Health & Welfare Plans Newsletter

July 12, 2016

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Senior Director, Client Management Services
OneAmerica
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United Retirement Plan Consultants
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Webcasts and Conferences

What Employers Need to Understand About the New Fiduciary Rules
July 27, 2016 WEBCAST
(FIS Relius Education)

Merger and Acquisitions: Coming Together for Retirement
August 3, 2016 WEBCAST
(ASPPA [American Society of Pension Professionals & Actuaries])

Fiduciary Rule
August 17, 2016 WEBCAST
(National Association of Government Defined Contribution Administrators [NAGDCA])

Voluntary Fiduciary Correction Program and Abandoned Plan Workshop
August 31, 2016 in KY
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

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[Guidance Overview]

Employers Wonder How to Respond to Marketplace Notices
"Employers deciding to appeal the Marketplace determinations should bear in mind that an employee's status as part-time or the fact that an employee is in a measurement period (or any other fact besides being covered or offered affordable minimum value coverage) is irrelevant to the Marketplace's determination. Therefore, such facts are not the basis for appealing a Marketplace determination. Instead, those facts would be the basis for appealing an IRS determination that an applicable large employer owes shared responsibility penalties and such employers are well-advised to make sure they have the documentation necessary to provide evidence of those facts regardless of whether they decide to appeal." (Jackson Lewis P.C.)  


[Advert.]

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Sponsored by Wolters Kluwer

Earn CE credits while learning about the latest news and industry trends and your ftwilliam.com software!



[Guidance Overview]

Exchange Subsidy Notices: Prelude to ACA Tax Assessments
"Each notice will identify one or more employees who received subsidies in 2016, and if the names include those of full-time employees who were offered affordable, minimum value or higher coverage (or enrolled in coverage, even if unaffordable) for the period involved, an appeal is appropriate and must be made within 90 days of the date on the exchange subsidy notice.... ALEs should keep in mind that coverage that is unaffordable for exchange purposes (i.e. entitles an individual to exchange subsidies) may be affordable for employer safe harbor/penalty assessment purposes (i.e., prevents assessment of an ACA employer penalty tax). They both use the same affordability percentage -- 9.66% in 2016 -- but apply it to different base amounts." (E is for ERISA)  

[Guidance Overview]

IRS Releases Proposed Regs Regarding ACA Calculation of Coverage Affordability for Employers Offering Opt-Out Payments
"The most notable employer impact created by these proposed regulations is a new requirement that an employer who offers cash-in-lieu must maintain an 'eligible opt-out arrangement' to avoid increasing an employee's premium contribution by the cash amount when it calculates affordability for the employer mandate. The requirements for an 'eligible opt-out arrangement' are more stringent than the conditional opt-out arrangement contemplated by IRS Notice 2015-87." (Liebert Cassidy Whitmore)  

[Guidance Overview]

Navigating the Wellness Program Maze
"[T]he first step in reviewing your wellness program is to identify the laws and the provisions of the laws that apply.... [An accompanying Wellness Program Review Chart] provides a description of basic wellness program characteristics and identifies applicable laws and includes consideration of the application of the Internal Revenue Code for taxation of rewards.... The next step is to identify the most restrictive limitation of the applicable laws." (Calfee, Halter & Griswold LLP)  

[Guidance Overview]

More Q&As on the New Los Angeles Paid Sick Leave Ordinance
"The sick time benefits rules apply on July 1, 2017, for employers that qualify for the one-year small business deferral. Both sick time and minimum wage requirements for employers with 25 or fewer employees begin on July 1, 2017.... Unused paid sick leave time accrued by an employee, regardless of front-loading or accrual method, must be carried over and may be capped at a minimum of 72 hours.... To qualify as a 'large employer,' does an employer need to have 26 employees working in the city or 26 total employees anywhere (i.e., nationwide)? ... [An] employer will look to the number of employees who are working or who worked in the city of Los Angeles only." (Ogletree Deakins)  


[Advert.]

Don't miss Private Exchange FORUM Baltimore Sept. 8-9

Sponsored by Institute for Healthcare Consumerism [IHC]

Learn the latest compliance and regulatory issues around the private exchange market at the IHC's Private Exchange FORUM Baltimore. PEX Baltimore will be held at the Renaissance Harborplace hotel in Baltimore, MD Sept. 8-9. Register here for free.



Survey Finds Concerns About GASB's OPEB Accounting Changes, Yet Relatively Few Actions Taken to Mitigate the Impact (PDF)
11 pages. "A large percentage (57 percent) [of responding jurisdictions] have either completed, nearly completed or partially implemented a Medicare Advantage group waiver plan for their Medicare eligible retirees, but only a few have considered or are acting on eliminating retiree health benefits entirely. Also, about 30 percent of the responding jurisdictions indicated that they are moving toward a defined contribution funding approach for retiree health benefits." (Segal Consulting)  

First HIPAA Settlement Involving a Business Associate: A Cautionary Tale
"A business associate without access to large amounts of PHI, using widely available cost-per-record calculators, might conclude that it faces little financial exposure from the breach of a few hundreds or thousands of records and direct its cyber risk management investments accordingly. [A recent] enforcement action reflects OCR's desire to change that calculus, so that business associates give considerable weight to measures that will help make the breach of any PHI less likely." (William Gallagher Associates)  

Cigna Ordered to Pay More Than $13 Million in Out-of-Network Healthcare Provider Billing Dispute
"The court's decision relied primarily on two findings. First, the court determined that Cigna improperly applied the 'exclusionary language' contained in the plans it administered. Second, the court determined that Cigna failed to establish that the relevant language in the plan documents created a constructive trust or equitable lien." [Connecticut General Life Ins. Co. v. Humble Surgical Hospital, No. 4:13-cv-3291 (S.D. Tex. June 1, 2016)] (Baker Botts LLP)  

The Use and Impact of Health Care Price Transparency: Where Are We, and Where Do We Go from Here? (PDF)
"[1] Consumer demand for and availability of price information is growing, but many consumers do not use price comparison tools when they are available, and use of transparency tools did not significantly reduce consumer health spending or total health expenditures. [2] Although previous research has suggested that clinicians reduce their ordering rates when they are given information on prices, the current RWJF studies found no overall change in ordering rates when pricing information was displayed on physicians' ordering screens at the point of care. [3] The consolidation of health care markets appears to have significant effects on health prices, and market power is associated with higher prices." (Robert Wood Johnson Foundation)  

Risk Adjustment and CO-OP Financial Status
"While many carriers have lost money in the ACA marketplace, most are able to draw from profitable lines of business to cover losses. The co-ops lack such options, and primarily respond by resorting to federal credit in the form of surplus notes. Yet, the supply of this credit is rapidly dwindling, and co-ops face many limitations in their ability to raise additional capital. There is no sustainable path forward that does not involve profitability, and for many, this seems far from being achieved." (Robert Wood Johnson Foundation)  

IRS Taxpayer Watchdog on Agency's Implementation of ACA: 'Commendable,' But Work Remains
"The [National Taxpayer Advocate Service (TAS)] reports a dramatic increase in premium tax credit cases, where some sort of problem or issue occurred, for FY 2016 over FY 2015, with 8,887 cases as of the end of May 2016.... The TAS urges the IRS to respond directly with employers as they attempt to determine whether or not they offer minimum essential coverage (MEC) and whether particular employers are full-time employees who must be offered MEC ... TAS recommends again, as it did last year, that Congress amend the tax law to allow the IRS to use the taxpayer information number matching program to verify information reported by employers and insurers on health coverage." (Health Affairs)  

[Opinion]

U.S. Health Care Reform: Progress to Date and Next Steps
"Policy makers should build on progress made by the [ACA] by continuing to implement the Health Insurance Marketplaces and delivery system reform, increasing federal financial assistance for Marketplace enrollees, introducing a public plan option in areas lacking individual market competition, and taking actions to reduce prescription drug costs. Although partisanship and special interest opposition remain, experience with the [ACA] demonstrates that positive change is achievable on some of the nation's most complex challenges." (Barack Obama, JD, in JAMA)  

Benefits in General

Severance Plan Was Subject to ERISA, and Properly Denied Benefits to Employee Who Didn't Return Deleted Files
"Affirming summary judgment against an employee who was denied severance pay because he failed to return company property, the Fifth Circuit first held that ERISA governed the severance plans because they required more than a single lump-sum payment but involved ongoing plan administration and discretionary decisions on eligibility and amount of pay. On the merits, the appeals court agreed with the lower court that the plan allowed the employer to deny severance benefits on the ground that the employee failed to return company property (the deleted computer files) upon termination." [Gomez v. Ericsson, Inc., No. 15-41479 (5th Cir. July 8, 2016)] (Wolters Kluwer Law & Business)  

Executive Compensation and Nonqualified Plans

[Guidance Overview]

New Proposed Regs Issued Under Section 409A
"Some commentators had expressed concerns about the administrative impracticability of making timely payments of death benefits ... The Proposed Regulations add payment timing flexibility by providing that an amount payable due to the death of a service provider or his or her beneficiary that is to be paid at any time during the period beginning on the date of death and ending on December 31 of the calendar year immediately following the year of death ... will be treated as timely paid for purposes of Section 409A if it is paid at any time during this period." (Wilson Sonsini Goodrich & Rosati)  

[Guidance Overview]

The 409A Proposed Regs: Clarifying Guidance for Employers (PDF)
"[A] noncompliant plan term may be amended in a manner permitted under applicable correction guidance even though the noncompliant plan term may not have been eligible for correction under that guidance (for example, due to applicable timing requirements). In addition, the portion of the unvested amount that is affected by the correction is not subject to income inclusion, additional taxes, or applicable premium interest, and the IRS does not need to be notified of the correction." (Drinker Biddle)  

[Guidance Overview]

New IRS Regs Under Sec. 409A
"One common sense tweak made by the regulations is to clarify that stock awards made to prospective service providers still may qualify for the important 'stock rights' exception to 409A. This would apply to a service provider who is reasonably anticipated to begin providing services within 12 months after the grant date, if the person actually begins providing services during that 12-month period (or the award lapses if services do not commence by the deadline). Note that a service provider may be an employee, non-employee director, or an entity." (Winston & Strawn LLP)  

Press Releases

PSCA Announces New Directors
PSCA [Plan Sponsor Council of America]

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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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