Retirement & Pension Plan Administration & Consulting
Pension and Retirement Plan Company
in CT, NJ, NY

ERISA Staff Attorney
Kelley Drye & Warren LLP
in CT, NY

Internal Sales Consultant
The Newport Group
in NC

Loan and Distribution / Junior DC Administrator
Actuarial Consulting Services
in NJ

Associate
Thompson Hine LLP
in OH

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[Guidance Overview]

Contributing Employers to Multiemployer Plans Are Not Off the Hook: Tracking the Full-Time Status of Employees
"Contributing employers to multiemployer plans were relieved by the Treasury Department's interim guidance stating that they will not be subject to the employer shared responsibility payments under the [ACA] with respect to employees for whom they contribute to a multiemployer plan that provides minimum value, offers dependent child coverage and is affordable.... That led many employers to believe mistakenly that they do not have to determine the full-time status of these employees ... [C]ontributing employers still need to determine which employees are full time in order to properly comply with IRS reporting requirements." (Proskauer's ERISA Practice Center)  

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Helpful Health Care Reform Titles – Newly Updated

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[Guidance Overview]

Guidance Addresses Premium Reimbursement Arrangements and ERISA Preemption of State Stop-Loss Insurance Laws
"[T]he Departments rejected a new market product under which employers are being encouraged to drop their group policies and establish an IRC Section 105 reimbursement plan ... In the Departments' view, these arrangements are group health plans in their own right and therefore participating employees are ineligible for premium tax credits or cost-sharing reductions for exchange coverage.... In Technical Release 2014-01, the DOL takes the view that ... state regulation of stop-loss policies can have an effect similar to that of insurance regulation of group health insurance ... without running afoul of ERISA's preemption general rule. As a result, a state law prohibiting insurers from issuing stop-loss contracts with attachment points below the applicable limit would not, in the DOL's view, be preempted by ERISA." (Practical Law Company)  

[Guidance Overview]

Agencies Plug Several Holes in the ACA Dike
"[The] agencies have now issued a number of pieces of guidance designed to plug several holes in the ACA dike resulting from what they perceive as abusive practices by employers and their advisers. This guidance will [1] require that any plan claiming to satisfy the ACA's 'minimum-value' standard offer substantial coverage for inpatient treatment, [2] prevent employers from providing even after-tax incentives for their employees to waive coverage under an employer plan, and [3] encourage state insurance regulators to impose minimum attachment points on stop-loss policies issued to self-funded health plans." (Spencer Fane)  

[Guidance Overview]

Cafeteria Plans and Cash Alone Fail ACA Employer Mandate
"The nondiscrimination rules do allow some 'benign discrimination,' such as offering enhanced coverage to an at-risk employee with a history of high-cost claims, but the departments do not consider it benign to offer cash to employees with high claims risks as an incentive to disenroll from standard group health plan coverage. Instead, any arrangement that ushers such an employee out of a plan because of his or her high-cost history or reputation, will be seen to violate HIPAA and expose the plan to ACA penalties." (Thompson SmartHR Manager)  

[Guidance Overview]

Final Rule Addresses ACA 'Excepted' Benefits (PDF)
"Employee assistance programs (EAPs) and dental, vision, and long-term care benefits that satisfy newly relaxed requirements under a recent final rule are exempt from the [ACA's] health insurance market reforms, starting with plan years that begin on or after Jan. 1, 2015.... [T]hese programs and 'limited scope' benefits will not have to satisfy the ACA's requirements on preexisting condition exclusions, prohibition on discrimination based on health status, and guaranteed renewability, among other standards." (Milliman)  

[Advert.]

24th Annual National Health Benefits Conference & Expo (HBCE)

Plan now to attend the National Health Benefits Conference & Expo, January 27-28 in Clearwater Beach, Florida. The conference provides cutting-edge case studies and advanced cost control strategies presented by national thought leaders. Register Now!

Transcript of Oral Argument before Supreme Court in Retiree Health Benefit Vesting Case (PDF)
"Allyson N. Ho on Behalf of Petitioners: The promise of unalterable, costly healthcare benefits should be negotiated at the bargaining table, not imposed at the courthouse. In a series of cases, the Sixth Circuit has required courts to infer from contractual silence a promise of vested benefits. Justice Ginsburg: But ... we're dealing with a case where there isn't silence.... [T]his collective bargaining agreement says that the employees will receive a full company contribution toward the cost of health benefits. That's not silent.... Julia P. Clark on Behalf of Respondents: As the Court has so aptly noted, this is a contract dispute, and our argument is simply that contract disputes relating to retiree health benefits should be decided like every other dispute under a collective bargaining agreement.... Justice Breyer: Isn't that what Justice Scalia believes? I tend to agree with him. He said ... the other side is arguing the same thing, and ... says since both sides want to argue the same thing, maybe we can just agree with them." [M&G Polymers USA, LLC v. Tackett, No. 13-1010 (on appeal from 6th Cir., cert. granted May 5, 2014)] (Supreme Court of the United States)  

Supreme Court Weighs Case Over Cuts to Retiree Health Benefits
"The Supreme Court seemed puzzled [at the November 10 oral argument] about why it was being asked to decide whether a chemical company could cut the health benefits of its retired workers. 'This is an important benefit and an expensive one,' said Justice Samuel A. Alito Jr. He would have expected, he said, that the issue would have been resolved in the company's contract with the union." [M&G Polymers USA, LLC v. Tackett, No. 13-1010 (on appeal from 6th Cir., cert. granted May 5, 2014)] (The New York Times; subscription may be required)  

Bad Faith and Punitive Damages Claims Against Health Plan's Stop Loss Carrier Are Questions for Jury
"What effect should an employee's use of an invalid Social Security number have on an employer's claim for stop loss reimbursement? In this case, the carrier thought this should invalidate coverage. The court disagreed. If the carrier's defense held, it could have had important and far-reaching consequences for employers." [Bay Area Roofers Health and Welfare Trust v. Sun Life Assurance Co. of Canada, No. 3:2013cv04192 (N.D. Cal. Nov. 6, 2014)] (Health Plan Law)  

King v. Burwell and the 'Plain Meaning' Rule of Statutory Interpretation
"What each state will do if faced with the prospect that its citizens will no longer get subsidies to buy insurance if it does not establish and operate an insurance exchange is entirely unknown. Moreover, even a victory by the government will hardly guarantee the ACA's success in regulating the private insurance market.... Two important issues are raised by the decision. First, how broad is the 'absurdity' exception to the plain meaning rule? Second, to what degree and extent should the unusual factual circumstances that led to the ACA's passage affect the operation of the plain meaning rule?" (SCOTUSblog)  

Delay Sought on ACA Challenge in D.C. Circuit Court of Appeals
"Lawyers for challengers to the subsidy system that exists under the [ACA] ... asked the full U.S. Court of Appeals for the District of Columbia Circuit on [November 10] to put a pending appeal on that issue on hold while the Supreme Court reviews the controversy.... 'Simply put,' the motion said, 'there is no reason to consume the substantial resources associated with en banc rehearing when the Supreme Court is poised to decide the same issue on virtually the same timeline.' " (SCOTUSblog)  

Health Care Executives Embracing Telemedicine
"Eighty-four percent of respondents felt that the development of telemedicine services is either very important (52 percent) or important (32 percent) to their organizations.... This attitude is partly due to the shift in financial and payment incentives under the ACA. As health care providers move from a fee-for-service model to one that reimburses based on positive patient outcomes, providers bear a greater share of the risk -- and potential reward -- for keeping their patients healthy.... the customary fee-for-service environment makes it challenging to be paid for medicine practiced outside the traditional spheres of interaction." (Foley & Lardner LLP)  

Innovative Solutions for Health Adopted by Dow Chemical Company (PDF)
"The Dow health strategy has four pillars -- prevention, quality and effectiveness, health care system management and advocacy. The company offers its employees a range of programs to promote 'good health for the whole self' including smoking cessation, stress management, cancer screening, nutrition and active lifestyles.... From a 2004 baseline, wellness programs at Dow have seen a 28 percent reduction in the population at high risk. Dow also provides its employees with tools to increase health care cost and quality transparency, including an online payment estimator, drug cost calculator and tool to compare hospitals." (Business Roundtable [BRT])  

Text of GAO Report 15-85 on Compounded Drugs: Payment Practices Vary Across Public Programs and Private Insurers, and Medicare Part B Policy Should Be Clarified
"Medicare, Medicaid, and private health insurers have varying payment practices for compounded drugs, depending upon whether compounded drugs and their ingredients can be identified on health insurance claims, and Medicare's Part B payment policy for these drugs is unclear.... GAO recommends that CMS clarify its Medicare Part B payment policy to either allow or restrict payment for compounded drugs containing bulk drug substances and align payment practices with this policy. HHS disagreed with this recommendation, stating that the Part B payment policy does not depend on drug ingredients. GAO maintains that the policy needs clarification." (U.S. Government Accountability Office [GAO])  

Paid Sick Time Wins on Ballots
"Mandated paid sick time for employees is growing in popularity but is still unavailable to significant numbers of working mothers ... The absence of paid sick time also affects husbands and fathers. But according to a survey last year by the Kaiser Family Foundation, wives are far more likely to stay home from work to care for a sick child, and 43 percent of all working mothers are not offered paid sick days by their employers." (SquaredAway Blog, by the Center for Retirement Research at Boston College)  

Following Nationwide Trend, Voters in Several Jurisdictions Approve Paid Sick Time Laws
"The paid sick time laws give covered employees the right to paid time off to recover from illness, to care for a sick family member, to obtain preventive care or diagnosis, or to help a family member, as defined in the applicable law, to obtain such care or diagnosis. Most of the laws also permit employees to use paid sick time when a public official has closed the employee's place of business or the school of an employee's child due to a public health emergency. In addition, each of the laws prohibits retaliation against an employee who exercises his or her rights under the sick time law or who informs other employees about the right to paid sick time." (Morgan Lewis)  

Massachusetts Passes New Paid Sick Leave Law
"Employers that do not currently grant paid time off to all employees will need to implement a new policy. Employers that already provide paid time off that may be used to cover absences (such as under a vacation time or other PTO policy) may not have to offer additional time off, but will likely need to revise their existing policies to ensure that they comply with the new law's use and accrual requirements. Employers must also post notice of the law, once prepared by the Attorney General, in a location conspicuous to employees." (Choate Hall & Stewart LLP)  

[Opinion]

ACA Architect Says 'Stupidity of the American Voter' Led Us To Hide Obamacare's True Costs from the Public
"You've got to hand it to MIT economist Jonathan Gruber. The guy dubbed the 'Obamacare architect' is a viral YouTube sensation. A few months back, he was caught on tape admitting that Obamacare doesn't provide subsidies for federally-run insurance exchanges; it's now the topic of a new case before the Supreme Court. Today, new video surfaced in which Gruber said that 'the stupidity of the American voter' made it important for him and Democrats to hide Obamacare's true costs from the public. 'That was really, really critical for the thing to pass,' said Gruber. 'But I'd rather have this law than not.' In other words, the ends -- imposing Obamacare upon the public -- justified the means." (Forbes)  

Text of 2014 ERISA Advisory Council Executive Summary (PDF)
11 pages. Topics: [1] Facilitating Lifetime Plan Participation; [2] Pharmacy Benefit Manager (PBM) Compensation and Fee Disclosure; and [3] Outsourcing Employee Benefit Plan Services. (ERISA Advisory Council)  

Fifth Circuit Adopts Majority Rule on What Constitutes 'Other Instruments' of an ERISA Plan
"The appellants ... had sought production of investment guidelines used by administrators of the appellee pension plans, arguing that they were 'other instruments' under which the plans were operated. The Fifth Circuit disagreed, construing the catch-all provision narrowly so as to apply only to formal legal documents that govern a plan.... [and noting] that the term 'other instruments' in [ERISA] section 104(b)(4) followed a list consisting of formal documents that either [1] provide plan participants and beneficiaries with notice of their rights and obligations or [2] are the foundational documents under which a plan is created and governed." [Murphy v. Verizon Communications, Inc., No. 13-11117 (5th Cir. Oct. 14, 2014)] (Wilson Elser)  

Top Issues for Plan Participants Choosing Nonqualified Salary Deferrals for the Year Ahead
"In the analysis for deferrals to make in 2015, one ongoing issue stems from the tax increases that took effect in 2013, including the additional Medicare taxes for high earners. Other points to consider include ... [1] Maximizing the amount you can contribute to your 401(k) plans.... [2] Cash needs for the year ahead and multi-year projections for your income.... [3] The financial security of your company, and your job security.... [4] Company match.... [5] The thresholds for higher taxes and rates." (myStockOptions.com)  

ISS, Glass Lewis Release 2015 Proxy Voting Updates, Espouse Nuanced Review of Equity Compensation Practices
"ISS will generally recommend voting against a new or amended equity plan if the combination of the foregoing factors indicates that the plan is 'not, overall, in shareholders' interests'.... Glass Lewis has made clear that qualitative factors, such as an effective overall incentive structure, relevance of selected metrics and reasonable long-term payout levels could result in a recommendation in favor of the say-on-pay proposal, even where the Glass Lewis quantitative-based models suggest a pay-for-performance disconnect." (Proskauer's ERISA Practice Center)  

Jeffrey Johnson Joins Pentegra Retirement Services as Regional Director
Pentegra Retirement Services

Three Industry Leaders Team Up To Provide Training for 401k Advisors
Pivirotto Resource Group

Segal Expands Health Consulting Team in Midwest
The Segal Group

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