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Health & Welfare Plans Newsletter

December 13, 2010

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[Official Guidance]
Text of Additional HHS Guidance on Sale of Mini-Med Plans (PDF)
3 pages. Excerpt: "The purpose of this supplemental guidance is to: (1) clarify that waivers of annual limit restrictions . . . generally apply only to policies already in place before September 23, 2010; and (2) specify two limited circumstances under which issuers in the group and individual markets that have obtained a waiver of the annual limit requirement for certain policies may sell new policies that do not comply with annual limit restrictions under the . . . waiver authority."
(U.S. Department of Health & Human Services)

[Official Guidance]
HHS Fact Sheet on Model Notice to Participants in Mini-Med Plans
Excerpt: "The consumer notice must include the dollar amount of the annual limit along with a description of the plan benefits to which the limit applies. This notice must be prominently displayed in clear, conspicuous 14-point bold type as a part of any informational or education materials, as well as in plan or policy documents provided to enrollees."
(U.S. Department of Health & Human Services)

[Official Guidance]
Text of New HHS Model Notice to Participants in Mini-Med Plans (PDF)
3 pages. Excerpt: "For plans or issuers that have already been approved for a waiver for plan or policy years that begin before February 1, 2011, or that will receive approvals for plan or policy years that begin before February 1, 2011, the notice must be provided to current and eligible participants and subscribers within 60 days from the date of issuance of this guidance."
(U.S. Department of Health & Human Services)

[Guidance Overview]
Additional HHS Guidance on Waivers of the Annual Limit Requirement, Including Model Notice Language
Excerpt: "Most notably, the new guidance provides model language and imposes deadlines for the participant notices required as a condition of obtaining a waiver (most plans and insurers that have already obtained waivers will have 60 days to provide required notices)."
(Employee Benefits Institute of America)

[Guidance Overview]
Impact of the Affordable Care Act on Dental and Vision Benefits (PDF)
3 pages. 'Action steps' described for sponsors of plans that provide dental and/or vision coverage are: (1) Review coverage and claims administration, consider plan design changes, remove the maximums on pediatric dental benefits, or change from a self-insured to insured plan; (2) Amend dental and vision plan documents, including summary plan descriptions; and (3) Draft and design material to explain any dental/vision plan changes to participants.

[Guidance Overview]
HHS's OCR Officials Provide Informal Views on HIPAA Audits, Business Associate Agreements, Breach Notification, and More
Excerpt: "The Joint Committee on Employee Benefits (JCEB) of the American Bar Association has reported on its May 2010 Q&A session with officials from HHS's Office for Civil Rights (OCR). Highlights of the session include the following informal, nonbinding remarks regarding HIPAA privacy and security issues: . . . ."
(Employee Benefits Institute of America)

[Guidance Overview]
Increase of 2.5 Cents in 2011 Mileage Rate for Transportation to Obtain Medical Care or as Part of Deductible Moving Expenses
Excerpt: "To simplify administration, some employers' health FSAs or HRAs exclude medical transportation expenses from the list of reimbursable items; if not excluded, such expenses may be reimbursed by health FSAs or HRAs at the 19 cents per mile rate for 2011. HSA account holders can also choose to use the standard mileage rate to calculate the tax-free distribution that they can take for medical transportation expenses that meet the Code Section 213 definition of medical care.
(Employee Benefits Institute of America)

[Guidance Overview]
New Rules on Paying for Over-the-Counter Medications
Excerpt: "This [article discusses] the Affordable Care Act provision that reimbursement for over-the-counter (OTC) medicines by a health plan be limited to those that are prescribed. The requirement takes effect on January 1, 2011, and applies to expenses incurred on or after that date."

[Guidance Overview]
Employer Can Require Compliance with Call-In Policy, Even During FMLA Leave.
Excerpt: "FMLA regulations specifically provide that an employer may require an employee on FMLA leave to 'report periodically on the employee's status and intent to return to work.' Thompson did not dispute that she failed to comply with the call-in policy, but argues that she would not have been terminated if she hadn't taken FMLA leave. The Eighth Circuit held that to the contrary, Thompson's repeated violations of the company's policy were not directly related to any particular FMLA leave but to her failure to report her own absences as required and, therefore, summary judgment in the company's favor was appropriate."
(Ogletree, Deakins, Nash, Smoak & Stewart PC)

[Guidance Overview]
Another Round of IRS Guidance on Small Business Health Care Tax Credit
Excerpt: "The new guidance covers a broad range of issues, but the transition relief for applying the uniformity requirements is particularly important because it provides additional ways for small employers to meet the requirements for a qualifying arrangement. The notice and FAQs make clear that for tax years beginning in 2010, an employer can satisfy the requirements for a qualifying arrangement by using either the new transition rules in this notice or the rule previously provided in Notice 2010-44 . . . ."
(Employee Benefits Institute of America)

1.5 Mil.lion in Mini-Med Plans to Learn Their Health Insurance Is Below Standard
Excerpt: "At least 1.5 mil.lion people will soon receive notices from employers or insurers that their health plans fall short of meeting a key standard in the new health overhaul law -- and by how much."

Firms Raising The Stakes to Counter 'Ferris Bueller' Sick Days
Excerpt: "Kronos, a workforce productivity firm in Chelmsford, Mass., recently found that 57 percent of U.S. salaried employees take sick days when they're not really sick -- a nearly 20 percent increase from statistics gathered between 2006 and 2008."

Employers Fret Over Healthcare Changes
Excerpt: "Big employers faced with incorporating the first round of health-care changes next month are grappling with how to comply with the long list of new rules."
(The Wall Street Journal)

Firms Working to Comply with New Health Law
Excerpt: "Big employers faced with incorporating the first round of health-care changes next month are grappling with how to comply with the long list of new rules. Many companies are hiring consultants to help sort though the mountain of new mandates, which include extending dependent coverage to children up to age 26, and may eventually result in covering more employees. Some are also considering changes to their plans -- including pushing costs to workers."
(The Wall Street Journal)

Consumers, Employers and Insurers Work to Incorporate Reform's New Rules
Excerpt: "[A] mechanism in the new health care law [is] designed to give insurance companies pause before proposing such large increases. Under the law, Washington won't be able to block big increases, but it will work with states to conduct annual reviews of increases that are considered 'unreasonable.' And the federal government gets to define what's unreasonable."
(Henry J. Kaiser Family Foundation)

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Benefits in General; Executive Compensation

[Guidance Overview]
Code Section 409A Documentation Correction Program -- Update Reflecting IRS Modifications
Excerpt: "[T]he service recipient is no longer required to provide the information statement to the service provider, although the service recipient must attach the information statement to its tax return with respect to the corrections. This additional reporting relief should facilitate corrections under § XI of the Notice 2010-6. We urge employers to consider whether they have any section 409A document corrections that should be made in 2010 in order to benefit from the more favorable rules in Notice 2010-6 for corrections in 2010."
(Miller Chevalier)

[Guidance Overview]
409A Compliance: IRS in a Giving Mood
Excerpt: "Last January, IRS Notice 2010-6 provided a list of voluntary plan document 'fixes' for which a grace period without penalty until December 31, 2010 was given. Now some additional corrections may be made and one of the previously permitted corrections can be delayed until December 31, 2012. "
(Nelson Mullins Riley & Scarborough, LLP)

[Guidance Overview]
Provisions in The Senate's Tax Cut Extension Bill
Excerpt: "Other expired and expiring provisions that would be extended through 2011 by the bill include: . . . IRC § 132 parity for exclusion from income for employer-provided mass transit passes and parking benefits . . . . IRC § 408(d)(8) allowance for tax-free distributions from individual retirement plans for charitable purposes."
(Journal of Accountancy)

Proskauer Rose's ERISA Litigation Newsletter, December 2010 Issue
Excerpt: "The Supreme Court is expected to rule in Spring 2011 in the case of CIGNA Corp. v. Amara. As the authors explain below, depending on the breadth of the Supreme Court's ruling, the decision could have widespread implications on the sustainability of a large variety of claims under ERISA that are premised on allegations of faulty communications."
(Proskauer Rose LLP)

Press Releases

Job Tenure for U.S. Workers Rises Slightly, Now Just Over 5 Years
Employee Benefit Research Institute (EBRI)

Newly Posted Employee Benefits Jobs

Trust/Fund Team Leader
for Huntington National Bank
in OH

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for The Standard
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Senior Pension Fellow
for American Academy of Actuaries
in DC

Employee Education Consultant
for PNC Bank, N.A.
in PA

Attorney -- Employee Benefits and Executive Compensation
for Najjar Employment Law Group, PC
in MA

Account Manager
for Benefit Administration, Inc.
in WI

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