Health & Welfare Plans Newsletter

June 15, 2015

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[Official Guidance]

Text of CCIIO FAQ: Uniform Modification and Plan/Product Withdrawal (PDF)
5 Q&As address product design changes that may or may not be considered new products, discontinuance of products, or complete market withdrawal. Excerpt: "The uniform modification rules give issuers substantial room to adjust product portfolios. Changes to covered benefits, outside of those made pursuant to applicable federal or state requirements, may cumulatively impact the plan-adjusted index rate for any plan within the product by plus-or-minus 2 percentage points without falling outside the scope of the uniform modification of coverage rules." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])  


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[Official Guidance]

ACA Information Returns (AIR) Submission Composition and Reference Guide (PDF)
90 pages; June 2015. "The purpose of this document is to provide guidance to all types of external transmitters about composing and successfully transmitting compliant submissions to IRS. The audience of this document is: [1] Issuer: A business filing their own ACA Information Returns regardless of whether they are required to file electronically (transmit 250 or more of the same type of information return) or volunteer to file electronically.... [2] Transmitters: A third-party sending the electronic information return data directly to the IRS on behalf of any business required to file. [3] Software Developers: An organization writing either origination or transmission software according to IRS specifications." (Internal Revenue Service [IRS])  

[Guidance Overview]

Affordable Care Act Information Returns (AIR) Program: Did You Know ...
IRS-authored list of action items and key operational aspects of the AIR Program, for example: "If a Software Developer plans to transmit submissions, they must apply for a TCC as both a Software Developer and Transmitter.... Transmitters and Issuers/Payers (Submitters) are required to complete an error-free communication test to transmit electronic information returns to the IRS the first year only.... The data file size limit for a single transmission filed through AIR is 100MB ... The XML Schemas for Forms 1094-B, 1094-C, 1095-B and 1095-C include elements designed to uniquely identify AIR transmissions, submissions within the transmission, and records within the submission. Transmitters must generate these IDs and maintain them along with their associated transmissions." (Internal Revenue Service [IRS])  

[Guidance Overview]

Student Employees and the ACA, Part 4 of 4: If Students Are Employees, How Are Their Hours Counted?
"The IRS provides no clear methodology for counting and tracking resident assistant hours.... [W]here hours of service are particularly difficult to identify or track, an employer should use a 'reasonable method of crediting hours of service that is consistent with [Code] section 4980H.' The IRS has also offered the following guidance, which is illustrative (albeit not quite on point): The 'adjunct faculty' safe harbor.... 'On call' employees." (Mintz Levin)  

[Guidance Overview]

Providing the Summary of Benefits and Coverage
"The final rule essentially adopts the proposed rule unchanged, with a passing nod in the preface to comments the departments received. The NAIC has convened a stakeholder group that meets twice weekly for 90 minutes and is working through the template." (Health Affairs)  


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[Guidance Overview]

Massachusetts Attorney General Issues Revised 'Safe Harbor' Delaying Full Implementation of New Earned Sick Time Law and Required Posting
"The new 'safe harbor' language provides that an employer may delay full implementation of all the requirements of the new earned sick time law and regulations until January 1, 2016 if [certain] requirements are met ... If an employer meets all of these requirements, the employer may continue to administer the paid time off policy it had in place as of May 1, 2015. All employers that choose to operate under this safe harbor must adjust their policies to come into full compliance with the earned sick time law and regulations by January 1, 2016." (Ogletree Deakins)  

Ineffective Grant of Discretionary Authority Leads to Overturned Benefit Denial
"[T]he plan document conferred discretionary authority on the employer and the committee designated to handle appeals -- initially, an internal employer committee. However, when appeals were later outsourced to the plan's external claims administrator, the service agreement between the parties was amended but the plan document was not. The court concluded that the employer's actions were insufficient to grant the claims administrator discretionary authority, rejecting alternative arguments that the claims administrator was effectively designated as the committee or that the outsourcing effectively amended the plan." [Bilheimer v. Fed. Express Corp. Long Term Disability Plan, No. 13-1859 (4th Cir. May 5, 2015)] (Thomson Reuters / EBIA)  

Ninth Circuit: ERISA's Hold-in-Trust Requirement Does Not Require Express Trust Language
"The Ninth Circuit U.S. Court of Appeals has ruled that ERISA's hold-in-trust requirement does not necessitate the creation of a document including express words of trust.... [T]he court ruled that a long-term disability plan did not breach its duty to hold plan assets in trust by depositing participant contributions into a checking account that was used exclusively to pay benefits and plan expenses." [Barboza v. Cal. Ass'n. of Prof. Firefighters, No. 11-15472 (9th Cir. Apr. 7, 2015)] (The Wagner Law Group)  

Texas Prompt Pay Law Not Preempted; Enforceable Against Self-Insured Health Plan TPAs
"The state law generally requires 'insurers' to pay benefit claims within 30 or 45 days (depending on the claim's format), or face penalties.... [T]he TPA filed suit seeking a declaratory judgment that the law does not apply to self-insured plans, or, if it does apply, that the law is preempted by ERISA. The court considered only the preemption issue ... The court's decision contrasts with a recent Eleventh Circuit ruling that ERISA preempts a similar prompt payment law in Georgia[.]" [Aetna Life Ins. Co. v. Methodist Hospitals of Dallas, No. 3:14-cv-347 (N.D. Tex. Mar. 4, 2015)] (Thomson Reuters / EBIA)  

Garnishment of HSA Balance Allowed Under Colorado Law
"Colorado's highest court has denied a debtor's attempt to characterize his HSA as a retirement plan in order to shield the HSA from a creditor's claims. The decision affirms a split decision by a lower court, which ruled that HSAs are not 'retirement plans' within the meaning of Colorado's garnishment law because they can be used for medical expenses at any point during the account holder's lifetime." [Roup v. Commercial Research, LLC, No. 14SC50 (Colo. June 1, 2015)] (Thomson Reuters / EBIA)  

Workers Demand Employer-Sponsored Healthcare
"When survey respondents were told, hypothetically, that their employer would no longer provide a group health insurance benefit, 64 percent expressed dissatisfaction with their employer's handling of the situation. When faced with the prospect of losing their employer-sponsored insurance, many workers expressed the desire to find a new job, and 15 percent said they would plan to leave their job immediately. Nearly one third (32 percent) declared they would be less motivated to work hard." (Accenture)  

Employer Groups Oppose Expanded ACA Small-Group Definition
"Employer groups are urging repeal of the [ACA's] expansion of the small group market to include groups up to 100, due to occur in January 2016 ... [B]usinesses with 50 to 99 workers will be subject to the employer mandate in 2016, and some of them will have to buy coverage from the small group market, where many policies are more expensive ... Meanwhile, larger companies with 100 and more workers ... will be free to buy large-group coverage; also, larger (100+) companies are in a better position to self-insure their health benefits[.]" (Thompson SmartHR Manager)  

Vast Data Warehouse Raises Health Overhaul Privacy Concerns
"The health care system, known as MIDAS, is described on a federal website as the 'perpetual central repository' for information that the [ACA] authorizes federal agencies to collect. 'Data in MIDAS is maintained indefinitely at this time,' says another document, a government privacy assessment dated Jan. 15. It lists the kinds of information stored, including names, Social Security numbers, birthdates, addresses, phone numbers, passport numbers, employment status and financial accounts." (Associated Press)  

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