Health & Welfare Plans Newsletter

November 4, 2016

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Senior Compliance Specialist, Retirement
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TPA Services, Inc.
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FMLA Fraud Finding Leads To Employer Court Victory
"[E]vidence demonstrated that the employer took its time, conducted a swift but thorough investigation, considered all possibilities, and then arrived at a reasonable conclusion based on objective information.... Employers often say that intermittent leave requests are among the most challenging problems they face.... One of the most effective [strategies], as demonstrated here, includes following up on changed or suspicious circumstances." [Sharif v. United Airlines, No. 15-1747 (4th Cir. Oct. 31, 2016)]
Fisher Phillips

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U.S. Employers Step Up Efforts to Manage Prescription Drug Costs
"With regard to specialty drugs, strategies growing in popularity include: [1] Evaluating specialty drug spend through the medical benefit instead of the pharmacy benefit. Today, 39% of employers have adopted this strategy, up from 26% in 2015; 82% will consider it by 2018. [2] Making changes to coverage to influence where and how specialty drugs are administered. Today, 19% of employers have made such changes; another 43% are considering them for 2018. [3] Establishing different copays for specialty drugs to promote the use of lower-cost alternatives such as biosimilars. Today, 18% of employers have done this, a number that could triple over the next two years."
Willis Towers Watson

ACA Section 1557 Nondiscrimination Rules for Employers
"While the regulation does not provide examples of discriminatory benefit designs, it does say that HHS' Office of Civil Rights will analyze 'whether a design feature is discriminatory on a case-by-case basis' using the 'facts and circumstances of a given scenario.' The final regulation became effective on July 18, 2016. However, HHS, in recognizing that some covered entities would have difficulty making changes to their plan's design in the middle of a plan year, ... allowed a delayed implementation for plan design changes until the first day of the first plan year beginning on or after January 1, 2017."
Corporate Synergies

Can an Employer Require That an Employee Submit FMLA Certification from a Specialist to Support the Need for FMLA Leave?
"Noting that [the employee's] primary care doctor 'repeatedly' referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was perfectly acceptable for the employer to request that the treating psychiatrist cure the ambiguities in the medical certification.... The court also found that the employer had the right to delay [the employee's] return for six days and require a more specific fitness-for-duty certification." [Bento v. City of Milford, No. 13:1385 (D. Conn. Sept. 30, 2016)]
FMLA Insights

The U.S. Paid Sick Leave Landscape
"[H]igher lower income individuals are more likely to delay care, whether insured or uninsured.... Uninsured respondents are also more likely to delay care.... For any income and for either insurance status, respondents without paid sick leave are more likely to delay care. This is consistent with the idea that the higher cost of care -- and not getting paid is a cost -- is a barrier to care.... 61% of workers have paid sick leave. White and Asian non-Hispanic workers are more likely than average to have such a benefit. Other races are less likely."
AcademyHealth

What Health Plans Need to Know About Millennial Customers
"Forty-five percent of doctors polled ... said the top difference between millennial patients and others is that millennials are more likely to challenge treatment recommendations than other patients. An additional 16% identified millennials' cost-consciousness as the biggest differentiator between them and other generations.... 28% said they expected millennials to drive the increased use of telemedicine. 27% said millennials would spur the proliferation of walk-in clinic settings. 24% said millennials would boost online scheduling and extended hours."
HealthLeaders Media

How Long Should You Have to Wait to See a Doctor?
"A 2014 Merritt-Hawkins survey of major cities found the wait time for a new patient to secure an office visit with a family physician took an average of 20 days (i.e. about three weeks). This ranged from a high of 66 days in Boston but only 5 days in Dallas. Wait times in Dallas ranged from 1 day to 10 days.... In the future, Texas patients who lack timely access to their regular physician may be stuck. The Texas Medical Board is trying to shut down telemedicine in Texas."
National Center for Policy Analysis Health Policy Blog

Public Option for U.S. Health Insurance Gains Visibility in Debate Over ACA
"A public option would involve a government-run health plan that would compete with private options offered on the health law's exchanges. It would be different from a so-called single-payer system under which a government-run national health insurance program would cover everyone."
The Wall Street Journal; subscription may be required

[Opinion]

Can We Stop the Obamacare Meltdown?
"First, increase the individual penalty so that young, healthy Americans will think twice about rolling the dice and opting out. Second, allow carriers the flexibility to sell insurance across state lines.... Also simplify HRA, HSA, and FSA rules so that people can better understand and use these products to help deal with affordability. Finally, get rid of minimum-value plans. This escape valve allows employers to skirt the rules."
Frenkel Benefits

[Opinion]

Time to Try New Approach to Health Insurance
"[T]he lesson to be learned here is that what sounds good in the ivory towers of academia and in the big cities may not play well along Main Street, in rural areas and among those who provide significant care to the poor. Those who already provide high-quality care will find it difficult (if not impossible) to qualify for quality payments, and those who treat the sickest patients and those with multiple chronic conditions and socioeconomic challenges will also experience difficulties."
American Journal of Managed Care

Benefits in General

[Official Guidance]

Text of IRS Disaster Notice VA-2016-08: Tax Relief for Victims of Hurricane Matthew in Commonwealth of Virginia
"Victims of Hurricane Matthew that took place beginning on October 7, 2016 in parts of Virginia may qualify for tax relief from the [IRS].... Individuals who reside or have a business in Chesapeake, Newport News, Norfolk and Virginia Beach cities may qualify for tax relief.... [C]ertain deadlines falling on or after October 7, 2016 and on or before March 15, 2017 have been postponed to March 15, 2017."
Internal Revenue Service [IRS]

DOL Releases Form 5500 for 2016 Plan Year
"No changes have been made to the main body of Form 5500; minor changes have been made to some Schedules.... It seems likely that the DOL is keeping changes to a minimum in anticipation of the significant modifications it has proposed to take effect beginning with 2019 plan year filings[.]"
Thomson Reuters / EBIA

Three Signs You've Outgrown Your Benefits Technology
"[1] You get asked the same simple benefit questions repeatedly.... Employees want easy ways to access the benefits information they need at the time they need it.... [2] Your workforce is more diverse than ever before, and regulatory issues are making benefit strategies more complicated.... Being on the leading edge of technology that can support creative benefit strategies should be the focus of your software provider.... [3] You communicate with your employees through broad HR announcements primarily via email or paper communication.... Targeted messaging to subsets of your workforce is the modern way to engage employees."
Benefitfocus

Executive Compensation and Nonqualified Plans

Action Items to Prepare for 2017 Proxy Season
"[1] The SEC is on high alert for non-GAAP financial disclosures, including in the executive compensation area, [2] Pay additional attention to your director compensation programs and disclosure this year, in light of litigation and a renewed media and investor focus, [3] This would be a very good time to review your compensation risk assessment process and disclosure, in light of recent events, and [4] Do not forget the Say on Pay Frequency Resolution this year."
Winston & Strawn LLP

2016 End of Year Plan Sponsor "To Do" List, Part 1: Executive Compensation
"Last chance to correct certain Section 409A document failures discovered in 2016 ... Nonqualified deferred compensation deferral elections should be made on or before December 31, 2016 ... Consider shareholder reapproval of section 162(m) performance compensation plans approved in 2012 ... Review whether your equity-based compensation plan has sufficient shares remaining for 2017 grants ... Consider adding separate annual limits on director equity awards ... Code section 6039 information statements due by January 31, 2017 ... Review grant procedures for upcoming equity-based grants ... Review confidentiality language in existing agreements ... Consider revising stock-based incentive programs in response to FASB's new approach to share-based withholding."
Snell & Wilmer

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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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