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[Guidance Overview]
Is Your Health Plan Covered Under the New Section 1557 Nondiscrimination Rules?
"If you sponsor a self-funded plan that applies for Retiree Drug Subsidy money under Medicare Part D, then you are a covered entity because you have a health program (i.e., self-funded medical plan) that receives federal financial assistance (i.e., Retiree Drug Subsidy).... If you sponsor a fully-insured health plan, while you may not be a covered entity, your insurer likely is a covered entity which means that there will likely be some plan design changes in your plan."
Graydon Head & Ritchey LLP
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[Guidance Overview]
Saint Paul Becomes Second Minnesota City to Mandate Paid Sick and Safe Time
"[C]overed employers must allow employees who work in Saint Paul to accrue one hour of sick and safe time for every 30 hours worked, up to 48 hours of sick and safe time each year. The Saint Paul Ordinance applies to private employers of all sizes, including employers with only one employee, as long as at least one employee works within Saint Paul city limits. The Saint Paul Ordinance does not exempt small businesses, but it provides them with more time to comply[.]"
Littler
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Ninth Circuit Finds Abuse of Discretion Due to Procedural, Substantive and Structural Flaws
"This recent 9th Circuit opinion offers a good overview of factors that might lead to a reversal of a claim denial even under the very forgiving abuse of discretion standard.... The Court noted that Providence did not follow important procedural requirements.... In assessing the substance of her claim. Providence continually asserted that the plaintiff's treatment was dental rather than medical. Yet, it provided no evidentiary basis for its decision.... [T]he Court concluded that a structural conflict of interest played a role in the benefits denial." [Yox v. Providence Health Plan, No. 14-35127 (9th Cir. Sept. 9, 2016; unpub.)]
Harmon on Health Plan Law
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California Court Finds That Discretionary Clauses in Health Insurance Policies Are Enforceable
"In 2011, the California legislature passed Insurance Code Section 10110.6 which bans the use of discretionary clauses in any ... [contract] that provides or funds life insurance or disability insurance coverage.... Judge Edward M. Chen of the United States District Court for the Northern District of California [recently] applied choice of law principles to find that New York law applied and also found that even if California law were to apply, Section 10110.6 does not apply to health insurance plans." [Bain v. United Healthcare [sic] Inc., 15-03305 (N.D. Cal. Aug. 30, 2016)]
Ogletree Deakins
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Consumer-Driven Health Plan Enrollees Spend 1.5 Times More Out-of-Pocket Than Those with Traditional Coverage
"Annual total spending on health care for the CDHP population was, on average, $520 less per capita than the non-CDHP population. In 2014, spending totaled $4,481 per CDHP person and $5,140 per non-CDHP person. Across the study period, people with CDHPs used around 10 percent fewer health care services than the non-CDHP population, and used even fewer brand prescriptions (20 percent fewer filled days than the non-CDHP population). On average, people with CDHPs spent $1,030 per person out of pocket annually on care, compared to $687 for the non-CDHP population."
Health Care Cost Institute
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Ten Questions for Employees to Ask About Their Health Plan Choices During Open Enrollment
"[1] Has your prescription drug coverage changed? ... [2] What is the status of health coverage for your working spouse or children? ... [3] Are my preferred doctors and other medical service providers still covered? ... [4] Have you taken steps to make health care costs more affordable for me? ... [5] Have you changed administrators for medical benefits? ... [6] Are you offering new or expanded options for receiving care that might be beneficial to me? ... [7] Have you added new or expanded voluntary benefits I might find valuable? ... [8] Does your wellness plan have new features that can help me manage my health or save me money? ... [9] Have you added or expanded coverage for complementary or alternative medical services? ... [10] Have you added or expanded the use of technology for delivering and managing my benefits?"
Willis Towers Watson
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The Impact of the Opioid Crisis on the Healthcare System: A Study of Privately Billed Services
24 pages. "The national aggregated dollar value of charges for opioid-related diagnoses, as well as of imputed allowed amounts for such diagnoses, rose over 1,000 percent from 2011 to 2015. In 2015, private payors' average costs for a patient diagnosed with opioid abuse or dependence were more than 550 percent higher -- almost $16,000 more per patient -- than the per-patient average cost based on all patients' claims."
FAIR Health
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CMS Sees No 2015 Risk Corridor Payouts But Contemplates Settling Insurer Lawsuits
"CMS [has] announced that ... all funds collected for 2015 will have to be devoted to paying out 2014 obligations.... CMS does not expect to have any money left over to make any payments from 2015 collections toward 2015 obligations.... The government will also ... continue to defend lawsuits that have been brought by insurers in the federal Court of Claims.... [S]ettling these cases may be a way to get funds to health plans owed money under the risk corridor program despite the failure of Congress to fully fund the program."
Health Affairs
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Obama, Insurers Meet to Discuss ACA Participation
"President Obama and senior administration officials met with leaders from insurance companies participating in [ACA] exchanges on [Sept. 12], underscoring the importance of their participation on the marketplace. The president also wrote a letter to all participating insurers in which he stressed the administration's commitment to working with them and discussed recent actions the White House has taken to improve the marketplace.... [This follows the Sept. 9 announcement by the CMS] that it anticipates that all risk corridor funds collected for 2015 will be used towards the remaining 2014 balance, meaning no funds will be available for 2015 payments."
Morning Consult
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GAO Report: Results of Undercover Enrollment Testing for the Federal Marketplace and a Selected State Marketplace for the 2016 Coverage Year
"[T]he health-care marketplaces' eligibility determination and enrollment processes remain vulnerable to fraud.... For four applications, to obtain 2016 subsidized coverage, GAO used identities from its 2014 testing that had previously obtained subsidized coverage. Although none of the fictitious applicants filed a 2014 tax return, all were approved for 2016 subsidies.... For eight applications, GAO used new fictitious identities to test verifications related to identity or citizenship/immigration status and, in each case, successfully obtained subsidized coverage."
U.S. Government Accountability Office [GAO]
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GAO Report: Final Results of Undercover Testing of the Federal Marketplace and Selected State Marketplaces for Coverage Year 2015
"Three of GAO's applications were approved for Medicaid, which was the health-care program for which GAO originally sought approval. In each case, GAO provided identity information that would not have matched Social Security Administration records.... For four, GAO was unable to obtain approval for Medicaid but was subsequently able to gain approval of subsidized health-plan coverage.... For one, GAO was unable to enroll into Medicaid, in California, because GAO declined to provide a Social Security number."
U.S. Government Accountability Office [GAO]
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Income, Poverty and Health Insurance Coverage in the U.S. in 2015
"The percentage of people without health insurance coverage for the entire 2015 calendar year was 9.1 percent, down from 10.4 percent in 2014. The number of people without health insurance declined to 29.0 million from 33.0 million over the period."
U.S. Census Bureau
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[Opinion]
This Chart May Be the ACA's Unraveling
"[T]he majority of the population, or 51%, says the ACA had no effect. But that is actually a very low number when one considers the fact that the ACA did not make any wholesale changes to the current employer, Medicare, or Medicaid markets.... Of these 49% opinionated Americans who say the ACA had an effect, 29%, or 3/5, believe the law has hurt them, with only 18% believing it has helped. This is jaw dropping."
Frenkel Benefits
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[Opinion]
ERIC Amicus Brief in Case Challenging Texas Restrictions on Telemedicine Providers (PDF)
40 pages. "The revised Rule 190.8 that the Texas Medical Board adopted in May 2015 (New Rule 90.8) is a market-protective rule designed to undermine the business model of direct care telemedicine.... New Rule 190.8 is not a 'fair and considered' response to any credible increased 'risks' associated with telemedicine.... What New Rule 190.8 actually does is remove the ability of telemedicine providers to offer basic treatment to patients, thereby making it difficult or impossible for telemedicine providers to compete with traditional office-based providers." [The case is Teledoc, Inc. v. Texas Medical Board, No. 16-50017 (5th Cir., brief filed Sept. 9, 2016).
The ERISA Industry Committee [ERIC]
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Benefits in General
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[Official Guidance]
Text of DOL FAQs for Participants and Beneficiaries Following the Louisiana Storms (PDF)
22 Q&As address issues for employees whose employers are closed or whose records are unreachable as a result of the Louisiana storms. The guidance addresses various plan administration issues for retirement and health plans, including employee and employer contributions or premium payments, benefit claims and payments, investment allocations, QDROs, COBRA, and how to locate a person to contact for purposes of benefit claims, applying for a participant loan, etc.
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]
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[Guidance Overview]
Companies Should Review Employee Agreements and Policies Following SEC's Aggressive Stance on Impediments to Whistleblowing
"Whether or not the SEC's asserted positions would ultimately prevail in court, in light of these settlements and the SEC's apparent enforcement position, employers should consider reviewing their policies, codes of conduct, and employee agreements to ensure that that they do not include provisions that the SEC may assert deter employees from coming forward with information about potential securities law violations. Even those companies not subject to the SEC's jurisdiction may wish to undertake such measures, as the SEC's stance is similar to that now taken by the [NLRB] and the [EEOC][.]"
Wilson Sonsini Goodrich & Rosati
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Executive Compensation and Nonqualified Plans
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The State of Regulation of Executive Compensation: How Did We Get Here?
"There have been various attempts throughout the years to regulate the amounts of executive compensation paid to CEOs and other executives. These attempts were largely reactive to down economic periods that resulted with many rank and file individuals losing their jobs ... While most of the mandates of Dodd-Frank relate to regulation through disclosure of pay, the attempt to regulate pay itself has come to fruition this summer."
Ballard Spahr LLP, via Legal Intelligencer
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Press Releases
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BenefitsLink.com, Inc.
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Lois Baker, J.D., President
David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager
BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2016 BenefitsLink.com, Inc. All materials
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