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Health & Welfare Plans Newsletter

February 25, 2010

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[Guidance Overview]
Equitable Liens in Restitution: An Alternative Under ERISA Section 502(a)(3)?
Excerpt: "The Sixth Circuit's unpublished opinion in Werner v. Primax Recoveries touches on an interesting issue regarding the nature of 'equitable liens by agreement' as distinguished from 'equitable liens in restitution' and the scope of ERISA Section 502(a)(3)."
(Roy Harmon III via Health Plan Law)

House Votes to Strip Insurers' Antitrust Exemption
Excerpt: "The House voted Wednesday -- by a broad bipartisan majority of 406-19 -- to repeal health insurers' exemption from federal antitrust laws . . . . Despite siding with Democrats, 'Republican lawmakers complained . . . that the legislation passed Wednesday was largely symbolic and would have little real impact since states already regulate health insurers.' Democrats have argued that repealing the exemption would make the industry more competitive . . . ."
(Kaiser Family Foundation)

What the Antitrust Exemption for Health Insurers Means
Excerpt: "Proponents say that the legislation would spur competition among insurers and bring down costs for consumers. Reps. Tom Perriello, D-Va., and Betsy Markey, D-Colo., who are sponsoring the bill, said in a press release it would 'end special treatment for the insurance industry that allows them to fix prices, collude with each other, and set their own markets without fear of being investigated.'"
(Kaiser Health News via National Public Radio)

Milwaukee, Wisconsin, Paid Sick Leave Case Referred to State Supreme Court
Excerpt: "On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee's paid sick leave mandate."
(Wolters Kluwer)

Who Would Be Hurt the Most by a Failure to Enact Comprehensive Health Reforms?
Excerpt: "This brief describes the groups with the most to lose if comprehensive health care reform is not enacted -- people who either lack coverage today or who are required to pay the most for health insurance and medical care. These include the self-employed, those working for small employers, those with health problems, older working-age adults and early retirees, the low-incomes, and others without access to employer-based insurance."
(Urban Institute)

Hospital-Physician Market Power: Unchecked Provider Clout in California Foreshadows Challenges to Health Reform
Excerpt: "Faced with declining payment rates, California providers have implemented various strategies that have strengthened their leverage in negotiating prices with private health plans. When negotiating together, hospitals and physicians enhance their already significant bargaining clout. California's experience is a cautionary tale for national health reform: It suggests that proposals to promote integrated care through models such as accountable care organizations (ACOs) could lead to higher rates for private payers. Because antitrust policy has proved ineffective in curbing most provider strategies that capitalize on providers' market power to win higher payments, policy makers need to consider approaches including price caps and all-payer rate setting."
(Health Affairs)

Findings from ERIC Survey on Health Care Reform Legislation (PDF)
7 pages. Excerpt: "The ERISA Industry Committee ('ERIC') recently conducted a survey of its membership to better understand their priorities for health care reform. The survey . . . found that an overwhelming majority (87%) of ERIC members who responded favor passage of some form of health care reform. . . . The vast majority of respondents (73%) would support a slimmed down approach, while only 14% of respondents favor a comprehensive bill like those that have stalled in the wake of the Massachusetts special election."
(The ERISA Industry Committee)

Promoting Financial Protection in the Event of an Employee's Disability
Excerpt: "Principal Financial Group Inc. in Des Moines, Iowa noted that more than half of new sales last year included a combination of employer-paid and voluntary benefits, with fewer than 100 of the 60,000 company requests for benefit changes involving people switching from employer-paid benefits entirely to voluntary benefit programs."
(Employee Benefit Adviser; free registration required)

Not Hiring Smokers Is Discriminatory, Say Groups: It Could Lead to Bans Against Other Legal Behavior, They Say
Excerpt: "With health insurance costs continuing to climb when employers are also being squeezed by a recession, smokers may be just the first targets of insurance-driven hiring policies, said Mary White, a professor of ethics at Wright State's Boonshoft School of Medicine."
(Cox Ohio Publishing)

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Executive Compensation; Benefits in General

[Guidance Overview]
Action May Be Required to Preserve Executive Compensation Deductions
Excerpt: "During the current proxy season, compensation committees of public companies will want to take into account the new position of the IRS regarding the deductibility of performance bonuses paid upon retirement or termination of employment. Committees should review their incentive pay plans to determine whether these plans need to be restructured to preserve the deductibility of performance-based bonuses before being put before shareholders."
(Pillsbury Winthrop Shaw Pittman LLP)

Employee Benefits Developments, February 2010
Excerpt: "A brief look at developments in Employee Benefits law from January and February 2010, including cases, rulings, and opinions."
(Hodgson Russ LLP)

2010 Top Five Total Rewards Priorities Survey
Excerpt: "The 16th annual 'Top Five Total Priority Rewards Priorities' survey, sponsored jointly by Deloitte Consulting LLP and the International Society of Certified Employee Benefit Specialists, clearly underscores the impact of the financial crisis at both the employer level and the employee level. Motivated by concerns related to financial and job security, employees are getting their financial houses in order while increasingly participating in wellness and disease management programs. Likewise, employers are stepping up emphasis on such programs in an effort to combat rising healthcare costs year after year."
(Deloitte Development LLC.)

SEC Delays Plan to Adopt International Accounting Standards
Excerpt: "The U.S. Securities and Exchange Commission is grappling with how to move to one set of high-quality, globally accepted accounting standards. Under the previous plan, the SEC would have allowed U.S. companies to use the international rules as early as 2014. But industry and investors told the SEC that U.S. companies would need about four to five years to implement the changes successfully, thus pushing the date out to 2015."
(Business Insurance)

The Truth About Recent Attacks on the Independent Contractor Classification
Excerpt: "[Many recent] articles note that misclassification deprives workers of rights and benefits enjoyed by employees, while also depriving governments of much needed tax revenues. However, these articles are largely biased and inaccurate, containing incorrect statements about the laws relating to independent contractors, misrepresenting the motivations of employers, and ignoring the role that workers themselves sometimes play in how they are classified."
(Littler Mendelson P.C.)

Press Releases

ACLI Responds To Administration's Proposed Annuity Tax
American Council of Life Insurers

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