BenefitsLink Health & Welfare Plans Newsletter for December 23, 2010

[Official Guidance]
Text of FAQs About Affordable Care Act Implementation Part V and Mental Health Parity Implementation
Among the items covered by the FAQs: automatic enrollment in a group health plan (prescribed by ACA for employers with more than 200 full-time employees) will not be required until regulations are issued; the requirement that 60 days' notice be provided before a material modification is made to a group health plan will not apply until guidance is issued about the ACA's requirement of a summary of benefits and coverage; an example is provided that illustrates how a co-payment requirement can be waived for persons under age 19 despite the new requirement that benefits for dependent children not vary due to age except for children over 26, because the age 19 waiver is available to employees and spouses also covered by the plan; clarifies that small employers (i.e., fewer than 50 employees) still are exempt from the mental health coverage parity requirements despite changes to the definition of small employer made under the Affordable Care Act; and clarifies that the nondiscrimination rules under HIPAA for wellness programs do not apply to a program operated as an employment policy separate from the employer's group health plan, such as payment for gym memberships.
(U.S. Employee Benefits Security Administration)

[Official Guidance]
Text of IRS Notice 2011-1: Delay of Nondiscrimination Rules for Insured Group Health Plans (PDF)
7 pages. Excerpt: "Because regulatory guidance is essential to the operation of the statutory provisions, the [IRS, DOL and HHS] have determined that compliance with [the nondiscrimination requirements of] § 2716 [of the Affordable Care Act] should not be required (and thus, any sanctions for failure to comply do not apply) until after regulations or other administrative guidance of general applicability has been issued under § 2716. In order to provide insured group health plan sponsors time to implement any changes required as a result of the [upcoming] regulations or other guidance, the [IRS, DOL and HHS] anticipate that the guidance will not apply until plan years beginning a specified period after issuance. Before the beginning of those plan years, an insured group health plan sponsor will not be required to file IRS Form 8928 . . . ."
(U.S. Internal Revenue Service)

[Official Guidance]
Text of Proposed HHS Regulation on Disclosure of Proposed Health Insurance Premium Increases, as Published in Federal Register (PDF)
26 pages. Excerpt: "The proposed rule would establish a rate review program to ensure that all rate increases that meet or exceed an established threshold are reviewed by a State or HHS to determine whether the rate increases are unreasonable."
(U.S. Department of Health & Human Services)

[Official Guidance]
Text of IRS Rev. Proc. 2011-12: Fringe Benefit Exclusion for Qualified Parking to Stay at $230 for 2011 (PDF)
Excerpt: "For taxable years beginning in 2011, the monthly limitation under § 132(f)(2)(A), regarding the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any transit pass, and under § 132(f)(2)(B), regarding the fringe benefit exclusion amount for qualified parking, is $230."
(U.S. Internal Revenue Service)

[Guidance Overview]
IRS Pushes Back PPACA Nondiscrimination Compliance Date
Excerpt: "Specifically, Notice 2011-1 states that [Treasury and the IRS, as well as DOL and HHS], have determined that compliance with the non-discrimination requirements of § 2716 [of the Affordable Care Act] should not be required (and thus, any sanctions for failure to comply do not apply) until after regulations or other administrative guidance of general applicability has been issued under § 2716."
(PLANSPONSOR.COM)

[Guidance Overview]
$5,880 Fine Imposed Against Health Care Company for Delay in Furnishing Summary Plan Description to Plan Beneficiary
Excerpt: "[The court said that the company] 'should have been aware of ERISA's requirements for SPDs. Under the facts and circumstances of this case, the court finds that a penalty is appropriate, but that its magnitude should be modest, amounting to ten dollars per day.'"
(PLANSPONSOR.COM)

[Guidance Overview]
Health Care Reform Implementation Timeline
Excerpt: "In 2011, several key provisions of the health care reform law will take effect that will affect Medicare, Medicaid, employers, and private insurers. Find out which provisions of the health reform law will be implemented using the [interactive Implementation Timeline] on the Health Reform Source."
(Henry J. Kaiser Family Foundation)

[Guidance Overview]
District Court Rules PPACA's Individual Mandate Is Unconstitutional
Excerpt: "As noted in the ruling: 'This case ... turns on atypical and uncharted applications of constitutional law interwoven with subtle political undercurrents. The outcome of this case has significant public policy implications. And the final word will undoubtedly reside with a higher court.'"
(Deloitte via BenefitsLink.com)

[Guidance Overview]
DOL's Lactation-Break 'Preliminary Interpretations'
Excerpt: "The material says that the 'reasonable break time' required should be evaluated according to individualized considerations of both the time spent expressing milk and 'steps reasonably necessary' to that activity."
(Fisher & Phillips LLP)

[Guidance Overview]
Health Care Reform Checklist
Excerpt: "As the year draws to a close, employers should review what actions they've taken with respect to health care reform for 2010 and begin planning for changes in 2011. This checklist will hopefully make the daunting task a little easier."
(Warner Norcross & Judd LLP)

Selected CBO Publications Related to Health Care Legislation, 2009-2010
Excerpt: "In the course of the deliberations over health care legislation, the Congressional Budget Office . . . provided a wide variety of estimates and other analyses regarding the impact of proposals on the federal budget and on aspects of health care and health insurance that were of interest to policymakers. In many cases, those estimates and analyses were produced in collaboration with the staff of the Joint Committee on Taxation . . . . That process began in early 2009 and continued past the enactment of the legislation in March of this year. Responding to many requests, this report compiles a set of those estimates and analyses for easy reference."
(U.S. Congressional Budget Office)

Current State of External Claim Review Process Is Examined
Excerpt: "Twenty-six individuals and organizations responded to a request for comments on operational issues associated with implementation of a federal external claims review process in states that do not have their own external review process."
(Wolters Kluwer)

Video: Pay Attention to Accountable Care Organizations
Excerpt: "UMR's Tony Anastasia discusses the growing role of Accountable Care Organizations in the U.S. health care system and why they need to be on employers' and advisers' radars in 2011."
(Employee Benefit Adviser; one-time free registration required)

Virginia Law Review Article Considers Issue of 'Employer Dumping'
Excerpt: "An analysis written by researchers at the University of Minnesota Law School and set to publish in the Virginia Law Review in 2011 examines the risk of 'employer dumping,' where employers might structure health plans that favor low-risk employees and encourage high-risk employees to join the new health insurance Exchanges."
(Henry J. Kaiser Family Foundation)

Implementing Health Reform: Employer and Consumer Issues (PDF)
Excerpt: "Under the health reform law, employers must decide whether to keep their existing health benefits intact ('grandfather' the plan), and thus avoid some mandates of the reform law. Doing so, however, requires that the firm not significantly cut benefits or raise employee out-of-pocket costs. (They can switch insurers, however.)"
(Alliance for Health Reform)

Law Prompts Some Health Plans to Cut Mental-Health Benefits .
Excerpt: "[A small number of unions, employers and insurers are scrapping treatment for mental-health and substance-abuse] benefits for their enrollees because of a 2008 law that requires that mental-health and substance-abuse benefits, if offered, be as robust as medical or surgical benefits. By dropping such coverage, providers can circumvent the requirements."
(The Wall Street Journal)

Obama Orders Breastfeeding Policy for Federal Workplace
Excerpt: "President Obama is asking federal personnel officials to draft 'appropriate workplace accommodations' for federal employees who are nursing mothers."
(The Washington Post; one-time registration required)

Virginia Federal Court Strikes Down Individual Mandate: What's Next for the Health Reform Law? (PDF)
Excerpt: "In the short run, however, the Virginia decision alone will have no direct impact on the implementation of the PPACA. The Virginia decision holds that only the IM portions of the PPACA are unconstitutional."
(The Bureau of National Affairs via McDermott Will & Emery)

Benefits in General; Executive Compensation

[Official Guidance]
Text of IRS Notice 2011-02: Deduction Guidance on Payments to Insurance Providers by Highly Compensated (PDF)
8 pages. Excerpt: "This notice provides guidance on the application of section 162(m)(6) of the Internal Revenue Code . . . . Section 162(m)(6) limits the allowable deduction for remuneration for services provided by individuals to certain health insurance providers. Section 162(m)(6) was added to the Code by section 9014 of the Patient Protection and Affordable Care Act (Public Law 111-148, 124 Stat. 119, 868 (2010))."
(U.S. Internal Revenue Service)

[Guidance Overview]
IRS Expansion of Scope of Section 409A Relief Under Notice 2010-80
Excerpt: "This additional guidance is helpful, but areas of uncertainty remain. In particular, relief would be helpful with respect to linked nonqualified and qualified plans where linked time and form of payment issues may not have been recognized."
(Dorsey & Whitney LLP)

[Guidance Overview]
Distribution of Top-Hat Plan Funds to Participants Was Not Permitted Until Determination of Employer's Solvency
Excerpt: "The appellate court found that its interpretation of the plan did not conflict with any other provision of the plan. Just because plan assets became 'payable' upon plan termination did not mean the employer could actually pay the participants if the employer was insolvent at the time of payment. The court explained that the plan provided that the employer could not distribute plan assets to the participants under those circumstances."
(Wolters Kluwer)

[Guidance Overview]
Treasury's 2010-2011 Priority Guidance Plan (PDF)
6 pages. Excerpt: "The Treasury and the IRS have issued their 2010-2011 priority guidance plan. The plan is released annually and reflects the guidance that IRS and Treasury have issued or intend to issue between July 1, 2010 and June 30, 2011. Treasury has already released some of the employee benefit-related items."
(Buck Consultants)

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