Health & Welfare Plans Newsletter

August 25, 2016

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Webcasts and Conferences

New FMLA Employer Guide Issued: Time to Check Your Policies and Practices
August 30, 2016 WEBCAST
HRWebAdvisor

Innovative Strategies for Open Enrollment
August 31, 2016 WEBCAST
Mercer

Fiduciary Education Workshops
September 21, 2016 in TX
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Employee Benefits Forum
September 29, 2016 in VA
Williams Mullen

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[Guidance Overview]

2016 Deadline for Medicare Part D Creditable/Non-Creditable Coverage Notices Nears (PDF)
"[P]lan sponsors that offer prescription drug coverage must provide notices of creditable or non-creditable coverage to Medicare-eligible individuals. The required notices may be provided in annual enrollment materials, separate mailings or electronically.... [P]lan sponsors ... must provide the required disclosures no later than October 14, 2016."
Xerox HR Services

[Advert.]

Changes to Cafeteria Plans: What You Need to Know to Prepare

Sponsored by Lorman and BenefitsLink

September 21 webinar. Explores design choices available within the regulatory framework established by the IRS, and provides tools to ensure that cafeteria plan design, documentation and administration are in compliance with applicable requirements.


[Guidance Overview]

Agencies Propose New, Expanded Form 5500 Group Health Plan Reporting (PDF)
"The DOL's proposed rule would eliminate the small-plan filing exemption, but would retain the existing exemption for this group to provide financial transaction information on the Form 5500 Schedule G.... Most notably, the proposed rule calls for all group health plans to file a new Schedule J (Group Health Plan Information). This Schedule seeks information to help the DOL improve oversight of plans' compliance with the [ACA] and other federal laws (e.g., portability under HIPAA, genetic nondiscrimination under GINA, mental health/substance abuse parity under MHPAEA), as well as to standardize data that can be used for research purposes."
Milliman

Key Arguments in Defending a Disability Claim Based on Subjective Complaints
"Judge Fitzgerald concluded that Haber was not entitled to benefits under the 'any occupation' standard. His analysis highlights many key arguments for an insurance company in the defense of a claim under [ERISA sec. 502(a)(1)(B)] that is based on subjective complaints. [1] The claimant has the burden of proof.... [2] The claimant's subjective complaints do not have to be accepted as credible.... [3] There was no objective support for the claim.... [4] The clinical history did not support the claim." [Haber v. Reliance Standard Life Ins. Co., No. 14-9566 (C.D. Cal. Aug. 4, 2016)]
Ogletree Deakins

Federal District Court Permits Plethora of Claims to Advance in Provider Reimbursement Litigation
"[A recent] case offers a survey of issues and potential claims in the health care provider reimbursement context.... [T]he case provides a toolbox for claimants who challenge health plan reimbursement practices. The court ruled favorably on the vast majority of claims on hearing the defendants' motion to dismiss." [MBody Minimally Invasive Surgery, P.C. v. United Healthcare Ins. Co., No. 14-2495 (S.D.N.Y. Aug. 16, 2016)]
Harmon on Health Plan Law

High Deductibles are Here to Stay -- Here's Why That's OK
"Putting a financial burden on enrollees helps them understand the true cost of care, says an executive at a healthcare financial management platform.... The trend to higher deductibles has been led mostly by employers ... High deductibles are here to stay ... because employers cannot meet the coverage mandates of the [ACA] without significantly cutting back on their employees' healthcare costs."
HealthLeaders Media

[Advert.]

Register for NBCH's 21st Annual Conference, Sept. 26-28 in Orlando

Sponsored by National Business Coalition on Health [NBCH]

This must-attend event convenes employers, health plans, providers, business health coalitions and other key stakeholders focused on the future of health care and benefits. Free admission for employers that are members of an NBCH coalition. Join us.


How Increased Cost Sharing Triggered the EpiPen Crisis
"[I]ncreased cost-sharing, and high deductible plans in particular, have exposed more consumers to price hikes that once would have been borne by payers. As parents fill prescriptions for fresh back-to-school supplies, they are being hit with the most recent increases, and they are complaining."
American Journal of Managed Care

States Start to Approve Steep Increases in Health Premiums
"Some insurance regulators have begun announcing their approval of rate increases, including an average jump of 62% for the biggest plan in Tennessee and increases of around 43% in Mississippi and 23% in Kentucky for large carriers."
The Wall Street Journal; subscription may be required

The Effect of Shopping and Premium Tax Credits on the Affordability of Marketplace Coverage
"[This brief examines] how the combination of tax credits and the opportunity to shop around for coverage through the Marketplace would protect consumers in a hypothetical scenario with much higher premium increases in the Marketplace than occurred last year... Focusing on a hypothetical scenario of a 25 percent increase in premiums for all Marketplace qualified health plans (QHPs) in HealthCare.gov states from 2016 to 2017 ... the overwhelming majority of Marketplace consumers would be able to purchase coverage for less than $75 per month, just as they could in 2016."
Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

New Analysis Shows Consumers Will Still Have Affordable Health Coverage Options Next Year
"[A] new HHS analysis finds that HealthCare.gov consumers would continue to have affordable coverage options, even if all Marketplace final health insurance premium rates were to increase by double digits next year.... Last year, more than 40% of returning HealthCare.gov consumers switched plans. They saved an average of $42 per month, or about $500 annually. Current Marketplace rates are well below initial Congressional Budget Office (CBO) projections."
U.S. Department of Health and Human Services [HHS]

ACA Marketplaces: Stressed but Fixable
"[S]olutions will be needed to maintain competition and choice for consumers, and make sure those who are eligible for coverage can get it. As the HHS analysis shows, robust enrollment is critical for keeping costs down.... 24 million working-age adults are still uninsured, with about half potentially eligible for subsidized marketplace coverage."
The Commonwealth Fund

[Opinion]

Telehealth Opportunity or Telehealth 'Parity'?
"It is hard to imagine a more harmful policy for the appropriate uptake of telemedicine than government-dictated payment parity. In some cases, patients might actually be willing to pay more for convenience. Of course, our third-party payment health system does not value convenience to patients in most cases, so we will never really know."
National Center for Policy Analysis Health Policy Blog

Benefits in General

Treasury Announces 2016-2017 Regulatory Agenda for Employee Benefits
A chart lists projects included on both Agencies' Agendas. "Projects added to the agendas since they were last published are shown in bold. There are 14 new IRS initiatives, and no new DOL initiatives.... [T]he section 280G guidance project is no longer on the IRS Business Plan."
Sutherland Asbill & Brennan LLP

California Court Says ERISA Preempts Physician's State Law Claim of Tortious Interference
"[Dr. Morris Silver's claim against a self-funded health plan] for interference with contractual relations [with his patients] is predicated on the EOB the Plan sent to policyholders stating the 'Total Patient Responsibility' for the amount charged by Silver was zero. Whether use of this EOB essentially constituted a tort -- a question with wide-ranging implications for any plan using a similar form -- is precisely the kind of decision that conflict preemption is intended to eliminate ... As such, this cause of action addresses an area of exclusive federal concern -- the manner in which adverse determinations are communicated to plan participants -- and directly affects the relationship between the plan and participants." [Morris B. Silver M.D., Inc. v. Int'l Longshore & Warehouse Union, No. B267941 (Cal. Ct. App. Aug. 22, 2016)]
Cary Kane ERISA Lawyer Blog

Preparing for Open Enrollment: How Is Your Benefits Tech Provider Helping You?
"[Y]our dedicated point of contact should be able to provide guidance on the best way to design your benefits platform for a streamlined enrollment experience.... Do you have complex eligibility rules? Varying employer contributions for flex benefits based on location and years of service? Provide all of this information to your vendor during your discovery meetings and let them advise the best way to design the benefits platform to meet your specific needs."
Benefitfocus

Executive Compensation and Nonqualified Plans

[Guidance Overview]

NYSE Clarifies Position That Amendment of Equity Incentive Plan to Allow Maximum Tax Withholding Is Not a Material Amendment
"[T]he NYSE has posted revised equity compensation FAQs on its website. Among the amendments is one to Question C-1, which clarifies that an amendment to allow the maximum tax withholding is not a material amendment. The same is true if forfeited but unissued shares are recycled back into the plan. If restricted shares that have been issued are recycled back into the plan, it is not a material amendment ONLY if those shares are forfeited rather than vesting."
Winston & Strawn LLP

Final IRS Section 83(b) Regs Ease Paper Filing Requirements with Income Tax Return
"A common mistake in employee compensation transactions is the failure of the employee to file the Internal Revenue Code Section 83(b) election with his or her Form 1040. Newly issued final regulations ... eliminate this Form 1040 requirement to submit a paper copy of the 83(b) election with the employee's income tax return."
Holland & Hart LLP

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

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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