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Eleventh Circuit Offers an Alternate Path for Analyzing Whether Wellness Programs Comply with the ADA
"Until now, the challenges to wellness programs ... have focused on whether a program is truly 'voluntary' and whether a program poses medical inquiries that violate the ADA.... [The EEOC's] current position is that a wellness program complies with the ADA if it ... neither requires participation nor penalizes employees who do not participate. [This decision] appears to bypass the EEOC's 'voluntary' analysis by holding that a wellness program that falls within the ADA's safe harbor for bona fide benefits plans need not comply with the ADA requirements regarding medical examinations and inquiries for employees.... [While] it is unclear whether and to what extent the EEOC will follow the Seff ruling beyond the boundaries of the Eleventh Circuit ..., the decision does encourage employers to closely tie their wellness programs to their group health plans." [Seff v. Broward County, No. 11-12217 (11th Cir. Aug. 20, 2012)] (Morgan, Lewis & Bockius LLP)

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Citing Terms of Collective Bargaining Agreement, Sixth Circuit Rejects Retirees' Claim to Lifetime Health Benefits
"Writing for the majority, Judge Jeffrey S. Sutton found that the CBA's reservation-of-rights clause was 'incompatible' with a promise to provide lifetime benefits and that the CBA's mention of 'continuous health insurance' did not change the fact that the employer was free to modify or terminate health benefits at any time." [Witmer v. Acument Global Technologies Inc., No. 11-1793 (6th Cir. Sept. 17, 2012)] (Bloomberg BNA)

Practitioners Find Complexity, Flexibility In Notice on Employer Penalties Under ACA
"The guidance in Notice 2012-58 has a level of complexity that, 'at first glance, may be incredibly stress-provoking for employers,' [said] Kathryn L. Bakich, ... national health care compliance practice leader at the Segal Co. ... However, concern that the rules be flexible enough to accommodate employers' workforce needs is very much evident in the guidance, she said." (Bloomberg BNA)

Hospitals Buy Doctors: As Hospitals Take Over Doctors' Practices, Fees Rise
"Hospitals throughout Florida are taking over doctors' practices at a rapid—and some say worrisome—rate. The trend, happening across the country, allows hospitals to charge more and doctors to worry less about their financial futures. Meanwhile, patients and others who foot the bill for health care lose, say some health-policy analysts." (Orlando Sentinel)

Health Care Benefits Second Most Difficult Decision for Consumers
"Results from Aetna's Empowered Health Index Survey show that Americans rank choosing health care benefits as the second most difficult major life decision behind saving for retirement. Survey participants reported that choosing health care benefits is more difficult than purchasing a car, making decisions about medical tests or treatments, parenting, and selecting homeowners, renters or auto insurance. Consumers who found health care benefits decisions difficult cited the following reasons: the available information is confusing and complicated (88 percent), there is conflicting information (84 percent) and it is difficult to know which plan is right for them (83 percent)." (Aetna)

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SWBA / IRS Employee Benefits Conference for Practitioners and Plan Sponsors

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Unencrypted Laptop Computer Costs Medical Clinic $1.5M: HIPAA Breach Penalties Loom
"Health plans ... and their business associates have yet another $1 million plus reminder of the importance of taking proper steps to secure electronic protected health information and take other steps required to comply with [HIPAA].... Massachusetts Eye and Ear Infirmary and Massachusetts Eye and Ear Associates, Inc. (MEEI) will pay [HHS] $1.5 million ... to settle potential [HIPAA] violations ... [following] the theft of an unencrypted personal laptop containing the electronic protected health information (ePHI) of MEEI patients and research subjects. The laptop information included patient prescriptions and clinical information." (Solutions Law Press)

Is Emergency Department Overutilization Really a Problem?
"[B]oth employers and insurers are increasing cost-sharing for emergency room visits. [A recent survey] found that 91% of covered workers have cost-sharing for emergency department visits. Cost sharing averages a $118 copayment or 18% coinsurance, the report found. But a recent analysis from the Center for Studying Health System Change found that among nonelderly Medicaid enrollees, only 10% of emergency department visits were for nonurgent symptoms, compared with 7% for privately insured nonelderly patients in 2008. The report questions the conventional wisdom that benefit design and care coordination programs can eliminate widespread waste from inappropriate usage of emergency departments." (AISHealth.com; free registration required)

House Committee Hearing on ACA Highlights Lack of Regulatory Guidance
"At a hearing on September 12 to discuss implementation of the ACA's health insurance exchanges and related provisions, Congressman Sam Johnson (R-TX) complained in an opening statement that the Obama Administration has relied too heavily on interim final rules for implementing ACA mandates on pre-existing conditions, dependent coverage, and grandfathered health plan policies. The problem with this, explained Johnson, is that the regulations then take effect before employers or health care providers group can submit comments on any particular regulation's effects. Johnson also complained that the Administration has issued guidance in an informal format such as bulletins and FAQs. Guidance in those formats can change at a moment's notice, he noted." (Wolters Kluwer Law & Business)

Deloitte Health Care Reform Memo, September 17, 2012
"When Lyndon Johnson passed his Great Society program in 1965, starting the Medicare and Medicaid programs, no one could imagine the future of both programs. They're vital parts of the social safety net that seniors, the disabled, and poor count on. And they're huge in terms of enrollment—49 million in Medicare, 62 million in Medicaid—and costs: combined, state and federal spending on the two is $986.5 billion—more than defense spending ($712 billion) and any other category of government spending." (Deloitte)

Funding Priorities in the ACA
"The first two years of spending on grants and demonstration projects tells us the framers of the law understood that expanding coverage would also require strategies to ensure enough capacity in the system to treat those newly insured. Indeed, nationally and in Michigan, the top spending category in 2010 was the health care workforce, and in 2011, health centers. Funding went for training programs (for nurses and primary care practitioners) and expansion of federally qualified health centers. These funding priorities show the framers understood that coverage alone is not enough to provide access to care." (Center for Healthcare Research & Transformation)

An Analysis of Grant Programs under Health Care Reform
"The ACA reduces the number of uninsured Americans by expanding eligibility for Medicaid and offering tax credits for the purchase of private insurance. In addition, the ACA makes investments to expand access to care, reform the health care delivery system, implement broad private insurance reforms, and enhance the public health infrastructure. Many of these reforms and investments are paid for through direct public funding included in the law.... This issue brief focuses on ACA grants that were awarded during [2010] and fiscal year 2011 (October 1, 2010 to September 30, 2011). This brief also examines other current and planned grant spending in the ACA and how funds have been distributed to states for a variety of programs." (Center for Healthcare Research & Transformation)

[Opinion]

Should the Medicare Eligibility Age Be Raised?
"Few would argue that Medicare, the U.S. health-insurance program for the elderly, needs fixing.... The question of what to do about it, however, has many people divided. In one camp are those who believe that gradually raising the Medicare eligibility age to 67 from 65 should be an option. They point out that people are living longer now than they were when Medicare was enacted in 1965 ... Others say that making Americans wait two extra years to get Medicare would be unfair to the poor, increase the ranks of the uninsured and, most important, end up costing Americans more than it saves them." (The Wall Street Journal)

Watch Out for Exec-Pay Tax Deduction Traps
"In addition to reviewing what process is used to ensure that option grants comply with plan terms, it's worth considering how Section 162(m) grant limits are structured under the plan. For example, a company may want to consider using a relatively high share limit based on a 12-month period instead of a multiyear period. Separate limits can also be used for different types of equity awards (such as performance-based full-share awards versus stock options)." (CFO)

Code Section 409A Rears Its Ugly Head Again
"IRS Notice 2010-80 ... may require a minor revision to employment, severance and change in control plans and agreements that require an employee to execute and deliver to the employer a release of claims before receiving payments.... [E]mployers and employees have until December 31, 2012 to make this change. The reason IRS is requiring this change is its paranoia over the possibility that some employers and employees will delay the commencement (and taxation) of severance payments into the following calendar year by "sitting on" the required release for a few days or a few weeks or, conversely, will accelerate payments into the current calendar year by speeding up the waiver process." (Winston & Strawn LLP)

Ninth Circuit Rules In-House Counsel Internal Communications Before Final Appeal Not Privileged
"[This case of a long-term disability claim brought against the underwriter of an employer-sponsored plan governed by ERISA] shows that: an Insurance Commissioner's ban on discretion language may not affect a plan that is 'amended' rather than having a 'new' policy added; 'bonus' might be considered in calculating 'basic monthly earnings' in some circumstances.... Communications prior to a final appeal decision are not 'preparation for litigation' and therefore are not privileged." [Stephan v. Unum Life Insurance Company of America (9th Cir. September 12, 2012)] (Lane Powell PC)

Confirm Credentials and ERISA Bonds for Internal Staff, Plan Fiduciaries and Vendors
"Bonding exposures can arise in audit or as part of a broader fiduciary investigation. The likelihood of discovery in an audit or investigation by the Labor Department in the course of an audit is high, as review of bonding is a standard part of audits and investigations.... In the best case scenario, where the bonding noncompliance comes to light in the course of an EBSA audit where no plan loss resulted, the responsible fiduciary generally runs at least a risk that EBSA will assess the 20 percent fiduciary penalty under ERISA Section 502(l)." (Insurance Thought Leadership, LLC)

American College Of Employee Benefits Counsel Honors Nation’s Top Benefits Attorneys
American College of Employee Benefits Counsel

HighRoads Delivers New ACA Compliance Documents in Advance of Deadline to Ensure Employer Compliance
HighRoads, Inc.

Celebrate Your 401(k)/403(b) Plan Every Day
Plan Sponsor Council of America (PSCA)

American College Of Employee Benefits Counsel Selects National Writing Competition Winners
American College of Employee Benefits Counsel

Liberty Mutual Insurance Offers Free Guides Detailing Steps Employers Can Take to Manage the Impact of an Employee’s Death
Liberty Mutual