Health & Welfare Plans Newsletter

September 14, 2016

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Webcasts and Conferences

2016 Legislative & Regulatory Updates
October 11, 2016 WEBCAST
ECFC [Employers Council on Flexible Compensation]

Employee Benefit Plans of Tax-Exempt and Governmental Employers
October 20, 2016 in DC
American Law Institute Continuing Legal Education Group [ALI CLE]

403(b) Masters Summit
January 25, 2017 in AZ
National Tax-Deferred Savings Association [NTSA]

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[Official Guidance]

Text of OCR's Estimate of the Top 15 Languages Spoken by Individuals with Limited English Proficiency (PDF)
17 pages. "Covered entities may use this information to implement the tagline requirement ... of the Section 1557 rule ... although nothing in the rule requires a covered entity to use this particular resource. For more information about this resource and the data used, refer to the Frequently Asked Questions on these topics." [Estimates are provided for each each State, U.S. Territory, and the District of Columbia.]
U.S. Department of Health and Human Services [HHS]

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[Official Guidance]

Text of OCR FAQs on Estimate of the Top 15 Languages Spoken by Individuals with Limited English Proficiency
9 Q&As, including: "Regulations implementing Section 1557 of the ACA require each covered entity to 'post taglines in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant State or States.' What are these languages in each State? ... What data did OCR use to compile its list of the top 15 languages spoken by individuals with LEP in each of the 50 States, the District of Columbia, and Puerto Rico? ... What data did OCR use to compile its estimates of the top languages spoken by individuals with LEP for each of the U.S. Territories, other than Puerto Rico? ... Did OCR make any technical adjustments to the data? ... Why do some of the States on OCR's list have more than 15 languages listed? ... In OCR's list, why are there significantly fewer than 15 languages listed for each of the U.S. Territories other than Puerto Rico? ... Some languages listed in the table that OCR has made available have more than one spoken or written dialect, which means that the grammar, vocabulary, pronunciation, or usage may differ for the same language. For these languages, into which dialects did OCR translate its sample taglines and other materials?"
U.S. Department of Health and Human Services [HHS]

Employer Who Self-Administered Life Insurance Plan Held Liable for Coverage Provided in Error
"The employee ... increased supplemental coverage over the years beyond the level at which coverage was available without evidence of insurability [EOI]. However, the employee was never sent the EOI form and the EOI form was never completed.... The court found that the employer breached its fiduciary duty by administering the plan in a way that allowed the employee to believe incorrectly that coverage was in place, particularly when the employee had paid premiums for the coverage for a number of years.... The employer will have to pay ... $314,000." [Van Loo v. Cajun Operating Co. dba Church's Chicken, No. 14-10604 (E.D. Mich June 6, 2016)]
Stinson Leonard Street

House of Representatives v. Burwell and the Congressional Standing to Sue (PDF)
"This report begins by examining areas in which the courts have provided relatively definitive analysis regarding congressional standing.... The report then describes and analyzes the district court's ruling on standing in Burwell, in which the court determined that the House had suffered an injury sufficient to establish standing on one of its two claims. Finally, it addresses unresolved questions raised by the reasoning developed in Burwell and how it may be applied in future cases." [Report No. R44450, Sept. 12, 2016]
Congressional Research Service [CRS]

Employer-Sponsored Family Health Premium 2016 Costs
"For the first time, half (51 percent) of all covered workers face deductibles of at least $1,000 annually for single coverage. This includes two thirds (65 percent) of workers at small firms (three-199 workers), who typically face higher deductibles than workers at large firms (200 or more workers)."
Health Affairs

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Employers to Shift Focus Away from Health Plan Cost-Cutting in 2017
Employers project that per-employee health benefit cost will rise by an average of 4.0% next year after they make planned changes Underlying cost growth has also slowed -- cost would rise 5.5% if employers made no changes.... The difference between the underlying cost growth and the actual cost growth can be an indication of how much or little employers are cutting health plan value by raising deductibles or other cost-sharing provisions. A difference of just 1.5 percentage points for 2017 suggests employers do not plan to do much cost-shifting."
Mercer

Premiums and Worker Contributions Among Workers Covered by Employer-Sponsored Coverage, 1999-2016
"Since 1999, the Employer Health Benefits Survey has documented trends in the employer-sponsored health insurance market. Every year, about two thousand private and non-federal public employers with three or more employees have completed the full survey. Among other topics, the survey asks firms for the premium or full per-person cost of their health coverage as well as the share that workers are responsible for. [This graphing tool] allows users to look at changes in premiums and worker contributions for covered workers at different types of firms over time."
Henry J. Kaiser Family Foundation

Employer Costs Slow; Consumers Use Less Care, Deductibles Soar
"Average premiums for employer-sponsored family coverage rose 3.4 percent for 2016, down from annual increases of nearly twice that much before 2011 and double digits in the early 2000s ... But 3.4 percent is still faster than recent economic growth, which determines the country's long-run ability to afford health care. And the tame premium increases obscure out-of-pocket costs that are being loaded on employees in the form of higher deductibles and copayments."
Kaiser Health News

Gap Insurance Takes Sting Out of High-Deductible Health Plans
"Gap plans, used to cover out-of-pocket expenses like high deductibles, are becoming increasingly popular among consumers and businesses.... With monthly premiums on health insurance going up, more people are choosing cheaper, high-deductible options. In 2016, more than 90 percent of people buying insurance under the ACA chose plans with an average deductible of $3,000 or higher."
National Public Radio

New Jersey Obamacare CO-OP to Close in 2017
"New Jersey's consumer oriented and operated healthcare plan, Health Republic Insurance, announced [Sept. 12] it would not offer plans in 2017. The departure means that 17 out of the 23 Obamacare co-ops have shut down after spending $1.8 billion in taxpayer funding.... The action means that all 26,000 customers will have to find a new plan at the beginning of the year."
Washington Examiner

Community Health Options, One of Few Remaining CO-OPs, Backs Out of New Hampshire
"Community Health Options is the latest insurer to withdraw from the exchange market citing financial losses. It drew attention two years ago as the only [ACA] co-op to be making money from its exchange products, reporting a net income of $7.3 million in 2014."
Healthcare Finance News

GAO Testimony: Results of Recent Undercover Testing for Patient Protection and ACA Coverage, and Review of Market Concentration in the Private Insurance Markets (PDF)
16 pages. "[This] statement will summarize the findings of three recently issued reports and will [1] describe the results of our undercover testing of eligibility and enrollment controls for the federal Health Insurance Marketplace and selected state-based marketplaces for the 2015 and 2016 coverage years, and [2] discuss findings from our review of private health-insurance market concentration in three markets: individual, small-group, and large-group."
U.S. Government Accountability Office [GAO]

[Opinion]

The Time for Telehealth Is Now
"Today, almost all mobile and desktop computing devices are equipped with webcams capable of capturing high-definition video and sound quality. This innovation -- combined with broadband Internet connectivity that now extends across 80 percent of the United States, including the growing population who have online access only through their mobile device -- seems to be overcoming the technology obstacle previously associated to telehealth."
Jeffrey C. Bauer, for HFMA

[Opinion]

EpiPen: A Case Study In Health Insurance Failure
"This is an extreme example of a coupon strategy used by some drug makers: Immunize the patient from the direct cost of the medicine so the health insurer has to pay a price much higher than the market can bear. Of course, the insurer might get a discount from the list price, but the uninsured patient will never benefit from that."
National Center for Policy Analysis Health Policy Blog

Benefits in General

The Centre Barely Holds: ERISA Preemption After Gobeille v. Liberty Mutual (PDF)
"The multiple opinions generated by [Gobeille] demonstrate the ambiguity of current Supreme Court jurisprudence on ERISA preemption. Perhaps more troubling is the extent to which the differing opinions reach differing conclusions while relying on the same established standards, suggesting that the standards simply cannot provide accurate prescriptive guidance to either lower courts or practitioners."
Stephen Rosenberg of the Wagner Law Group, in Tax Management Compensation Planning Journal

Executive Compensation and Nonqualified Plans

Ninth Circuit Holds SOX 304 Clawback Applies to Executives that are Not at Fault
"The Ninth Circuit recently held that Section 304 of the Sarbanes-Oxley Act allows for a clawback of certain CEO and CFO compensation regardless of whether the clawback was triggered by the personal misconduct of such officers. District courts have reached this conclusion before, but the Ninth Circuit appears to be the first circuit to adopt such a view." [SEC v. Jensen, No. 14-55221 (9th Cir. Aug. 31, 2016)]
Mintz Levin

Legislation Affecting Executive Compensation Likely to Be Reintroduced
"While much of the congressional focus has been on health care this session, executive compensation has not been totally ignored -- it just hasn't received as much media attention. [This article describes] several pending bills not expected to be enacted this year, but likely to be reintroduced in the 2017-2018 legislative session. Many of the provisions are revenue-raisers likely to remain under discussion regardless of the outcome of the November elections."
Willis Towers Watson

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