Health & Welfare Plans Newsletter

September 22, 2016

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ACA Nondiscrimination Rule and EEOC Wellness Requirements
September 28, 2016 WEBCAST
Morgan Lewis & Bockius LLP

Using Your Brain to Win
October 4, 2016 WEBCAST
ASPPA [American Society of Pension Professionals & Actuaries]

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[Guidance Overview]

Do ALEs Have to Report Under Code Section 6056 If They Qualify for Transition Relief from W-2 Reporting?
"[Applicable large employers (ALEs)] are subject to Code section 6056 reporting (requiring information about the coverage offered to full-time employees and dependents), regardless of size. In other words, even smaller ALEs must report using Forms 1094-C and 1095-C. Generally, an ALE is an employer who employed (along with members of its controlled group) an average of at least 50 full-time employees (including full-time equivalent employees) during the preceding calendar year. Thus, if you are an ALE for 2016, you must report under Code section 6056 in early 2017 even if you are exempt from reporting cost information on Form W-2."
Thomson Reuters / EBIA

[Advert.]

October Certificate Series in Boston - Last Call to Register!

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

The Certificate Series offers comprehensive educational opportunities in each area of total compensation. Take a single course in a specific area or take three courses to earn a Certificate of Achievement in the discipline of your choice. Learn More!


ACA Reporting Failures, AIRTN500 Error Messages, and Incorrect or Missing Taxpayer Identification Numbers: What's an Employer to Do?
"This post endeavors to explain how employers and carriers ought to handle missing or incorrect TINs under these proposed rules.... A footnote in the preamble appears to address the question of whether the receipt of an [AIR system] error message triggers the obligation to file a corrected reporting forms and issue corrected statements.... There is some disagreement among the commentators as to what this footnote means[.]"
Mintz Levin

ACA Employer Compliance: Changes in 2017 Looming
"In addition to implementation of new regulations, employers entering the second year of compliance with ACA reporting requirements won't have some of the good faith and transitional relief that was available for 2015 reporting."
Bloomberg BNA

The Latest Win for Wellness Programs May Be More of a Win for the EEOC
"[T]his court concluded that it must defer to the EEOC's interpretation of its rulemaking authority, determined that the EEOC's interpretation to be reasonable, and agreed with the EEOC that the new regulation can be applied retroactively as a clarification. Further, the court declined to adopt the holdings of Seff and Flambeau, and concluded the ADA's safe harbor did not apply in any event because wellness programs are 'unrelated to basic underwriting and risk classification.' In addition, Orion's group health plan description did not include the wellness initiative, which the court used as further evidence that the program was independent from the group health plan. As a result, the ADA safe harbor was found not to apply to this wellness program." [EEOC v. Orion Energy Systems, Inc., No. 14-1019 (E.D. Wis. Sept. 19, 2016)]
Kilpatrick Townsend

Low Healthcare Literacy Means High Costs for Health Plans
"Insurers are missing the opportunity to educate consumers about the need for preventive care and options that can control costs for them but also the health plan, like going to an urgent care clinic or using telemedicine instead of going to an emergency room, she says. Most people do not know that they can shop around for the best price on prescriptions, for instance, assuming that all pharmacies charge the same amount."
HealthLeaders Media

[Advert.]

Now is a great time to join Worldwide Employee Benefits Network (WEB)

Sponsored by WEB - Worldwide Employee Benefits Network

WEB members represent more than 25 professions and 30 areas of expertise within the pension and benefits industry-including administrators, consultants, attorneys, accountants, investment managers, communications experts and benefits managers. Join today.


Benefits Communication: Three Things the Most Effective Emails Do
"[P]eople do judge emails by their subject lines.... Shrinking attention spans have made 'less is more' the supreme credo of email communication.... Wrap up your message with a call to action that answers the 'Now what?' for employees and gives them an easy way to respond to the information in the email."
Benefitfocus

Should Weeks of FMLA Leave Be Used to Calculate Vacation Benefits?
"Generally, ... employers are not required to allow employees to accrue vacation and sick leave during an unpaid FMLA leave.... However, employees on FMLA leave must be treated the same as employees on other types of leave with respect to the accrual of seniority and other benefits.... Therefore, if you require an employee, or the employee elects, to use paid time off for FMLA leave, then the employee is entitled to accrue vacation during the paid portion of FMLA leave on the same basis as the employer allows vacation accrual under other types of paid leaves."
HR Daily Advisor

It Costs $30 to Make a DIY EpiPen, and Here's the Proof
"The recent furor over the drug company Mylan jacking up the price of lifesaving EpiPens has brought out the biohackers. A team of DIY enthusiasts calling themselves Four Thieves Vinegar have published plans that will allow anyone to build a device to self-inject epinephrine on the cheap.... The pharmaceutical company Mylan, which is the only manufacturer of the device, was recently shown to have raised the prices of a single device from $57 to $318 -- that's a 461 percent increase -- since acquiring rights to it in 2007."
MIT Technology Review

CBO Analysis of Health Care Spending and Policy Proposals
36 presentation slides. "This presentation describes CBO's general approach to policy analysis and its role in supporting the Congress; summarizes several elements of the agency's projections of health care spending; and reviews examples of policy proposals and approaches affecting health care that CBO has analyzed recently."
Congressional Budget Office [CBO]

[Opinion]

How the Administration's Executive Actions Sabotaged Obamacare
"Out of desperation to ensure as many people as possible signed up for health insurance, the Obama administration has arbitrarily suspended onerous mandates, modified coverage requirements and extended enrollment periods. These illegal, ad hoc changes to the ACA ... have unintentionally, but foreseeably, weakened the exchanges during the pivotal first three years."
Josh Blackman in The Washington Post; subscription may be required

[Opinion]

ERIC Comment Letter to CMS: Inappropriate Steering of Individuals to Individual Market Plans (PDF)
"[ERIC believes] that similar practices and problems are adversely affecting those enrolled in, and sponsoring, plans outside of Medicare and Medicaid. As such, we request that HHS considers what policies and strategies might provide relief to those individuals outside of public programs as well.... These comments will detail several examples of situations in which we believe increased oversight and possibly new regulations are needed to protect the rights and care of beneficiaries in both public programs and private health insurance."
The ERISA Industry Committee [ERIC]

Benefits in General

[Official Guidance]

Text of DOL Notice of Extension of Comment Period on Proposed Changes to Annual Information Return/Reports (Form 5500)
"The comment period for the Notice of Proposed Revision of Annual Information Return/Reports and the Notice of Proposed Rulemaking is extended to December 5, 2016.... The Agencies are not prepared at this time to grant a more extended deadline for public comments on the proposed form revisions and regulatory amendments because of concern about potential adverse effects on the timing and cost of the EFAST2 recompete process.... The deadline for capable businesses to respond on the Request for Industry Feedback is not being extended in this Notice.... It is not clear at this time that a public hearing will necessarily contribute to the decision-making process by clarifying one or more significant issues affecting the proposal, but the Agencies will be in a better position to evaluate that issue after receiving the public comments on the proposals. Similarly, the issue of the effective date of final form changes is better addressed in a final notice of form revisions after the Agencies have had the benefit of public input on the proposals and have decided upon the final form changes and regulatory amendments that will be adopted."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

In the Ninth Circuit, a New Burden of Proof for Employers in Benefits Litigation
"For employers facing benefits litigation in the Ninth Circuit, the burden-shifting rule announced in this decision may be a game-changer. On remand, if the participant can make a prima facie case that he is entitled to benefits, the defendants will bear the burden of production regarding whether the participant worked sufficient hours for participating employers. This determination would involve records from several decades ago. As the dissenting judge notes, the plan administrator in this case could therefore be forced to provide benefits to the participant even though it did not abuse its discretion under established ERISA caselaw." [Estate of Barton v. ADT Security Serv. Pension Plan, No. 13-56379 (9th Cir. Apr. 21, 2016; rehearing en banc denied Sept. 20, 2016)]
Practical Law Company

Company Stock Plans Are a Valued Benefit, But Risks Should Be Understood
"16 percent of employees say company stock is their most important employer-provided benefit, up from 10 percent in 2014.... Almost two-thirds of employees (63 percent) said that participating in their company stock plan gives them a sense of ownership of the company, and 53 percent said it makes them feel more loyal to their employer. Nearly half of employees (49 percent) said that a company stock plan is an important factor when considering a new job."
Society for Human Resource Management [SHRM]

Press Releases

DOL Announces More Than $150K in Research Grants to Expand Portable Retirement Savings Plans for Low-wage Workers
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

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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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