose the master trust's balances in each general type of investment." (Journal of Accountancy)
From Machine-Readable Provider Directories, a Preview of a Revolution
"By enabling the aggregation of provider information and plan comparisons as never before, [standardized, machine-readable provider directories] permit researchers and regulators to advance what we know about health plan provider networks ... This advance in network information and transparency comes at an important time -- as policymakers consider new balances between regulatory requirements, product diversity, and consumer choice." (Health Affairs)
[Official Guidance] Text of IRS Notice 2017-20: Extension of Period for Furnishing Written QSEHRA Notice to Eligible Employees (PDF)
"A [qualified small employer health reimbursement arrangement (QSEHRA)] is an arrangement described in section 9831(d), which was added to the Code by the 21st Century Cures Act ... Under that section, an eligible employer (generally an employer with fewer than 50 full-time employees, including full-time equivalent employees, that does not offer a group health plan to any of its employees) may provide a QSEHRA to its eligible employees. Under a QSEHRA, after an eligible employee provides proof of coverage, payments or reimbursements may be made to that eligible employee for expenses for medical care (as defined in section 213(d) and including expenses for premiums for individual health insurance policies) incurred by the eligible employee or the eligible employee's family members, provided certain requirements are satisfied.... Section 9831(d)(4) generally requires an eligible employer to furnish a written notice to its eligible employees ... Section 6652(o), which was also added to the Code by the Cures Act, imposes a penalty for failing to timely furnish eligible employees with the required written QSEHRA notice.... [An] eligible employer that provides a QSEHRA to its eligible employees for a year beginning in 2017 is not required to furnish the initial written notice to those employees until after further guidance has been issued by Treasury and the IRS. That further guidance will specify a deadline for providing the initial written notice that is no earlier than 90 days following the issuance of that guidance. No section 6652(o) penalties will be imposed for failure to provide the initial written notice before the extended deadline specified in that guidance. Employers that furnish the QSEHRA notice to their eligible employees before further guidance is issued may rely upon a reasonable good faith interpretation of the statute to determine the contents of the notice." (Internal Revenue Service [IRS])
'Probate Exception' Barred Federal Jurisdiction in Health Plan's Reimbursement Claim Against Estate
"The U.S. District Court for the Northern District of New York has ruled that the so-called 'probate exception' to federal jurisdiction precludes federal courts from adjudicating cases implicating federal question jurisdiction, including cases arising under ERISA. In so doing, the N.D.N.Y. joins ranks with a small but growing number of federal district and circuit courts that recognize the 'probate exception' as an absolute bar to federal jurisdiction over any in rem action in the custody of a state probate court." [In re Boisseau, No. 16-549 (N.D.N.Y. Jan. 30, 2017)] (Begos Brown & Green LLP)
[Guidance Overview] DOL Finalizes Regs on Disability Plan Claims Procedures (PDF)
"The vast majority of employers offering disability benefits buy long-term disability insurance, in which case the burden of complying with the new claim processing regulations falls predominantly on the insurer. Additionally, employers typically offer short-term disability benefits through a payroll practice (e.g., salary continuation). Payroll practices are not subject to ERISA, and so the new rules would not apply to those types of arrangements." (Lockton)
[Guidance Overview] Administration Moves to Stabilize Marketplace for 2018
"[HHS has] issued a Proposed Rule designed to stabilize the individual and small group markets by addressing some of insurers' concerns in hopes of keeping them in the marketplace. The Proposed Rule would change the standards relating to special enrollment periods (SEPs), guaranteed availability, the timing of the annual open enrollment period (OEP) in the individual market for the 2018 plan year, network adequacy and essential community providers for qualified health plans (QHPs), and the rules around actuarial value requirements. It also announces upcoming changes to the qualified health plan certification timeline." (Wolters Kluwer)
[Opinion] ECFC Letter Requesting Guidance for Qualified Small Employer Health Reimbursement Arrangements Under the 21st Century Cures Act (PDF)
"[G]uidance is needed for employers to understand whether they are currently offering a disqualifying group health plan.... We would like confirmation that an employer could, in fact, offer a QSEHRA that limits reimbursements to premiums for health insurance.... [A] QSHRA that reimburses at the maximum for individual and family coverage should be considered as providing coverage under the same terms for all eligible employees regardless of the difference in price between a health policy with single coverage and one with family coverage.... An employer's involvement with after-tax payroll deduction for any excess cost of a QSEHRA funded policy (i.e., amounts in excess of the statutory limits) should not cause the employer to become ineligible to offer a QSEHRA ... It would be helpful ... for the Agencies to provide a model notice that will satisfy the requirements for the notice." (Employers Council on Flexible Compensation [ECFC])
[Guidance Overview] Not Ready to File the Forms 1094-C and 1095-C? How to Request an Extension from the IRS
"An employer who has elected to, or is required to, file electronically will have until March 31, 2017 to file the Forms 1094-C and 1095-C. If an employer is not prepared by the requisite deadline, the employer may receive an automatic 30 day extension by filing a Form 8809 with the IRS. This extends the paper deadline until March 30, 2017 and the electronic deadline to May 1, 2017. This article provides basic instructions regarding how an employer should complete the Form 8809." (Accord Systems, LLC)
A Factor in Higher Healthcare Costs: When Evidence Says No, but Doctors Say Yes
"For all the truly wondrous developments of modern medicine ... it is distressingly ordinary for patients to get treatments that research has shown are ineffective or even dangerous.... In 2014, two researchers ... found that typical adults attributed about 80 percent of the increase in life expectancy since the mid-1800s to modern medicine. 'The public grossly overestimates how much of our increased life expectancy should be attributed to medical care,' they wrote ... This perception, they continued ... 'may also contribute to overfunding the medical sector of the economy and impede efforts to contain health care costs.' " (The Atlantic)
Supreme Court Will Not Review Enforceability of Forum Selection Clauses in ERISA-Governed Benefit Plans
"While the only two U.S. appellate courts to rule on the issue of forum selection clause enforceability as it relates to ERISA benefit plans (i.e., the 6th and 8th Circuits) have upheld their validity, ... several U.S. district courts within other circuits have found these clauses unenforceable ... [W]hile forum selection clauses within ERISA-governed benefit plans may continue to be enforced in the 6th and 8th Circuits, other circuits are still free to adopt the opinion that such clauses are invalid and thus unenforceable." (Butterfield Schechter LLP)
Health Savings Accounts and Filing Your Taxes
"As you prepare and compile tax documents, it's important to know what forms you may need to file if you have a Health Savings Account (HSA). In addition to Form 1040, there are two other very important documents -- Form 1099-SA and Form 8889." (DataPath)
Cybersecurity Considerations for Employee Benefit Plans
"[E]mployee benefit plans typically share sensitive employee data and beneficiary and employer information with these service providers. Based upon historical cybersecurity breaches, third parties can be considered the weakest cybersecurity link." (Schneider Downs)
Seventh Circuit Decision Holds ERISA Does Not Authorize Contribution Suits Brought by Plans Against Other Payers
"A recent Seventh Circuit decision leaves ERISA plans paying claims without a remedy to enforce coordination of benefits clauses against other payers.... ERISA plans cannot ordinarily pursue reimbursement or contribution under state law theories, as such claims are typically pre-empted by ERISA. After this decision, they also cannot pursue reimbursement under ERISA." [Cent. States, Se. & Sw. Areas Health & Welfare Fund v. American Int'l Group, No. 15-2237 (7th Cir. Oct. 24, 2016)] (Godfrey & Kahn S.C.)
[Guidance Overview] ERISA Disability Claim Regulations Get a Facelift
"Plans must ensure independence and impartiality of persons involved in claims determinations ... [P]ractitioners, employers, and administrators should expect that plaintiffs will use the rule in litigation to engage in broad-reaching 'conflict' discovery.... [W]hile the rule is intended to reduce conflict and claim disputes, it probably does little to change how plans already operate on this front.... [It] threatens to increase discovery and litigation costs, contrary to ERISA's goals." (Lathrop & Gage, LLP)
Winning Tactic on Summary Judgment to Prove Claimant Received the Policy: Get Key Evidence into the Administrative Record
"To prove delivery of the policy (from four years earlier), Lincoln National included in the administrative record a declaration outlining the delivery practices for this type of policy.... Including the declaration in the administrative record was a winning strategy because the court applied the 'abuse of discretion' standard, rather than a Rule 56 'genuine dispute of fact' standard, where dispute of facts would have to be construed in favor of the nonmoving party." [Sliwa v. Lincoln National Life Ins. Co., No. 13-1433 (D. Nev. Feb. 8, 2017)] (Lane Powell PC)
Five Things to Know About Life After ACA
"Congress and POTUS are largely focused on the individual market.... [In] both the short-term and the long-run, employer reporting is going to continue to exist in one form or another.... If you haven't already mailed out your 1095-Cs, keep working towards the March 2nd deadline for distribution to ensure you can prove you made a Good Faith Effort at compliance.... IRS to allow blanks on Line 61 of Form 1040 ... Don't expect this to be an overnight change." (Hodges-Mace)
Health Insurers May Get More Time to Decide to Participate in Obamacare
"The deadline for filing most health plan applications in the [ACA] exchanges in 2018 would be extended to June 21 from May 3 under [the HHS proposal].... Rate increases must be publicly posted by Aug. 1 in most states under the proposal. The 2018 open enrollment period begins Nov. 1." (Bloomberg BNA)
IRS to Accept Tax Returns Lacking Health Coverage Status; Employer Reporting Unchanged
"On Feb. 15, the IRS announced ... that it would not reject taxpayers' 2016 income tax returns that are missing health coverage information.... It is not a repeal of the individual mandate; penalty provisions are still in place and are currently being enforced.... Those who are responsible for issuing and filing 1094s and 1095s on behalf of their organizations should continue to comply with all relevant laws, regulations, reporting requirements and filing specifications during the repeal-and-replace process[.]" (Society for Human Resource Management [SHRM])
[Guidance Overview] Five Important Things to Remember for the Forms 1094-C and 1095-C Filing Season
"Despite the President, the Executive Order, what your friend said, etc. ALEs still must complete forms ... Deadlines: Employee statements (March 2, 2017) then statements to IRS (March 31, 2017 if filed electronically) ... Each ALE member must file its own Form 1094-C ... All 12 months on line 14 must be completed with a code ... Part III of the Form 1095-C must be completed if an employer sponsors a self-insured plan." (Accord Systems, LLC)

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