Health & Welfare Plans Newsletter

August 26, 2015

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Employee Benefits Jobs


Webcasts and Conferences

Best Practices for ESOP Boards of Directors
September 22, 2015 WEBCAST
(National Center for Employee Ownership [NCEO])

Leave Issues for 2015 and Beyond: Avoiding 15 Common FMLA Pitfalls and Preparing for Pittsburgh’s Paid Sick Leave Ordinance
September 22, 2015 in PA
(Littler Mendelson)

Public Health Exchanges and Consumer Engagement
September 23, 2015 WEBCAST
(Healthcare Web Summit)

Advanced Cross-Tested Plans: Adding More Tools - Bloomington
September 25, 2015 in IL
(SunGard Relius)

RMDs
September 25, 2015 WEBCAST
(SunGard Relius)

20th Annual Conference: Achieving Health Care Value: No Purchaser is an Island
November 16, 2015 in TX
(National Business Coalition on Health [NBCH])

View All Webcasts and Conferences


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[Official Guidance]

Text of CMS FAQs: Cost-Sharing Reduction Reconciliation Simplified Methodology (PDF)
5 questions and answers dated Aug. 25, 2015, covering: [1] Separate annual limitations on cost sharing; [2] Member months and the credibility threshold; [3] Change of circumstance; and [4] Pediatric dental and vision claims. (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])  


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[Official Guidance]

Text of CMS Bulletin 16: Guidance for Issuers on 2016 Reenrollment in the Federally-Facilitated Marketplace (PDF)
20 pages, dated August 25, 2015. "While much of the redetermination and reenrollment process remains unchanged for the Annual Open Enrollment Period (OEP) for 2016, important changes include: [1] establishing eligibility for 2016 advance payments of the premium tax credit (APTC) and income-based cost-sharing reductions (CSRs) using the most recent family income data available and updated 2016 Qualified Health Plan (QHP) prices (in contrast to the 2015 plan year, when 2014 APTC and CSRs were generally carried forward); [2] discontinuing APTC and income-based CSRs for enrollees who do not comply with the requirement to file a tax return and reconcile APTC for tax year 2014; [3] sending the first group of passive reenrollment transactions to issuers before the start of 2016 OEP; and [4] maintaining 2015 enrollees' effectuation status in 2016 passive reenrollment transactions." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])  

[Guidance Overview]

Preparing for the Cadillac Tax in 2018: Highlights for Employers
"If the total cost exceeds the applicable threshold, the employer is ... obligated to determine the proportion of the excise tax for any amounts in excess of the threshold attributable to each specific coverage provider. The employer must then notify the IRS and each coverage provider of the amount owed.... Note that the tax is calculated on an employee-by-employee basis. Depending on elections, HSA contributions (both employer and employee), FSA contributions (both employer and employee), and amounts available through an HRA, the applicable cost of coverage may be different for each employee. This will place a significant new burden on employers[.]" (Hill, Chesson & Woody)  

The Excise Tax on High-Cost Employer-Sponsored Health Coverage: A Background and Economic Analysis (PDF)
"This report gives a brief description of the Cadillac tax. It discusses the legislative origins of the tax and provides an analysis of the revenue effects of the tax. It then analyzes health insurance premium data to provide insights in to what share of health insurance plans could exceed the Cadillac tax threshold and how the threshold could affect more health plans over time. This report also analyzes the Cadillac tax using standard economic criteria of efficiency, equity, and administrative simplicity." [Report No. R44160, dated Aug. 20, 2015.] (Congressional Research Service [CRS])  

The Excise Tax on High-Cost Employer-Sponsored Health Coverage: An Estimate of Economic and Market Effects (PDF)
"This report examines several issues. It evaluates the potential of the Cadillac tax to affect health insurance coverage and the health care market. It also examines the expected incidence (burden) of the tax -- that is, which group's income will be reduced by the tax. Finally, the report discusses implications for economic efficiency in the context of tax administration." [Report No. R44159, dated Aug. 20, 2015.] (Congressional Research Service [CRS])  


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Obamacare 'Cadillac Tax' May Lead Employers to Cut FSAs
"FSAs can dramatically raise a company's exposure to the Cadillac tax.... [One] analysis, which assumed annual premium increases of 5 percent, found that just 16 percent of employers would have at least one health plan hitting the $10,200 Cadillac tax threshold for single-only coverage in 2018 if health FSAs were not considered. But 26 percent of employers would exceed that threshold that year if FSAs are included in the analysis. In 2023, when the threshold rises to $11,800 for single-only plans, 22 percent of employers would hit the threshold if FSAs were not factored into the calculation, but 30 percent of employers would if FSAs are considered." (NBC News)  

Playing with Fire: Requiring an Employee to Return from FMLA Leave 'Without Restrictions' or 'Fully Healed'
"[T]he ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers implement a '100% healed' policy, most courts find that employers improperly bypassed the individualized assessment process.... At a minimum, the problem with this practice is two-fold: [1] it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and [2] it increases the chance that the employer will have found to perceive the employee as disabled." (FMLA Insights)  

Text of Sixth Circuit Opinion: Subrogation Provision in SPD Is Enforceable; Finding of Liability Not Required for Subrogation to Apply (PDF)
"Moore claims that the grant of summary judgment should be reversed because genuine issues of material fact exist as to three issues: [1] whether the SPD is a controlling plan document, making the subrogation provision enforceable; [2] whether the settlement funds were wholly 'excess and separate' from the medical costs the Board seeks to recover and therefore exempt from subrogation; and [3] whether subrogation applies in the absence of a judicial finding or admission of liability by the third party. Because each of these issues poses a legal question rather than a factual dispute, and because the district court's resolution of the legal issues was correct ... the court properly granted summary judgment in the NEI Board's favor." [Nat. Elevator Inc. Health Benefit Plan v. Moore, No.14-04048 (6th Cir. Aug. 25, 2015)] (U.S. Court of Appeals for the Sixth Circuit)  

Eleventh Circuit Addresses Statutory Penalty Claims under ERISA
"The Eleventh Circuit overlooked the fact that a plan can have multiple fiduciaries performing different functions. In most cases, a plan's insurer will have the authority to make the final claim decision and will even identify itself as a fiduciary of the plan. This does not mean, however, that the insurer has agreed to assume the duties of the Plan Administrator to disclose plan documents or that it can be liable for penalties. In most cases, the plan insurer will not even have copies of the plan documents other than the policy." [Smiley v. Hartford Life and Accident Insurance Co., No. 15-10056 (11th Cir. July 17, 2015; unpub.)] (Wilson Elser)  

Value of Disability Benefits Often Overlooked
"Currently, one-third of American workers -- more than 40 million employees -- are enrolled in private disability coverage ... But less than half (47 percent) of employers with 10 to 99 employees offered long-term disability insurance in 2014. Although 42 percent of employers without LTD thought that the benefit would cost $30 or more per month for each worker, industry data shows that the typical range for an LTD premium per month in employer-sponsored programs is $20 to $30[.]" (Society for Human Resource Management [SHRM])  

U.S. Attitudes Toward Health Insurance and Healthcare Reform (PDF)
11 pages. "While 38% of respondents receive their insurance through their employer, this is a noticeable drop from 59%, when the survey was initially conducted in 2013. Those very satisfied or somewhat satisfied with their current health insurer were very similar for 2013 and 2015. Respondent's overall satisfaction with their payor, regardless of the source, remained consistent as well between 2013 (79%) and 2015 (73%)." (Valence Health)  

[Opinion]

How Many Employers Could be Affected by the Cadillac Tax?
"The important policy issue is not the tax, it is the decision to control spending by erecting financial barriers to [health] care through the design of the insurance product ... This prevents patients from getting care that they should have while exposing them to financial hardship." (Physicians for a National Health Program [PNHP])  

Benefits in General; Executive Compensation

A Look Ahead at the Supreme Court's October 2015 Term and Petitions of Interest to ERISA Practitioners
"In its upcoming October term, the U.S. Supreme Court will hear three cases of particular interest to ERISA plan sponsors and fiduciaries. First, the Court will hear yet another case involving a plan's ability to recoup medical expenses paid on behalf of a participant injured by a third party. Second, the Court will decide whether a state law creating a health claims database to facilitate healthcare and payment policy is preempted by ERISA. Third, in a non-ERISA case with potentially significant consequences under ERISA, the Court will decide whether a plaintiff needs to have suffered individualized injury in order to assert a claim for statutory and regulatory violations." (Proskauer Rose LLP)  

Social Security and Medicare Claiming Strategies to Navigate the Looming 52% Medicare Part B Premium Spike
"Given the looming Medicare Part B premium increase, those who are not eligible for the Hold Harmless provision -- for instance, those enrolled in Medicare but delaying Social Security benefits, or those who haven't yet enrolled in either but could -- should carefully consider whether it is really still worth delaying Social Security benefits (and/or delaying enrollment in Medicare), given that those who begin the process by October of this year still have the potential to get started in time to be eligible for Hold Harmless and shelter themselves from the 2016 increase." (Michael Kitces in Nerd's Eye View)  

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David Rhett Baker, J.D., Editor and Publisher
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