Health & Welfare Plans Newsletter

October 28, 2016

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Employee Benefits Jobs


Webcasts and Conferences

Plan Documents: ERISA, Section 125, SPDs and Wraps, Oh My!
November 1, 2016 WEBCAST
Cowden Associates, Inc.

Startup Company Carve-Out Plans: Mechanics, Tax Obstacles, and Optimization
November 2, 2016 WEBCAST
Practical Law Company

Complying with the ACA and Best Practices in Worksite Smoking Cessation Programs
November 14, 2016 WEBCAST
Midwest Business Group on Health

2016 Winter Virtual Conference
December 8, 2016 WEBCAST
ASPPA [American Society of Pension Professionals & Actuaries]

Ethical Considerations for the Employee Benefits Practitioner
December 15, 2016 WEBCAST
ABA Joint Committee on Employee Benefits [JCEB]

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[Official Guidance]

Text of IRS Pub. 5223: General Rules and Specifications for ACA Substitute Forms 1095-A, 1094-B, 1095-B, 1094-C, and 1095-C (PDF)
23 pages. "The purpose of this publication is to set forth the 2016 requirements for: [1] Using official [IRS] forms to file information returns with the IRS, [2] Preparing acceptable substitutes of the official IRS forms to file information returns with the IRS, and [3] Using official or acceptable substitute forms to furnish information to recipients."
Internal Revenue Service [IRS]

[Advert.]

5th Annual Telehealth and Remote Patient Monitoring Summit - Jan. 25-26, 2017 - Atlanta, GA

Sponsored by World Congress

Telehealth execs discuss engaging providers & consumers in digital health to optimize ROI & improve population health. Promo Code BLINK2 takes $200 off your registration (May not combine w any other offer. Not valid twd Govt Rate/Workshop Only/Webcast)


[Official Guidance]

Text of Agency Final Regs: Excepted Benefits; Lifetime and Annual Limits; and Short-Term, Limited-Duration Insurance
48 pages. "This document contains final regulations regarding the definition of short-term, limited-duration insurance for purposes of the exclusion from the definition of individual health insurance coverage, and standards for travel insurance and supplemental health insurance coverage to be considered excepted benefits. This document also amends a reference in the final regulations relating to the prohibition on lifetime and annual dollar limits."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Internal Revenue Service [IRS]; and Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Official Guidance]

Text of Agency FAQs on ACA Implementation, Part 34: ACA and Mental Health and Substance Use Disorder Parity Implementation (PDF)
14 pages; 9 Q&As plus a comment request. "[T]he Departments request specific comments on: Whether issuance of model forms that could be used by participants and their representatives to request information with respect to various [nonquantitative treatment limitations (NQTLs)] would be helpful.... Whether issuance of model forms that could be used by States as part of their review would be helpful and, if so, what content should the model form include? ... [Q:] For all medical and surgical inpatient, in-network admissions, my plan also requires prior authorization but it is conducted over the phone without an in-person examination. Is this in-person prior authorization requirement for mental health inpatient admissions permissible? ... [Q:] [U]nlike medical/surgical benefits for which the requirements can be satisfied by programs offered in my geographic area, no intensive outpatient programs are available to treat my substance use disorder in my geographic area. I alerted my plan that no outpatient program is available in my geographic area, but the plan indicated that there are no exceptions. Is this permissible? ... [Q:] Although there are prescription drugs to treat medical/surgical conditions that have similar safety risks, my plan does not impose similar prior authorization requirements on those drugs. Is this permissible? ... [Q:] Is an exclusion of court-ordered treatment for substance use disorders permissible under MHPAEA for a plan or coverage that does not exclude court-ordered treatment for medical/surgical conditions?"
(U.S. Department of Labor [DOL], U.S. Department of Health and Human Services [HHS], and U.S. Treasury Department)

[Guidance Overview]

EEOC, DOL, HHS and IRS Weigh-In on Employer-Sponsored Wellness Programs -- Is Your Program Compliant?
"[U]nlike the HIPAA nondiscrimination rules that only apply to health-contingent wellness programs that are part of a group health plan, the new EEOC rules apply more broadly to all wellness programs regardless of whether they are part of a group health plan or a stand-alone wellness program and apply to both participatory and health-contingent wellness programs."
Dechert

AARP Sues EEOC to Block New ADA Wellness Regs: What's an Employer to Do?
"Before you think the AARP is taking the employer's side here, and is complaining that the rules are unduly burdensome to employers, think again. According to AARP, the EEOC's 30 percent threshold is too high. In fact, so high that employee participation in these programs is not 'voluntary.' According to AARP, the EEOC wellness rules 'enable employers to pressure employees to divulge their own confidential health information and the confidential genetic information of their spouses as part of an employee "wellness" program.' As such, the AARP argues the EEOC rules also violate federal laws governing protection of confidential medical information." [AARP v. EEOC, No. 16-02113 (D.D.C., complaint filed Oct. 24, 2016)]
Lockton

Reimbursement Claims for Student Athlete Injuries Unauthorized by ERISA
"The trustee's assertion that the restitution-based theories are rooted in equity failed to persuade the appellate court because U.S. Supreme Court precedent requires more than an equitable basis -- there must be identifiable funds. Further, the appellate court noted that six other appellate circuits have reviewed nearly identical lawsuits filed on behalf of the plan and each concluded that the relief sought was legal rather than equitable." [Central States, Se. and Sw. Areas Health and Welfare Fund v. American Int'l Group, Inc., No. 15-2237 (7th Cir. Oct. 24, 2016)]
Wolters Kluwer

Mental Health and Substance Use Disorder Parity Task Force Releases Final Report and Supporting Materials
"Other Task Force activities are being announced along with the release of the Final Report: ... [1] [A] web site designed to help consumers find the appropriate Federal or State agency to assist with their parity complaints, appeals, or other actions.... [2] [CMS] is awarding $9.3 million to States to help insurance regulators monitor compliance with the mental health and substance use disorder parity protections.... [3] [A] Consumer Guide ... to help consumers understand what type of information to ask for when inquiring about a plan's compliance with parity and to explain the various Federal disclosure laws that also require disclosure of information related to parity."
U.S. Department of Health and Human Services [HHS]

Final Report of the Mental Health and Substance Use Disorder Parity Task Force (PDF)
34 pages. "[S]ections of this report provide background on key developments in parity, explain what MHPAEA and the ACA require, discuss the impact of recent parity policy changes, and offer an overview of enforcement activities to date. Next, the report will discuss the work of the Task Force and describe the input received in listening sessions, meetings and via the more than 1,100 written comments submitted to the Task Force. Finally, the Task Force offers recommendations to advance parity in mental health and substance use disorder health benefits."
Interagency Mental Health and Substance Use Disorder Parity Task Force

Court Determines Employer's Severance Plan is Subject to ERISA
"In reviewing the facts, the Fifth Circuit found that, due to the large size of the plans (i.e., covering more than 10,000 employees), ongoing administrative activity was required by the employer. Moreover, the Fifth Circuit found that eligibility determinations and benefit calculations (involving detailed formulas and offsets) under the plans required ongoing administrative activity by the employer. As a result, the Fifth Circuit upheld the lower court's determination that ERISA governed the plans and the plaintiff's lawsuit." [Gomez v. Ericsson, Inc., No. 15-41479 (5th Cir. July 8, 2016)]
The Wagner Law Group

Fewer Choices and Higher Premiums in the ACA Exchanges
"In the starkest illustration of this lack of choice and competition, 5 states have only one insurer in the entire exchange this year: Alaska, Alabama, Oklahoma, South Carolina, and Wyoming. Two other states are in virtually the same position. Arizona, which made headlines earlier this year when it looked like Pinal County may end up with zero options on the exchange, has only one insurer in every county but one. North Carolina has only one insurer in 95 percent of its counties."
Cato Institute

Examining High Prescription Drug Spending for People with Employer-Sponsored Health Insurance
"Average retail drug spending in employer plans held relatively steady from 2004 to 2013, ranging from $909 in 2004 to $947 in 2013 (adjusted for inflation), before growing 13.0% in 2014 to $1,053 per enrollee.... [R]etail prescription drug spending does, however, represent a larger share of total employer insurance benefits (21%) than retail drugs represent as a share of total national health spending (10%), so growth in prescription drug spending may have a relatively large effect on employer-sponsored health insurance premiums."
The Peterson Center on Healthcare and the Kaiser Family Foundation

Millions Buying Insurance Outside Exchanges Amid Obamacare Woes
"The big downside to shopping off the exchanges is that customers would not receive insurance subsidies. But for customers who wouldn't qualify for subsidies anyway, shopping off the exchanges potentially gives them more options -- including, in some cases, cheaper plans.... But off-market shoppers often have more options in plans. The estimated number of insurance providers available on the exchanges for next year is 167, a net decrease of 68."
FOX News

Feds Block Medicare 'Seamless Conversions', Will Issue New Rules for Plans Who Make the Switches
"Under current rules, an insurer can transfer customers who have purchased policies through an [ACA] insurance exchange or other commercial plans when they become eligible for Medicare, typically at age 65. An insurer must give an individual 60 days' advance written notice of the switch; if a person doesn't opt out, that enrollment takes effect automatically. But some seniors and advocates say such notices can easily be missed in the deluge of mailings from companies trying to entice newly eligible seniors to join their Medicare Advantage plans."
Healthcare Finance News

Benefits in General

[Official Guidance]

Text of DOL Compliance Guidance for Employee Benefit Plans in Wake of Hurricane Matthew, Related Disruptions
"[1] The department will not treat any person as having violated the provisions of Title I of ERISA solely because they complied with the [relief from certain verification procedures] of the IRS announcement.... [2] The department recognizes that some employers and service providers ... located in identified covered disaster areas will not be able to forward participant payments and withholdings to employee pension benefit plans within the prescribed timeframe.... [3] The regulations provide an exception to the advance notice requirement when the inability to provide the [blackout] notice is due to events beyond the reasonable control of the plan administrator and a fiduciary so determines in writing.... [4] [P]lan participants and beneficiaries may encounter ... difficulties meeting certain deadlines for filing benefit claims and COBRA elections.... Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

The Unfortunate Truth About Your SPDs (PDF)
"Because the SPD is a reference tool for the participant, it is essential that it be an effective one. To do this, the SPD needs to meet two requirements: [1] A participant must be able to find the information he or she wants quickly and easily. [2] Once the information is found, it has to be easily understood by the participant."
Bryan, Pendleton, Swats and McAllister, Llc

Executive Compensation and Nonqualified Plans

Proposed Deferred Compensation Plan Rules May Aid Tax-Exempt Hospitals
"Under the proposed regulations, an executive can agree to defer a portion of his or her compensation to a later year in return for an agreement to provide two years of substantial services or an agreement not to compete with the nonprofit for two years. Additionally, the proposed regulations require the compensation paid out to equal more than 125 percent of the amount that the executive agreed to defer."
Bloomberg BNA

Press Releases

DOL Resolves Lawsuit to Restore Funds Owed to Dell Inc. Retirement Plan in Monticello, Minnesota
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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