Health & Welfare Plans Newsletter

April 4, 2016

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Account Manager, Employee Benefit Services
Healthcare Association of New York State
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Administrative Department Manager
IUPAT Industry Pension Fund
in MD

ERISA Consultant
Goldleaf Partners
in MN

Implementation Consultant
Alliance Benefit Group of Houston, Inc. (ABG)
in TX

Senior Analyst
Cammack Health, LLC
in NY

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NRECA
in VA

National Account Manager
John Hancock
in MA

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Intac Actuarial Services
in NJ, NY

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Webcasts and Conferences

Final Conflicted Advice Regulation: What’s New and What Does It Mean for Plan Administrators
April 14, 2016 WEBCAST
(ASPPA [American Society of Pension Professionals & Actuaries])

Employee FMLA Certifications: Practical Rules to Avoid Legal Mistakes
April 27, 2016 WEBCAST
(Onlinecompliancepanel)

DuPage Association of Health Underwriters 2016 EXPO
May 17, 2016 in IL
(DuPage Association of Health Underwriters)

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[Official Guidance]

Text of CMS Guidance on Ending 2015 Special Enrollment Periods (PDF)
"[As] of April 1, 2016, CMS will no longer accept new requests that would enable consumers to enroll in a Qualified Health Plan (QHP) with 2015 coverage effective dates through the Federally-facilitated Marketplace, Federally-facilitated Marketplaces where States perform plan management functions, or State-based Marketplace using the Federal Platform using a Special Enrollment Period (SEP)." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])  


[Advert.]

Happy National Employee Benefits Day!

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Celebrate National Employee Benefits Day by helping your workforce get financially fit! The International Foundation has the resources you need to help your employees' bulk up their budget, stretch their dollar and dunk their debt. Learn More.



[Guidance Overview]

CMS Issues Guidance on Language Accessibility Requirements
"The guidance imposes no new regulatory requirements but rather compiles in one place guidance on all language access requirements that have appeared in earlier rules. What is new, however, is a state-by-state list of the top 15 non-English languages in each state and of languages spoken by 10 percent of a state's population, as well as translated taglines in each of the 63 languages that appear on one of the lists.... [E]xchanges and qualified health plans (QHP) insurers, as well as web brokers that have been registered for at least one year, must provide oral and written translation services, including telephonic interpreter services in at least 150 languages." (Health Affairs)  

[Guidance Overview]

IRS Limits Retroactive Cash Reimbursements for Transit Benefits
" 'If transit passes are readily available in the employer's area, the Code doesn't provide an income or employment tax exclusion for transit benefits paid to employees in cash,' the IRS said in [a Chief Counsel memorandum]. On the other hand, if transit passes aren't readily available and employers provide transit benefits in the form of cash reimbursements, employers must have a bona fide reimbursement arrangement under which employees must actually incur and substantiate the expenses[.]" (Bloomberg BNA)  

[Guidance Overview]

A Medicare Primer (PDF)
40 pages. "This report provides a general overview of the Medicare program including descriptions of the program's history, eligibility criteria, covered services, provider payment systems, and program administration and financing. A list of commonly used acronyms, as well as information on beneficiary cost sharing, may be found in the appendixes." [Report no. R40425, dated Mar. 31, 2016.] (Congressional Research Service [CRS])  

[Guidance Overview]

The Individual Mandate for Health Insurance Coverage, in Brief (PDF)
8 pages. "This report provides an overview of the individual mandate, its associated penalty, and the exemptions from the mandate. It also discusses the ACA reporting requirements designed, in part, to assist individuals in providing evidence of having met the mandate." [Report no. R44438, dated Mar. 30, 2016.] (Congressional Research Service [CRS])  


[Advert.]

Learn how this year's election will effect ACA compliance

Sponsored by Institute for Healthcare Consumerism [IHC]

IHC FORUM & Expo Atlanta, May 24-26, the go-to conference to learn how the 2016 presidential election will affect ACA compliance and reporting. Attend FORUM & Expo for critical insights & expert outlooks on plan design, compliance and reporting.



Including Limitations Periods in Denial Letters: From 'Best Practice' to Necessity
"Sponsors of group health plans in the First Circuit must now describe any contractual limitations period, if the plan applies one, in the letter advising a participant of a final adverse benefit determination.... The limitations period should be included in the plan document and the SPD and, until recently, it was a 'best practice' to make the limitations period known in adverse benefit determination letters. Following Santana-Diaz, however, including a description of the applicable limitations period in the final benefit determination is now a necessity for plan sponsors in the First Circuit." (Verrill Dana LLP)  

Johnson Controls Retirees Lose Lifetime Benefits Fight
"Judge Sylvia H. Rambo granted summary judgment to Johnson Controls, holding that the collective bargaining agreements at issue didn't include 'clear and express language' providing for vested unlimited lifetime health-care benefits to retirees.... A plain reading of the phrase 'shall have the following benefits ... continued' didn't unambiguously indicate that the benefits will be set for life notwithstanding the expiration of the CBA, the court said. A more reasonable interpretation is that the benefits would continue until the applicable CBA expires, the court concluded." [Grove v. Johnson Controls, Inc., No. 1:12-CV-02622 (M.D. Penn. Mar. 31, 2016)] (Bloomberg BNA)  

FMLA Leave Didn't Fulfill ADA Requirements When Employee Needed Medical Leave for Disability
"[A] federal district court in Florida rejected the employer's apparent belief that granting 12 weeks of FMLA leave ended any need for a further accommodation under the ADA. It also concluded that, given the frequent turnover with respect to the many nursing assistant positions, the employer could easily have accommodated her request to extend her leave for an additional three months to heal from shoulder surgery." [Walker v. NF Chipola, LLC, dba Nursing Pavilion at Chipola Retirement Center, No. 4:14cv375 (N.D. Fla. Mar. 28, 2016)] (Wolters Kluwer Law & Business)  

Top 11 Employer FMLA Mistakes
"No FMLA policy ... Counting light-duty work as FMLA leave ... Silent managers ... Untrained supervisors ... Missed notices ... Overly broad coverage ... Incomplete certifications ... No exact count of use of FMLA leave ... No adjustment to sales expectations ... Being lax about FMLA abuse ... Overlooking the ADA." (Society for Human Resource Management [SHRM])  

EEOC v. Flambeau, Voluntary Plans, the Insurance Safe Harbor, and the Future of Wellness Programs
"A fundamental rule of statutory construction says that effect must be given, to the extent possible, to every word, clause and sentence of a statute. The thrust of the EEOC's position on voluntary wellness programs violates this basic standard of construction.... The words 'bona fide wellness program' must mean something. That they are used in the same statute as 'voluntary wellness program' signals that Congress intended to establish two different standards.... Sooner or later we expect that the Supreme Court will be called on to settle the matter. When it does, the Court's recent decision in Gobeille v. Liberty Mutual Insurance Company does not bode well for the EEOC." (Mintz Levin)  

New York Passes Nation's Most Generous Paid Family Leave Mandate
"Starting January 1, 2018, new parents in New York will have something to celebrate: paid parental leave. New York joins California, New Jersey, and Rhode Island as the latest state to mandate paid leave. That said, at 12 weeks paid time off, New York's leave is the most generous in the country, doubling the time California and New Jersey offer, and tripling that of Rhode Island's paid leave." (Treasury & Risk)  

How Mature Is Your Benefits Management?
"Paper-Based: The not-so-good old-fashioned way ... Compliance-Focused: Where many of us are today ... Consumer-Focused: Bringing benefits into the 21st century ... Insight-Driven: Where we strive to be." (Benefitfocus)  

OPM Will Give Health Insurance Companies New Rules for Reporting Cyberincidents
"The head of the Office of Personnel Management says the agency plans to issue new rules to health insurance companies that provide coverage for federal employees for reporting cybersecurity incidents.... Last year, both OPM and one of the biggest insurers in the FEHBP program -- Anthem Inc. -- were breached ... The OPM hack, disclosed last June, affected nearly 22 million federal employees, contractors, retirees and prospective employees." (Nextgov)  

[Opinion]

Resolving Zubik v. Burwell: Health Savings Accounts Could Be a Solution for Religious Employers
"The Court appears to be seeking a method by which religious employers can themselves not finance or be implicated in the provision of birth control while, at the same time, such contraception is provided through the insurance companies the employers engage to furnish health care coverage to their employees.... [T]here is such an approach: Any religious employer objecting to contraception should have the right to instead fund an independently-administered health savings account (HSA) or health reimbursement arrangement (HRA) for each of its employees.... Under this approach, an employee of a religious employer who desires extra prescription eyeglasses could use her HRA or HSA for that purpose -- while her co-worker could use that account to obtain birth control. In neither case would the religious employer participate in the employee's decision how to expend her health care account dollars." (Prof. Edward Zelinsky, OUPblog)  

Benefits in General

Top Five Employee Benefits and Executive Compensation Issues to Watch This Spring
"[1] Director compensation ... [2] Information reporting under the [ACA] ... [3] The final fiduciary regulation under Section 3(21) of [ERISA] ... [4] The pay ratio rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) ... [5] Fiduciary issues to consider when selecting ERISA service providers." (Practical Law Company)  

Executive Compensation and Nonqualified Plans

Say-on-Pay, the Golden Parachute, and Other Executive Compensation Issues (PDF)
18 pages. "In the aftermath of the 2008 financial crisis, compensation programs and practices have become the subject of intense regulatory and shareholder scrutiny. In light of the non-binding shareholder say-on-pay vote required by Dodd-Frank, as well as the other executive compensation provisions of Dodd-Frank that the SEC is in the process of implementing, public companies are enhancing both their proxy disclosures and their shareholder engagement efforts.... This [article] will discuss the new challenges facing executive compensation decision makers, and the strategies employed in response." (Shearman & Sterling LLP)  

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2016 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.

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