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Health plan admin - misc

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Appeals Office to Resume In-Person Conferences
" 'Step one is going to be for field cases to turn the decision back over to taxpayers,' Andy Keyso, acting deputy chief at the [IRS] Office of Appeals, said ... 'Do you want an in-person conference? If so, you'll get it.' Step two is to include campus cases. Currently, Appeals is unable to offer in-person conferences for smaller cases that are worked out of the IRS campuses, Keyso said. Field cases include audits by a field revenue agent or office examiner, while campus cases include correspondence exam cases[.]" (Bloomberg BNA)
[Official Guidance] DOL Extends Hurricane Harvey Compliance Guidance and Relief to Employee Benefit Plans Impacted by Hurricane Irma
"The Department understands that plan fiduciaries, employers, labor organizations, service providers, and participants and beneficiaries may encounter issues complying with [ERISA] over the next few months as the implications of Hurricanes Irma and Harvey unfold. The guidance provided in this statement generally applies to employee benefit plans, plan sponsors, employers and employees, and service providers to such employers who were located in a county identified for individual assistance by the Federal Emergency Management Agency (FEMA) because of the devastation caused by Hurricane Irma or Hurricane Harvey." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
Staying Out of Trouble: How to Avoid IRS and DOL Audits (PDF)
48 presentation slides. Topics include: [1] Overview of benefit plan audits; [2] IRS audit triggers and process; [3] DOL audit triggers and process; [4] If your plan is audited; [5] Avoiding audits and compliance issues; [6] Common retirement plan compliance issues; and [7] Common welfare plan compliance issues. (McDermott Will & Emery)
Reminder: Medical Loss Rebates to Employers Must Be Handled Properly
"[Certain] insurers must send rebates to individuals and employers by September 30.... Employers will need to determine how much, if any, of the rebate they can retain, use for plan operations or return to plan participants. Employers are plan fiduciaries and therefore must make prudent determinations in the best interests of the plan participants and beneficiaries. Many employers will take a conservative view and distribute the rebates to plan participants in proportion to the amount that they paid for their coverage, and some may even choose to distribute the entire rebate to plan participants, even if that is not mandated." (Willis Towers Watson)
Indefinite Decision Date in Extension Notice Does Not Meet Claims Procedure Requirements
"[The participant received] a letter from the claims administrator indicating that an extension was needed because the plan had not received information requested from the participant's health care provider. The participant sued, and the claims administrator asked the court to dismiss the case because the participant had not exhausted the plan's claims and appeals process. The court allowed the case to proceed, however, concluding that the plan's claims procedures could be deemed exhausted because the claims administrator had failed to adhere to ERISA-compliant claims procedures." [McFarlane v. First Unum Life Ins. Co., No. 16-7806 (S.D.N.Y. Aug. 15, 2017)] (Thomson Reuters / EBIA)
[Official Guidance] Text of IRS Publication 5258: ACA Information Returns (AIR) Submission Composition and Reference Guide (PDF)
126 pages; rev. Oct. 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])
[Official Guidance] Text of IRS Publication 5165: Guide for Electronically Filing ACA Information Returns for Software Developers and Transmitters (PDF)
62 pages, rev. Oct. 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, TY2016 and TY2017 in PY2018: 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])
[Opinion] American Benefits Council Comment Letter to EBSA on Mental Health Parity Act Disclosure Issues
"A model form that could be used by participants to request information with respect to various [nonquantitative treatment limitations (NQTLs)] could be helpful as long as it is voluntary, in 'plain language' and easy for individuals to understand, and narrowly targeted to specific NQTL disclosure requirements.... We recommend that any model form include a statement, in plain language, providing that the parity analysis, including the NQTL analysis, is not a one-to-one comparison, but rather that the rule requires plans and issuers to adhere to strict standards for testing financial requirements, quantitative treatment limitations and NQTLs." (American Benefits Council)
[Guidance Overview] Retirement Plan and Leave Donation Programs During States of Emergencies
"Employers can offer retirement plans and leave donation programs with features that allow access to retirement funds or paid time off to employees in need. These features can be added using standard plan operational procedures.... [W]hile this relief permits employers to roll out features more quickly, it may come with a potential cost of additional administrative requirements." (Carlton Fields)
7,000 Insurance Agents Held to Be Employees for ERISA Purposes
"[T]he Court concluded that the evidence supported both sides but that the amount of control American Family exercised (or could have exercised) tipped the scales in favor of employee status. At the same time, the Court noted that prior case law has been 'nearly unanimous' in finding insurance agents to be independent contractors and that the resolution of damages will be 'unusually complicated.' " [Jammal v. American Family Ins. Group, No. 13-437 (N.D. Ohio Aug. 1, 2017)] (Vorys, Sater, Seymour and Pease LLP)
Recent DOL Actions Address Impermissible Wellness Programs as Well as Fiduciary Status of Changed Out of Network Provider Payment Methodologies (PDF)
"The DOL claims that the failure to outline the correct out-of-network provider reimbursement methodology in the plan document constituted a breach of fiduciary duty by Macy's as plan administrator, and also by Anthem and Cigna, the third party administrators ('TPAs') of the self-funded Health Plan. The DOL further claims that the wellness program's failure to offer a reasonable alternative standard, and disclose the availability of such standard, was a breach of fiduciary duty, a prohibited transaction, and a violation of the HIPAA wellness rules." (Groom Law Group)
[Official Guidance] Web Page of IRS Help and Resources for Victims of Hurricane Harvey
The IRS has published a web page containing a comprehensive list of disaster relief for victims of Hurricane Harvey. Also posted are IRS news releases, legal guidance, and links to other disaster relief resources. (Internal Revenue Service [IRS])
[Official Guidance] Web Page of IRS Help and Resources for Victims of Hurricane Irma
The IRS has published a web page containing a comprehensive list of disaster relief for victims of Hurricane Irma. Also posted are IRS news releases, legal guidance, and links to other disaster relief resources. (Internal Revenue Service [IRS])
Words Matter for Benefits Compliance
"A recent complaint filed against Macy's by the [DOL] ... [alleges that] changes in its plan's out-of-network reimbursement formula were not reflected in the plan documents or participant communications and second, the company did not follow the HIPAA rules that apply to smoking cessation surcharges. If the allegations are true, the DOL wants Macy's (not the plan) to: [1] Reimburse participants for any extra money that they paid for out-of-network services; and [2] Refund all of its tobacco surcharges, even to individuals who didn't try to go through the cessation program.... Here's what allegations against Macy's teach us about health plan details and benefits compliance[.]" (HUB International)
Ninth Circuit: Plan SMM Addressing ACA Changes Violated ERISA
"The court observed that the employer had not issued a single amended SPD or cumulative SMMs, but had issued a series of summaries (totalling 25 pages) that needed to be read in conjunction with the 2006 SPD for an individual to determine available benefits. Moreover, the court observed that the SMMs were not organized using a comprehensive table of contents[.]" [King v. Blue Cross and Blue Shield of Ill., No. 15-55880 (9th Cir. Sept. 8, 2017)] (Thomson Reuters Practical Law)
[Official Guidance] Text of IRS Information Release IR-2017-150: Tax Relief for Victims of Hurricane Irma; Additional Relief Planned
"Hurricane Irma victims in parts of Florida and elsewhere have until Jan. 31, 2018, to file certain individual and business tax returns and make certain tax payments ... This includes an additional filing extension for taxpayers with valid extensions that run out on Oct. 16, and businesses with extensions that run out on Sept. 15.... The IRS is offering this relief to any area designated by the Federal Emergency Management Agency (FEMA), as qualifying for individual assistance. Parts of Florida, Puerto Rico and the Virgin Islands are currently eligible, but taxpayers in localities added later to the disaster area, including those in other states, will automatically receive the same filing and payment relief.... [A]ffected individuals and businesses will have until Jan. 31, 2018, to file returns and pay any taxes that were originally due during this period." (Internal Revenue Service [IRS])
Beware These Carrier Contract Pitfalls
"In any standard carrier contract, whether it's for medical coverage, pharmacy coverage or any number of voluntary benefits, much of the language is standard and non-negotiable. But a small percentage of content in every contract -- typically around 10% -- is specific to your plan and the carrier and should be reviewed. How these parts are written could affect how the plan is administered and how claims are paid out. If you don't know what to watch out for, you -- or the plan members -- could be surprised." (Corporate Synergies)
Second Circuit Holds ERISA Claim for Statutory Penalties Is Barred by One-Year Statute of Limitations
"Acknowledging that it was being asked to consider, for the first time, whether section 502(c)(1) was punitive in nature (as opposed to remedial), the Second Circuit held that this section of ERISA was punitive because the amount of the fine imposed by the District Court was both discretionary and meant to punish the ERISA administrator for its failings, rather than compensate the plaintiff for any loss.... Analyzing Connecticut's limitations periods for breach of contract and unfair trade practices, the Second Circuit ... upheld the District Court's decision dismissing Plaintiff's suit for failing to meet its one-year limitations period." [Brown v. Rawlings Fin. Services, LLC, No. 16-3748 (2d Cir. Aug. 22, 2017) ] (Robinson & Cole LLP)
[Official Guidance] Text of IRS Disaster Relief Notice VI-2017-01, for Victims of Hurricane Irma in U.S. Virgin Islands
"Victims of Hurricane Irma that took place beginning on Sept. 6, 2017 in parts of U.S. Virgin Islands may qualify for tax relief from the [IRS].... Individuals who reside or have a business in the Islands of St. John and St. Thomas may qualify for tax relief.... [C]ertain deadlines falling on or after Sept. 6, 2017 and before Jan. 31, 2018, are granted additional time to file through Jan. 31, 2018." (Internal Revenue Service [IRS])
2018 Open Enrollment: Developing Your Game Plan
"It's never too late to have a post-mortem of last year's open enrollment ... Define objectives and how you plan to measure success.... Address who your audiences are and what your overall and targeted messages will be.... [S]et some quantifiable 'hard' goals based on numbers.... [U]se data analytics to help employees make smarter benefits decisions ... Communications planning also is vital to ensuring a successful open enrollment." (Society for Human Resource Management [SHRM])
Crossing the Threshold: Small Business to 'ALE'
"A business that averaged 50 or more full-time employees (including full-time equivalent employees) in 2016 is an [applicable large employer (ALE)] for reporting and penalty purposes in 2017.... If your business has crossed the threshold to ALE status, consider your vulnerability to the (nondeductible) employer penalties ... An ALE that escapes the penalty still is subject to the ACA's employer reporting requirements." (Jackson Lewis P.C.)
This Open Enrollment, Think of Employees as Shoppers
"Typically, medical, dental, and vision benefits appear first in all enrollment materials. Health savings accounts or flexible spending accounts are offered at the end of their enrollment experience and voluntary benefits may be offered through a separate site.... [An] integrated enrollment site improves the employee's experience and increases awareness and value of voluntary benefits offerings. Consider moving HSAs and FSAs after medical and follow with accident and other supplemental health policies that can be used by employees to complement their medical plan." (Mercer)
DOL Opposes UnitedHealth's Cross-Plan Offsetting Practice
"The Labor Department opposes a health insurance practice called 'cross-plan offsetting,' in which insurers like UnitedHealth reduce payments owed to medical providers for services rendered to specific patients. The reductions are meant to offset overpayments the providers previously received on account of different patients who participate in other plans insured by the same company. This practice violates [ERISA], the DOL said in a brief filed Sept. 5 in the U.S. Court of Appeals for the Eighth Circuit." (Bloomberg BNA)
2018 Open Enrollment: Active vs. Passive Benefits Election
"The consensus view among employee benefit advisors is that active open enrollment is the superior way to prod employees to make appropriate decisions about the benefits that will best suit their own -- and their families' -- needs. Active enrollment, however, requires that HR benefit managers engage directly with employees to ensure that no one inadvertently misses their opportunity to elect coverage for the new year.... The possibility of inattentive employees being left without health and other benefits -- and the outcry from those who might find themselves in this predicament -- keeps most employers on the passive enrollment track." (Society for Human Resource Management [SHRM])
[Guidance Overview] 2018 Annual Open Enrollment Is Here: Are Your Health and Welfare Plans Ready?
"[A] plan may not impose a requirement to try an intensive outpatient program before admission for inpatient treatment unless a comparable limitation also applies to medical/surgical benefits in the same classification.... if an individual loses coverage under an individual plan ... for reasons other than the failure to timely pay premiums or for cause, such individual must be afforded a 'special enrollment right' by a group health plan ... [T]he new [SBC] template revises and updates the coverage examples and provides more information about cost-sharing.... For disability benefit claims filed on or after January 1, 2018, disability benefit plans must comply with recently finalized regulations" (Trucker Huss)
Reviewing Contracts: An Essential Part of Health Plan Management
"[C]heck the principal plan terms against the plan proposal.... Self-insurance contracts take a lot more vigilance to review.... Should you terminate your plan, how will incurred-but-unpaid claims be processed? ... Generally, the TPA wants to share savings for out-of-network claims when less than the billed cost is paid, and it's important to understand how this works.... Usually the TPA retains a portion of the recovery for third-party liability and may bill costs associated with collecting these payments." (Frenkel Benefits)
Proving Loss Causation in Breach of Fiduciary Claims: The 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.)
IRS Releases Draft Instructions for 2017 Forms 1094 and 1095
"The draft instructions for the [1094-B/1095-B] Forms do not include any substantive changes that will affect completion of the forms. The draft instructions for the [1094-C/1095-C] Forms are largely unchanged, although references to transition relief available to non-calendar-year plans for certain months in 2016 have been eliminated now that this relief has expired." (Thomson Reuters / EBIA)
Don't Forget the Possibility of ACA Retaliation Claims
"[E]mployer mandate taxes that accrued in January of 2015 must be assessed by January of 2018. The statute requires that notices be provided to employers at least 60 days prior to the end of the year.... It would not be good to let the time limit to appeal an assessment expire.... [It] is against the law to retaliate against an employee for receiving a subsidy.... OSHA is the agency charged with retaliation investigations, and OSHA, unlike the IRS, is more than adequately staffed to enforce anti-retaliation requirements." (Ogletree Deakins)
Comprehensive FAQs for Employers on Hurricanes and Other Workplace Disasters
"This list of frequently asked questions was originally prepared ... in response to Hurricanes Katrina, Rita and Wilma. It has been updated several times over the course of the past 12 years, most recently in the aftermath of Hurricane Harvey striking Texas and Louisiana in August 2017, and in anticipation of Hurricane Irma striking Florida in September 2017. This article addresses many employment-related issues facing employers in the wake of hurricane-related disasters; ... in addition to federal laws, [it covers] certain state laws, especially those in the Gulf Coast area." (Fisher Phillips)
[Guidance Overview] Healthcare Reform Questions and Answers for Employers (PDF)
162-page compilation of Q&As covering all aspects of the ACA. Updated through Sept. 5, 2017. (Arthur J. Gallagher & Co.)
2018 Projected Health Insurance Exchange Coverage Map, Updated Sept. 6, 2017 (PDF)
[CMS] has posted an update to the Health Insurance Exchanges Issuer County Map. This map is of projected issuer participation on the Health Insurance Exchanges in 2018 based on the known issuer public announcements through September 6, 2017. Participation is expected to fluctuate and does not represent actual Exchange application submissions. (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
ERISA Advisory Council to Meet September 25
"[An] open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held as a teleconference on September 25, 2017.... The purpose of the open meeting is to discuss reports/recommendations for the Secretary of Labor on the issues of [1] Reducing the Burden and Increasing the Effectiveness of Mandated Disclosures with respect to Employment-Based Health Benefit Plans in the Private Sector, and [2] Mandated Disclosure for Retirement Plans -- Enhancing Effectiveness for Participants and Sponsors." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
IRS Releases Draft of 2017 Instructions for ACA Reporting Forms
"A Form 1095-C is filed for each employee, who was full-time for one or more months during the calendar year and includes details of any health care coverage offered to the employee, reported on a monthly basis. For self-insured plans, Form 1095-C must also be provided to any individuals who enrolled in qualified coverage, which may include non-full-time employees and any covered spouses and dependents." (ADP)
[Guidance Overview] Forms 1094-C and 1095-C Draft Instructions Released -- Minimal Changes But Problems Still Exist
"Most of the changes made in the draft instructions are the elimination of discussions related to the transition relief provisions that applied in previous years, but can never apply for the 2017 Forms.... This article provides a brief summary to the changes and new notes added to the draft instructions for the Forms 1094-C and 1095-C, discusses key dates, and provides a brief overview of penalties associated with the Forms. The article concludes by discussing a problem that persists related to the code 2F on line 16 of the Form 1095-C." (Accord Systems, LLC)
[Official Guidance] Text of Draft Instructions for 2017 IRS Forms 1094-C and 1095-C (PDF)
18 pages. "Several forms of transition relief were available to some employers under section 4980H for 2016. No section 4980H transition relief is available for 2017. Therefore, these instructions have been revised to remove discussion of section 4980H transition relief, and Form 1094-C has also been revised. Specifically, Form 1094-C, line 22, box C is designated 'Reserved'; Part III, column (e) is designated 'Reserved'; and the entry rows in Part III, column (e) are shaded." (Internal Revenue Service [IRS])
[Guidance Overview] Agencies Provide Retirement Plan Relief in the Wake of Hurricane Harvey (PDF)
"In addition to [retirement plan relief] ... the IRS issued a news release which extends the deadlines for filing tax returns and submitting tax payments ... [T]he DOL has released its own guidance on certain issues under Title I of ERISA -- along with a series of FAQs directed primarily to plan participants in affected areas ... [PBGC has provided] a blanket extension ... for affected persons to make PBGC premium filings ..., for certain single-employer plan termination filings, and for reportable 'post-event' notices.... Code section 139 provides that qualified disaster relief payments are not taxable to the recipient. In addition, the payments are not subject to withholding or employment taxes." (Groom Law Group)
[Official Guidance] Text of 2018 Instructions for IRS Form 1099-H: Health Coverage Tax Credit Advance Payments (PDF)
"Section 6050T requires that if you are a provider of qualified health insurance coverage ... and you receive advance payments from the Department of the Treasury on behalf of eligible recipients pursuant to section 7527 [HCTC payments], you must file Forms 1099-H to report those advance payments. You must also furnish a statement reporting that information to the eligible recipient." (Internal Revenue Service [IRS])
[Guidance Overview] IRS and DOL Provide Relief for Plan Sponsors and Participants Affected by Hurricane Harvey
"[T]he IRS issued Announcement 2017-11, which provides easier access to 401(k), 403(b) and 457(b) funds for individuals affected by Hurricane Harvey. For a list of locations, click here. On the same day, the [DOL] issued a news release giving relief to the timing rules for depositing participant contributions and loan repayments, and the requirement to issue blackout notices in the event investment trading in retirement plans was or is interrupted by Hurricane Harvey." (Seyfarth Shaw LLP)
[Guidance Overview] IRS Releases ACA Affordability Rates for 2018
"For 2018, the required contribution percentage has decreased to 9.56% (from 9.69% in 2017). This means that if an employee's share of the premium for employer-provided coverage (in 2018) is more than 9.56% of his or her household income, the coverage is not considered affordable for that employee and the ALE may be liable for a penalty if that employee obtains a premium tax credit through an Exchange." (The Wagner Law Group)
Seventh Circuit Finds ERISA Preempted State Unpaid Leave Claim
"An employee's unpaid leave claim under the Illinois Wage Payment and Collection Act was completely preempted by ERISA because the employer's leave policy was dependent on the terms of its VEBA plan ... In affirming the district court's grant of summary judgment for the employer, the appeals court found that the employee's claim did not implicate a duty that was independent of ERISA." [Studer v. Katherine Shaw Bethea Hospital, No. 16-3728 (7th Cir. Aug. 10, 2017)] (Wolters Kluwer Law & Business)
Insurance Commissioners and the Feds: Time for Some Relationship Counseling?
"The [ACA] effectively created a shotgun marriage between state insurance regulators and [HHS] who then had to provide oversight of their baby -- the individual insurance market. The relationship has been complicated since the start: the insurance market has proved to be a problem child and the federal government has not been the most reliable spouse and parent recently. Next Wednesday's Senate Health Education, Labor, and Pension (HELP) Committee hearing, Stabilizing Premiums and Helping Individuals in the Individual Insurance Market for 2018: Insurance Commissioners, with testimony from five state insurance commissioners, will provide a chance for some of the states -- the parents with de facto custody -- to make their grievances known. What can we expect to hear?" (Health Affairs)
[Discussion] IRS Enforcement of ACA Individual Penalty
"IRS permitted individuals to file 2016 tax returns without answering the ACA penalty question (so if you owed the penalty you didn't have to fess up and pay with your tax return). Have they done any follow-up with those taxpayers or does it appear nobody had to pay for 2016? I know they keep saying the penalty is still in effect but I'm wondering if enforcement has slacked off." (BenefitsLink Message Boards)
City of Houston Lifts Employee Benefits Restrictions in Wake of Harvey
"The city of Houston made a number of concessions on medical benefits for its employees, reducing barriers to health-care access during the recovery from Hurricane Harvey ... Prior authorization requirements have been waived for acute medical care and behavioral health services ... [E]mployees who utilize mail order pharmacies for generic medicine but have been displaced by flooding and presently have no place for medications to be shipped will be able to refill their prescriptions with no copayment at retailers." (Bloomberg BNA)
[Guidance Overview] Text of Draft IRS Publication 5223: General Rules and Specifications for ACA Substitute Forms 1095-A, 1094-B, 1095-B, 1094-C and 1095-C (PDF)
24 pages; August 22, 2017. "If you do not use the official IRS form to furnish statements to recipients, you must furnish an acceptable substitute statement. Information presented in substitute statements should be in a point size large enough to be easily read by recipients. To be acceptable, your substitute statement must comply with the rules in this Part. Generally, information returns may be furnished electronically with the consent of the recipient." (Internal Revenue Service [IRS])
[Official Guidance] Text of Draft Instructions for 2017 IRS Forms 1094-B and 1095-B (PDF)
8 pages, Aug. 22, 2017. "Form 1095-B is used to report certain information to the IRS and to taxpayers about individuals who are covered by minimum essential coverage and therefore aren't liable for the individual shared responsibility payment." (Internal Revenue Service [IRS])
[Guidance Overview] Agencies Provide Guidance for Plans and Participants Affected by Hurricane Harvey
"A hardship distribution is still limited to the maximum amount permitted by IRS rules but can be provided for any hardship, not just those listed in the IRS regulations, and no post-distribution contribution restrictions are required.... Plan loans can be made without following the procedural requirements imposed by the plan at the time of the loan.... The filing date for Form 5500 filings due on or after August 23, 2017 and before January 31, 2018 is automatically extended to January 31, 2018.... The DOL requests welfare plans make reasonable accommodations for participants and beneficiaries who are unable to timely file benefit claims or make COBRA elections ... Under an emergency PTO sharing plan, employees can donate some of their PTO to a PTO bank that is administered by the employer." (Haynes and Boone, LLP)
Cyber Security and Online Privacy Issues for Employee Benefit Plans
"Increasingly, data is accessed on mobile devices and data is stored using cloud-based services making it susceptible to cyber security threats. The fact that there are many different users and service providers involved in benefits administration further complicates the issue." (Butterfield Schechter LLP)
Deadline Nears for Medicare Part D Creditable/Non-Creditable Coverage Notices (PDF)
"Plan sponsors that offer prescription drug coverage must provide notices of creditable or non-creditable coverage to Medicare-eligible individuals before each year's Medicare Part D annual enrollment period -- this year, by October 14, 2017. The notice obligation is not limited to retirees and their dependents but also includes Medicare-eligible active employees and their dependents and Medicare-eligible COBRA participants and their dependents." (Conduent)
Trump Administration Slashes Funding for ACA Outreach, Assistance During Open Enrollment
"[CMS said] it will spend $10 million on promotional activities during the upcoming open enrollment period. Comparatively, CMS spent $100 million in 2016 for the 2017 open enrollment period, and a little more than $50 million the year prior. The agency will also change how the ACA's Navigator program is funded. Navigators received $62.5 million in federal grants in 2016, but will receive $36.8 million this year -- a 39% funding cut. They'll also receive funding based on their ability to meet their enrollment goals during the previous year." (FierceHealthcare)
CMS Announces Policies Related to the Navigator Program and Enrollment Education for the Upcoming Enrollment Period (PDF)
"For the upcoming Open Enrollment Period, CMS plans to spend $10 million on educational activities in order to meet the needs of new and returning enrollees.... Navigator grantees will receive funding based on their ability to meet their enrollment goals during the previous year.... In this final year of a three-year grant cycle, Navigators will be asked to assist consumers with plan selections, particularly focusing on consumers who are currently enrolled in coverage in areas where issuers have reduced or eliminated plan offerings." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
Open Enrollment for Employees: How to Get the Most Out of Your Benefits in 2018
"[S]ome employers don't include retirement benefits on the menu of available health and welfare benefit options during open enrollment season ... [Y]ou might have to take matters into your own hands when it comes to your employer-sponsored retirement plan during open enrollment season.... [E]mployees who are saving for retirement, with access to a HDHP, should consider participating in their employer's HDHP, so that they can take advantage of the HSA offered with it.... [C]onsider critical illness coverage, if offered by your employer ... [M]any employers offer incentives around open enrollment for participation in health screenings, health risk assessments, and wellness activities -- this can essentially put more money back into the employee's pocket, with the added benefit of helping the employee to better understand and manage health risks." (Fidelity)
[Guidance Overview] The Affordability Test Is More Restrictive on Employers in 2018
"[F]or the first time, the affordability threshold has decreased in 2018 all the way back to 9.56 percent. The significant drop in the affordability threshold compared to 2017 places employers who are toeing the line of the affordability threshold in danger of being subject to a potential section 4980H(b) penalty if the price of coverage is not reduced for self-only coverage." (Accord Systems, LLC)
ERISA Advisory Council Reviews Mandated Disclosures
"Recommendations have included requiring fewer disclosures and notices and making notices simpler to understand. Reduced disclosure notices would lessen the burden on plan providers and help ensure plan participants are not overloaded with confusing plan information that does not require action on their part." (Butterfield Schechter LLP)
Lessons Learned from Katrina, and Hurricane Harvey Relief Guidance to Date
"In the past some employers have permitted employees to donate their paid time off or leave to a pool that can be used by the affected employees. Donation of leave is possible as long as one carefully structures the leave donation program in compliance with existing guidance so that there is no constructive receipt of the donated leave by the donating employee.... Employers can establish a disaster assistance funds and provide certain limited assistance for qualifying expenses of their employees who live or reside in a Presidentially declared disaster area. If the payments are to qualified individuals for qualified expense, these funds can be paid to the employee without taxing the employees on the assistance as income." (Winstead PC)
[Official Guidance] DOL Issues Compliance Guidance for Employee Benefit Plans Impacted by Hurricane Harvey
"The Department is working with the IRS to provide relief regarding certain verification procedures that may be required under retirement plans with respect to plan loans to participants and beneficiaries, hardship distributions and other pension benefit distributions....

The Department recognizes that some employers and service providers acting on employers' behalf, such as payroll processing services, located in identified covered disaster areas will not be able to forward participant payments and withholdings to employee pension benefit plans within the prescribed timeframe. In such instances, the Department will not -- solely on the basis of a failure attributable to Hurricane Harvey -- seek to enforce the provisions of Title I with respect to a temporary delay in the forwarding of such payments or contributions to an employee pension benefit plan to the extent that affected employers, and service providers, act reasonably, prudently and in the interest of employees to comply as soon as practical under the circumstances....

With respect to blackout periods related to Hurricane Harvey, the Department will not allege a violation of the blackout notice requirements solely on the basis that a fiduciary did not make the required written determination....

The Department recognizes that plan participants and beneficiaries may encounter an array of problems due to the hurricane, such as difficulties meeting certain deadlines for filing benefit claims and COBRA elections. The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes."

(Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Official Guidance] Text of DOL FAQs for Participants and Beneficiaries Following Hurricane Harvey (PDF)
8 pages; 22 Q&As, including:

Health Benefit Questions: If my place of employment has closed as a result of Hurricane Harvey, am I still covered by my employer's group health plan? ... My employer's place of business is closed. I cannot locate my plan administrator. Who do I contact to file a claim for benefits, or to obtain replacement identification documents? ... Can my employer terminate or reduce my health benefits? ... My employer did not pay my insurance premium. May I pay the premium to continue my coverage? ... I am a retiree and I receive retiree health benefits from my former employer. The company was affected by the events of Hurricane Harvey. Can my retiree health benefits be terminated or changed? ... I had COBRA coverage prior to Hurricane Harvey. The location I was sending my COBRA premium to is closed. Where do I send my premium? ...

Retirement Benefit Questions: My employer's place of business is closed due to the events of Hurricane Harvey. Who should I contact to file a claim for retirement benefits or make sure that I will continue to receive my pension payments on time? ... How can I make changes in the way my 401(k) plan account is invested if it was affected by the events of Hurricane Harvey ? ... Can I get money out of my retirement plan if I need financial assistance to help me at this time? ... When must my retirement plan pay my claim for benefits? ... If I am entitled to receive benefits from my spouse's retirement plan based on the terms of a divorce or separation, what should I do to make sure my rights are protected? ... If my employer faces economic difficulties as a result of the events of Hurricane Harvey, can my employer terminate my retirement plan, and if so, what happens to my benefits? ... All of the records concerning my employment with the retirement plan sponsor and my participation in the retirement plan were destroyed as a result of the events of Hurricane Harvey. What do I do? ... Where can I get more information on my retirement benefit rights?"

(Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])

[Opinion] As Health Plans Become Less Standardized, Consumer Decision Support Tools Will Be Critical
"[C]onsumers will continue to need a portal displaying their plan options and the comparison tools that have been developing over time in the ACA marketplaces. These should include, at a minimum: [1] Total Cost Estimators -- providing customized estimates of what consumers can expect to pay on a monthly basis ... [2] Provider Directories/Network Look-Ups -- providing the ability to search for health care providers covered by a plan; [3] Formularies/Drug Look-Ups -- providing the ability to search for prescription drugs covered by a plan, and [4] Quality Ratings -- allowing consumers to compare plans based on state/federally approved quality metrics such as measures of patient safety and clinical effectiveness." (The Commonwealth Fund)
[Guidance Overview] CMS Details 2018 Open Enrollment Period Procedures
"[U]nder the market stabilization rule, insurers may for the first time, to the extent state law permits, apply payments for new enrollees to past-due premiums owed to the insurer or an insurer in the same control group.... Insurers will be asked in October to reach out to individuals in danger of losing their premium tax credits and cost-sharing reductions.... CMS will notify insurers when their current enrollees switch to another insurer on a daily basis from November 3 to December 15 ... Auto-enrollment is invisible to consumers until December 16, and insurers are not supposed to tell consumers they are auto-enrolled before that date, but rather urge them to enroll actively." (Timothy Jost, in Health Affairs)
[Official Guidance] Text of IRS Disaster Relief Notice TX-2017-09, for Victims of Hurricane Harvey in Texas
"Individuals who reside or have a business in Aransas, Bee, Brazoria, Calhoun, Chambers, Fort Bend, Galveston, Goliad, Harris, Jackson, Kleberg, Liberty, Matagorda, Nueces, Refugio, San Patricio, Victoria, and Wharton Counties may qualify for tax relief.... [C]ertain deadlines falling on or after Aug. 23, 2017 and before Jan. 31, 2018, are granted additional time to file through Jan. 31, 2018." (Internal Revenue Service [IRS])

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