Health & Welfare Plans Newsletter

May 12, 2016 logo logo LinkedIn logo Twitter logo Facebook logo
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Webcasts and Conferences

Affordable Care Act Information Returns Corrections Process
(IRS [Internal Revenue Service])

Practical Corrections Series 05: Plan Loan Failures
May 17, 2016 WEBCAST
(FIS Relius Education)

Fundamentals Series 12: Participant Loans
May 23, 2016 WEBCAST
(FIS Relius Education)

Practical Corrections Series 06: Testing Failures: ADP/ACP, 415, 402(g)
May 24, 2016 WEBCAST
(FIS Relius Education)

Nuts and Bolts of Section 409A: Practical Issues to Consider in Every Practice
June 9, 2016 WEBCAST
(ABA Joint Committee on Employee Benefits [JCEB])

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[Guidance Overview]

EEOC Issues New Guidance on Leave of Absence and ADA Accommodations
"There are certain requirements under the FMLA an employee must meet in order to be eligible for and entitled to leave, while the ADA has no such eligibility requirements. What qualifies as a 'serious health condition' under the FMLA may not make the same employee a 'qualified individual with a disability' under the ADA. However, in spite of these differences, some employees will be a qualified individual with a disability and also an eligible employee entitled to FMLA leave, which requires the employer to comply with both statutes simultaneously." (McAfee & Taft)  


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[Guidance Overview]

EEOC Releases New Guidance on Unpaid Leave as a Reasonable Accommodation Under the ADA
"The guidance ... makes clear that employers must not only provide employees with disabilities access to leave as an accommodation on the same basis as similarly situated employees without disabilities, but may be required to modify its policies to provide leave for a disability even where the employer does not offer leave to other employees. The guidance also addresses common issues for employers including analyzing undue hardship, requests for 'indefinite' leave, maximum leave policies, and return to work issues, including so-called '100% healed' policies and reassignment." (Proskauer's Law and the Workplace)  

ACA Reporting: Complexities of the IRS Electronic Filing Process
"[F]iling electronically is not a straightforward process -- registration and testing are required and the IRS is requiring approved software to be used to prepare and transmit returns. The filing process can be time consuming; even vendors who are electronically filing for clients are still having issues with their filing systems and many vendors are no longer accepting new clients because they cannot handle the load. This is a sign for employers who plan to electronically file themselves -- get the registration and testing process started now as it may take longer than you think." (Frost Brown Todd LLC)  

Near-Site Health Centers: The Next Frontier
"32% of large employers currently have onsite or near-site health centers; 4% are planning to implement them in 2016 and another 12% are considering them for 2017 or 2018 ... Employers ... believe that these onsite resources are highly effective at increasing employee access to convenient health services (95% strongly agree), decreasing employee time away from work (94%), and delivering and promoting screening and preventive services (90%). Moreover, 62% of employers believe the centers reduce or moderate medical trend." (Willis Towers Watson)  

50-State Survey on Telemental Health Laws in the United States
"[T]he survey details the rapid growth of telemental health -- mental health care delivered via interactive audio or video, computer programs, or mobile applications -- and the increasingly complex legal issues associated with this trend. Additionally, the survey provides one source for state-by-state coverage of legal issues related to telemental health, such as: Definitions of 'telehealth' or 'telemedicine'; Licensure requirements; Governing bodies; Reimbursement and coverage issues; The establishment of the provider-patient relationship; Provider prescribing authority; Accepted modalities for delivery (e.g., telephone, video) to meet standards of care." (Epstein Becker Green; free registration required to download survey report)  


ECFC: Advancing Healthcare Consumerism

Sponsored by ECFC [Employers Council on Flexible Compensation]

In its 35th year, ECFC is the leading organization promoting choice in benefit solutions by working together through education and advocacy to put a consumer-driven account into the hands of everyone. To join, visit

Your Vanishing Health Coverage: Employers Are Cutting Retiree Health Benefits at a Rapid Rate
"[A]mong large firms that offer active workers health coverage, the percentage that also offer retiree health plans has shrunk to 23% in 2015 from 66% in 1988. The decline, which has been steady and almost unbroken, almost certainly reflects the rising cost of healthcare and employers' diminishing sense of responsibility for long-term workers in retirement." (Los Angeles Times)  

State Retiree Health Plan Spending (PDF)
50 pages. "States' OPEB liabilities decreased 10 percent, to $627 billion, between 2010 and 2013, after adjusting for inflation.... States' actual expenditures for OPEB totaled $18.4 billion in 2013 ... If states had instead set aside the amount suggested by actuaries to pay for OPEB liabilities, their total payments that year would have more than doubled to $48 billion ... and spending to fully fund OPEB obligations would have outpaced what states contributed to active state employee health premiums." (The Pew Charitable Trusts)  

Insights from the 2016 ACA Marketplace, and a Look Ahead to 2017
"Carriers made adjustments in 2016 to reduce their exposure to high costs.... Regional variation in prices narrowed.... Price variation within markets increased.... Large regional differences in plan design persist.... More regulated markets have higher premiums and lower deductibles.... More product changes are likely.... Premium prices will further converge.... Weaker markets may face more challenges." (Robert Wood Johnson Foundation)  

HHS Issues 2017 Insurance Marketplace Guidance
"The federally facilitated marketplace will be discontinuing [advance premium tax credits (APTCs)] and cost-sharing reductions for enrollees who were automatically enrolled in 2015 and 2016 but who have not updated their information, don't update their information for 2017 by Dec. 15 ... and for whom there is no tax return information for 2014 or 2015 ... [F]or the 2015 filing season about 1.5 million taxpayers who needed to file tax returns to reconcile their APTCs hadn't done so, and the taxpayers who had filed returns reported receiving $11.3 billion in APTCs of the approximately $15.5 billion the marketplaces paid out in 2014[.]" (Bloomberg BNA)  

Annual Health Insurance Estimates: Uninsured Rate for Working-Age Adults Decreases in Majority of Counties
"The estimated uninsured rate for working-age adults (age 18-64) decreased in 72.1 percent of the nation's counties (or 2,262 counties) from 2013 to 2014 ... For the total population under age 65, the estimated uninsured rate decreased in 74.1 percent of counties (or 2,325 counties) between 2013 and 2014. There were no statistically significant changes in 25.9 percent of counties, and only one county experienced an increase in its uninsured rate." (U.S. Census Bureau)  

Missouri Will Soon Be Able to Review, Evaluate Health Insurance Premiums
"[T]he measure represents a significant step for Missouri, which was one of a few states that lacked an effective rate review program.... For plans starting Jan. 1, 2018, the legislation requires health insurance carriers offering small group and individual plans to submit rates with the Missouri Department of Insurance, Financial Institutions & Professional Registration. The department then will have 60 days to review the rates and determine whether the pricing is reasonable or unreasonable. If it's deemed unreasonable, the department will have to explain its reasoning in a written letter to the insurance carrier, who can voluntarily change its pricing." (  


Congressional Brief: NCPA Health Reform Agenda (PDF)
"Congress should repeal the ACA regulations that prevent insurers from fully adjusting individual premium rates to reflect known health risks. Instead, Congress should restore the right to renew coverage if an applicant has maintained insurance with no gaps of more than 63 days (COBRA) and insurers should be allowed to sell multiyear coverage.... Those who lack access to health coverage at work should have access to a defined tax credit that provides a comparable amount of tax relief as employer-provided health benefits for a middle-income family.... Flexible Spending Account (FSA) holders should be allowed to rollover their unused funds into Health Savings Accounts (HSAs). HSAs should be expanded to allow for larger contributions." (National Center for Policy Analysis [NCPA])  

Benefits in General

[Guidance Overview]

New EU Data Privacy Regulation May Impact U.S. Benefit Plan Administrators (PDF)
"US plan administrators may need to comply with the Data Privacy Regulation if the plan administrator gathers, processes, or has another entity gather or process personal data of individuals in the EU and it is determined that the processing is related to the offering of goods or services to EU residents.... [P]rocessing data in connection with the offering of pension or welfare benefits to EU residents could be deemed to be in connection with the offering of services ... [It] appears likely that administrators of both pension and welfare plans will be deemed to gather or process some personal data if any plan participant or beneficiary resides in the EU." (Groom Law Group)  

[Guidance Overview]

IRS Extends Prohibition on Treating Partners as Employees
"Characterizing employees as self-employed has potentially significant implications, in that self-employed individuals ... [1] Are ineligible to participate in 'cafeteria' or Section 125 flexible spending and dependent care programs; [2] Have the full cost of employer-provided health insurance and life insurance included in income ... [3] Are prohibited from taking loans from tax-qualified retirement plans; [4] May be unable to defer certain compensation for tax purposes under 'nonqualified deferred compensation' programs." (Latham & Watkins)  

[Guidance Overview]

IRS Regs Provide That Certain Employees of Partnerships Now Have Self-Employment Status for Employee Benefit and Tax Purposes
"The regulations are intended to clarify that where the partners are separately working for [a second, wholly owned] legal entity, such individuals may not be treated as employees, and must be treated as self-employed individuals for both self-employment and employee benefit plan purposes. As a result, the partners may not be provided the tax benefits provided employees with respect to benefit plans such as cafeteria plans, parking and transit benefits, health benefits and health insurance." (McDermott Will & Emery)  

Executive Compensation and Nonqualified Plans

[Guidance Overview]

Federal Regulators Re-propose Joint Rule on Incentive-Based Compensation Arrangements at Large Financial Institutions (PDF)
15 pages. "[T]he proposed rule would prohibit covered institutions from awarding incentive-based compensation that is believed to encourage in appropriate risks and would impose mandatory deferral and clawback provisions. It would also require such institutions to disclose certain information regarding the structure of their incentive -based compensation arrangements to the applicable regulator." (Sidley Austin LLP)  

Beware the Vested Salary Continuation Trap in Drafting Employment Agreements
"Experienced and capable chief executives can be hard to find, particularly when it comes to leadership positions of a limited duration ... [so] it is understandable that the executive would want the agreement to contain protections against the premature or unanticipated termination of the contract by the hiring agency.... [But some contracts simply] provide that upon the expiration or termination of the contract by either party (and for whatever reason), the executive will continue to receive 'salary continuation' for the specified period. Unless these payments are properly structured as a 'bona fide severance pay plan' under IRC section 457(e)(11) -- that is, payable only upon the unanticipated termination of employment -- the executive and the agency likely have an income tax (or income tax reporting) problem." (Chang Ruthenberg & Long PC)  

Press Releases

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2016, 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, 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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