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August 29, 2006
Today's sponsor: Benefit Software Inc.

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(Please visit our sponsors. We try to make sure their products and services will be of interest to you. Thanks! --Editor)

Limits on Limited Medical-Leave Policies
Excerpt: "There are many state and federal statutes that provide for specific types of leave for medical reasons, and typically, the legislation creating such rights expressly provides that the leave of absence need only be granted for a limited duration. [Originally published Autumn 2005]" (Employment Relations Today via Kilpatrick Stockton LLP)

HHS Views on PHI Disclosures for Fraud Sanctions, Wellness Programs, and Electronic Health Records
Excerpt: "[Highlights of t]he American Bar Association's Joint Committee on Employee Benefits . . . report of its annual question and answer session with HHS representatives." (Employee Benefits Institute of America Inc.)

Executive Order Requires Health Care Price and Quality Information for Consumers (PDF)
2 pages. Excerpt: "Federally administered health care programs affected by the order include Medicare, the Federal Employee Health Benefits Plan, TRICARE, and the Veterans Administration health system. The order does not cover Medicaid or the State Children's Health Insurance Program." (Powell Goldstein LLP)

No Deferential Review Where SPD and Certificate, but Not Policy, Grant Discretion to Insurer
Excerpt: "EBIA Comment: The standard of review in an ERISA benefits case can have a major impact on the outcome, making it critical to recognize the role played by plan language in dictating which standard will apply. The courts require no particular 'magic words,' but plan insurers can face difficult challenges in this area." (Employee Benefits Institute of America Inc.)

Reduce Exposure to Lawsuits by Employees with Family Responsibilities
Excerpt: "The first-ever study of its kind found a dramatic increase in lawsuits charging employers with discriminating against workers with family care-giving responsibilities. . . . Even more troubling for employers: According to the research, conducted by the Center for WorkLife Law at the University of California Hastings College of the Law, plaintiffs have a significantly higher chance of winning such cases." (Human Resource Executive Online)

Federal Court Finds Insurer's Surveillance Did Not Justify Termination of ERISA Disability Claim
Excerpt: "The court ordered Unum to pay . . . past-due benefits and reinstate . . . ongoing benefits. The court dismissed Unum's counterclaim to recover an alleged overpayment of benefits resulting from [the] receipt of Social Security disability benefits. The court concluded that Unum was impermissibly seeking legal relief, rather than equitable relief, under ERISA." (ERISA on the web; posted by John Wood)

Fifth Circuit Rejects ERISA Preemption Challenge to State Assignment of Benefits Law
Excerpt: "EBIA Comment: As the Fifth Circuit indicated, there are still no clear answers in what one judge called the 'Serbonian bog' (a deceptively marshy tract in which whole armies could be lost) of ERISA preemption. The court acknowledged that both the Eighth and Tenth Circuits reached the opposite conclusion in cases decided much earlier involving similar assignment laws." (Employee Benefits Institute of America Inc.)

Court Rules FMLA Job Protection Not Absolute
Excerpt: "A federal appellate court has ruled that the Family and Medical Leave Act (FMLA) does not provide an employee on approved leave with an absolute right to be rehired for his old position." (PLANSPONSOR.com; one-time registration required)

Employer Apparently Learned Lesson from Microsoft and Wins COBRA Case
Excerpt: "The increased use of independent contractors also brings an increased risk of benefit-related lawsuits. An employer recently prevailed in such a dispute through careful plan design, in light of the famous Vizcaino v. Microsoft case decided several years ago." (Infinisource, Inc.)

Employer's Foul Play Not Excused by Statute of Limitations
Excerpt: "Failing to offer COBRA coverage. Falsely notifying the insurance carrier about COBRA eligibility. Reneging on a promise to a state insurance division after its investigation. Normally, it is three strikes and you're out, but an employer recently tried to escape liability for these alleged actions because of one of COBRA's gray areas: the statute of limitations." (Infinisource, Inc.)

Commentary: Eleventh Circuit Relies on Sereboff in Two Plan Reimbursement Cases
Excerpt: "What type of subrogation provision in a health plan can be enforced against a plan participant under the Supreme Court's recent ruling in Sereboff? . . . . The Eleventh Circuit in two recent cases--Popowski v. Parrott and BlueCross BlueShield v. Carillo (combined into one opinion)--interpreted Sereboff and held that one type of reimbursement/subrogation provision could be enforced while another could not." (Attorney B. Janell Grenier via BenefitsBlog.com)

Blue Cross to Extend Health Coverage to Age 30 for Children on Parent's Policy
Excerpt: "Blue Cross Blue Shield of Arizona [announced yesterday] that it will cover children through age 29 on some policies. The extension, which is effective immediately, is the first of its kind in the state and part of a growing national trend to offer insurance coverage for more young adults and reduce the number of the uninsured." (The Arizona Republic)

What Would Lenin Do to Shore Up Our Dysfunctional Employer-Based Health Care System?
Excerpt: "Rather than trying to shore up our employer-based system, [progressives] say, we should seek to capitalize on that system's mounting woes to build support for replacing it with national health insurance. Call it the Leninist road to universal health care -- things have to get worse before they get better." (Web Exclusive to the Physicians for a National Health Program)

State Attempts to Solve Health Care Crisis Threaten Nationwide Uniformity of Large Employer Plans (PDF)
2 pages. Excerpt: "[U]ntil a national solution relieves the political pressure that is driving state and local activity, employers may be forced to resort to the courts on a case-by-case basis to ensure the protection of the national uniformity of their benefit plans that ERISA was intended to secure." (HR Policy Association)

Court Rules on Severance Benefits Based on Employee's Withdrawal of Pending EEOC Charge (PDF)
4 pages. Excerpt: "[T]he decision in EEOC v. Lockheed Martin Corporation illustrates that employers must pay careful attention to release language in their form severance agreements and must avoid conditioning severance and other employment benefits on an employee's waiver of his or her right to engage in protected activity under federal law." (Alston & Bird LLP)

Employer Involvement Takes Voluntary Plan Out of Safe Harbor
Excerpt: "EBIA Comment: This opinion provides a nice overview of what some other courts have found to be important in determining whether an employer was so involved with a voluntary plan that the plan could not qualify for the voluntary plan safe harbor exception. It also illustrates that sometimes an insurer (or a plan sponsor) would rather have a plan be subject to ERISA, in order to avoid state-law claims that could result in greater liability than would ERISA claims." (Employee Benefits Institute of America Inc.)


Links to Items on Executive Comp, Benefits in General

Guidance in 2006-2007 Will Affect Cafeteria Plans, Health Plans, Fringe Benefits, and 401(k) Plans
Excerpt: "The Department of the Treasury and the IRS have issued their 2006-2007 Priority Guidance Plan, which lists regulations and other guidance under development. [The target page notes] some significant items affecting cafeteria plans, health plans, fringe benefits, and 401(k) plans . . . ." (Employee Benefits Institute of America Inc.)

Corrected Link: Attorney Files Comments Regarding 'Specified Employees' Under Section 409A
Excerpt: "These comments address certain aspects of the Proposed Regulations concerning the mandatory six-month delay in commencing payments of deferred compensation to 'specified employees,' and specifically, the definition of 'specified employee.'" (Linda Wilkins of Locke Liddell & Sapp LLP)

Comments on 'The Risk Pool' by Malcolm Gladwell
Excerpt: "'(UAW president Walter) Reuther and his brain trust had a theory of capitalism,' Nelson Lichtenstein, the Reuther biographer, says. 'It was: If we force G.M. to pay extra (for employee benefits), we can create an incentive for G.M. to join our side (in broadly collectivizing risk beyond individual employers).'" (The New Yorker via Physicians for a National Health Program)

It's Not the Dependency Ratio, Stupid -- Another Take on Gladwell's 'The Risk Pool'
Excerpt: "Back in the late 1940s, The New Yorker wants us to know, Richard Gosser, president of a United Auto Workers local in Toledo, Ohio, wanted to set up a union pension plan for the workers. Ten cents an hour was all it would cost to give the workers a decent retirement, writes Malcolm Gladwell in 'The Risk Pool.'" (The American Thinker)


Newly Posted Events
(Post Yours!)

Benefits Management Forum & Expo
in Illinois on September 17, 2006
presented by SourceMedia

Consumerism in Health Care: Exploring New Cost Saving Models
in District of Columbia on September 26, 2006
presented by Capital Chapter ISCEBS

Employee Benefit Adviser Summit
in Illinois on September 17, 2006
presented by SourceMedia

Free Seminar on Voluntary Fiduciary Correction Compliance Program
in New York on September 29, 2006
presented by U.S. Department of Labor, Employee Benefits Security Administration (EBSA)

Journey deep into the world of IRAs
in Louisiana on September 12, 2006
presented by Wolters Kluwer Financial Services

Managing Pregnant Employees: Sidestep ADA, FMLA, and PDA Pitfalls
Nationwide on September 12, 2006
presented by HRTrainingCenter.com


Newly Posted or Renewed Job Openings
Post a Help Wanted Ad

Design Analyst (Insurance/Benefits)
for Clark Consulting
in TX

QDRO Determination Services Manager
for Vanguard
in PA

Relationship Manager
for Morningstar Associates, LLC.
in IL

401k/DC Administrator
for Pencor, Inc.
in FL

Installation Administrator
for Transamerica Retirement Services
in CA

Partner Compensation Manager
for Hogan & Hartson
in DC

Client Service Manager
for Merrill Lynch Retirement Group
in CO

Regional Vice President - Southern California
for BISYS
in CA

Sales Support Advisor, Sales and Broker Support
for Paychex, Inc.
in NY

Sr. Underwriter (Group Employee Benefits Division)
for The Protector Group Insurance Agency, Inc.
in MA




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