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Health & Welfare Plans Newsletter

September 8, 2010

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Thursday, September 16, 2010
On August 23, the Department of Labor and Health and Human Services released the new
model forms and interim guidance on the federal external review process under PPACA.
Register now for this Webcast and get up-to-date on the new guidance.

[Guidance Overview]
HHS's Proposed HITECH/HIPAA Privacy, Security and Enforcement Guidance
Excerpt: "HHS has requested comments on the proposed HITECH regulations on or before September 13, 2010. Once the final regulations are issued, HHS has indicated that covered entities will generally have 180 days to comply with the new rules. HHS also indicated that there would be no additional delay of the application of the regulations, once finalized, to small health plans."
(McDermott Will & Emery)

[Guidance Overview]
Reimbursing OTC Drugs and Applying for Mini-Med Waivers
Excerpt: "On September 3, 2010, the Internal Revenue Service (IRS) and the Office of Consumer Information and Insurance Oversight (OCIIO) independently announced the release of additional Affordable Care Act guidance."
(Kilpatrick Stockton LLP)

[Guidance Overview]
HHS Guidance on Annual Dollar Limit Waivers for Limited Benefit Health Plans or 'Mini Med' Plans
Excerpt: "The waiver process is available for group health plans and health insurance issuers if the plan or coverage was offered prior to September 23, 2010 for the plan or policy year beginning between September 23, 2010 and September 23, 2011."
(Hewitt Associates)

[Guidance Overview]
New IRS Guidance Regarding Reimbursement of Over-the-Counter Medicine and Drugs (PDF)
3 pages.
(American Benefits Council)

[Guidance Overview]
IRS Draft of Form for Calculating New Health Care Tax Credit
Excerpt: "The Internal Revenue Service has released a draft version of the form that small businesses and tax-exempt organizations will use to calculate the small business health care tax credit when they file income tax returns next year. The IRS has posted a draft of Form 8941 on its Web site [at]."

[Guidance Overview]
The ERISA Litigation Newsletter, September 2010
Excerpt: "[The] focus this month is on the Third Circuit's decision in In re Visteon, which held that Section 1114 of the Bankrup.tcy Code applies to all retiree benefits -- vested and unvested -- and, as a result, a plan must continue to pay unvested retiree benefits during the pendency of bankrup.tcy unless the bankrup.tcy court approves otherwise."
(Proskauer Rose LLP)

Taking Control of Healthcare Costs in the Workplace
Excerpt: "Employer healthcare expenses are on the rise, with employees shouldering more of the costs. Experts say the trend is likely to continue, and HR leaders must play a key role in managing healthcare costs and communicating plan changes to the workforce."
(Human Resource Executive Online)

A World Without Open Enrollment for Health Benefits?
Excerpt: "The healthcare-reform law doesn't go into full effect until 2014, but many HR leaders believe that one of the results may well be the loss of employer-provided heath benefits. And that loss will loosen one of the links employers have with their top talent."
(Human Resource Executive Online)

Can an Employee Exposed to Pandemic Flu Take FMLA Leave?
Excerpt: "Not necessarily. FMLA protection requires that the employee experience a serious health condition -- compliance with the employer's swine flu policy is not enough."
(Wolters Kluwer)

Vegging Out at Work in Company Gardens
Excerpt: "More companies are ripping out manicured lawns to create on-site vegetable gardens as healthy perks or volunteer opportunities for employees."
(Star Tribune)

New York Employers Must Provide Funeral and Bereavement Leave to Employees in Same-S.ex Relationships (PDF)
1 page. The law is slated to become effective October 30, 2010.
(Nixon Peabody LLP)

New DOL Guidance on Maintaining Coverage After Expiration of COBRA Premium Subsidy Period
Excerpt: "EBIA Comment: The earliest subsidy periods started expiring in May 2010 and, with no further Congressional extension of the rules in sight, the final individuals will exit the program in August 2011."
(Employee Benefits Institute of America)

HHS's New Secure Website for Early Retiree Reinsurance Program Applicants and Provides List of Approved Applicants
Excerpt: "Although HHS is still accepting applications, it is unclear whether the $5 billion appropriated for this program will last until 2014, so we encourage interested plan sponsors to quickly apply for approval and to submit their reimbursement requests as soon as they can."
(Employee Benefits Institute of America)

HHS Guidance on Waivers for Health Plan Limits
Excerpt: "Under current restrictions, annual limits for plans beginning between Sept. 23 and Sept. 22, 2011 cannot be lower than $750,000 . . . ."
(Henry J. Kaiser Family Foundation)

Audio and Transcript: Dealing with Health Reform Myths
Excerpt: "As the Obama administration continues to implement the health care overhaul law, some myths - including a requirement that workers must pay taxes on their health insurance next year - have begun to circulate."
(Henry J. Kaiser Family Foundation)

Paid Time Off for Volunteering
Excerpt: "Corporations that provide employees paid time off to volunteer typically pursue one of two routes: setting a designated volunteer day or providing a block of paid hours annually. Which approach works best depends upon the employees involved, as well as what company officials want to achieve through the volunteer initiative, experts say."
(Workforce Management; free registration required)

The Big Small Business Health Insurance Problem under the New Law
Excerpt: "One part of the new law is a set of tax credits and penalties designed to encourage employers to provide insurance. The problem is that for most young small businesses, it won't work. That's the conclusion I reached, based on research I conducted with Alicia Robb of the Ewing Marion Kauffman Foundation."
(Bloomberg Businessweek)

Uwe Reinhardt on the Details of the Medical Loss Ratio
Excerpt: "The recently passed Affordable Care Act requires heath insurance issuers to use at least some minimum fraction of revenue from the premiums it receives on medical services. While the idea might sound straightforward, this fraction, known as the 'medical-loss ratio,' is open to all sorts of creative arithmetic, and you can bet that interest groups from every corner are trying to get the math to add up in their favor."
(Physicians for a National Health Program)

Benefits in General; Executive Compensation

[Guidance Overview]
Corporate Governance, Executive Compensation and Investor Protection Under Dodd-Frank
Excerpt: "Beginning with proxy statements for shareholder meetings to be held on or after July 22, 2011, companies are required to disclose whether the compensation committee retained or obtained the advice of a compensation consultant, and whether the compensation consultant's work raised any conflicts of interest and, if so, the nature of the conflict and how the conflict was (or is being) addressed."
(Bond, Schoeneck & King, PLLC)

[Guidance Overview]
Third Circuit Upholds Lower Court Decision Granting Benefits Under a Program Providing Separation Benefits
Excerpt: "The Business Exception to coverage under the Displacement Program has two primary requirements: (1) the contract of sale must provide for employment of the employee by another employer, and (2) MFC must determine that the position to be provided to the affected employee is comparable to the position the employee held before the sale, and in particular, that it 'initially' provides base salary and incentive compensation opportunities which, in the aggregate, are reasonably similar to those that were provided by the MFC subsidiary."
(Stanley D. Baum of Fellheimer & Eichen LLP)

New Jersey Governor Proposes More Changes to State Workers' Pensions and Benefits
Excerpt: "Christie offered a broad outline but few specifics on his upcoming proposals, except for indicating -- in response to one of about a dozen audience questions -- that one bill would bar retired public workers from receiving a disability pension while working at another job seemingly requiring the same level of exertion."

Webcasts and Conferences

2010 SPARK Forum
in Florida on November 7, 2010
presented by SPARK Institute

How to Avoid Liability in a Post 408b-2 World
in California on September 21, 2010
presented by Western Pension & Benefits Conference, San Diego Chapter

Regulatory and Legislative Changes
in California on September 16, 2010
presented by Western Pension & Benefits Conference - Orange County Chapter

Press Releases

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for Trust Company of Illinois
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for J.P. Morgan
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for RSM McGladrey, Inc.
in MD

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