Health & Welfare Plans Newsletter

April 12, 2017

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Aspire Financial Services LLC
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Swerdlin & Company
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Webcasts and Conferences

DOL Fiduciary Rule Finds New Life in Rule Extension
April 20, 2017 WEBCAST
fi360

Will You Be Ready When the Auditor Knocks? Preparing for HIPAA and DOL Audits
April 27, 2017 in OH
Worldwide Employee Benefits Network [WEB] - Cleveland Chapter

Certificate Series Denver
July 24, 2017 in CO
International Foundation of Employee Benefit Plans [IFEBP]

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FBI Warns Healthcare Facilities about Cyber-Vulnerable FTP Servers
"Often a default setting, anonymous mode enables a user to access [a server that makes files available for download via file transfer protocol (FTP)] with a common username, either without using a password or by submitting a generic password or email address.... [C]ybercriminals are actively seeking out FTP servers in anonymous mode to access protected health information (PHI) and personally identifiable information (PII) in order to intimidate, harass or blackmail business owners, or to sell stolen information on the dark web."
BDO Center for Healthcare Excellence and Innovation

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A Diamond in the Rough (Part 2): What the Eleventh Circuit Said about FMLA Retaliation Claims
"If there is a performance problem, be sure to focus on performance while the employee is at work -- not what they are not accomplishing because of the leave.... [If] you find that the employee's job performance is not great, you may need to issue a warning or two before you terminate.... Put some distance between the leave and any ultimate employment action.... If someone's FMLA leave is 'contentious' -- maybe it was challenging, caused some operational problems, etc. -- look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected." [Diamond v. Hospice of Florida Keys, Inc., No. 15-15716 (11th Cir. Jan. 27, 2017; unpub.)]
Bradley Arant Boult Cummings LLP

Can New Type 2 Diabetes Treatments Reduce Benefit Plan Costs?
"A recent study by McMaster University scientists revealed that it may be possible to reverse Type 2 diabetes in some patients, and this condition, thought to be permanent, may actually be curable.... As insurers have implemented patient assistance programs for certain medical conditions for high-cost drugs, wouldn't it be natural to expand the program to include coaching for Type 2 diabetes? In theory, plan sponsors could provide a higher level of coverage for the drugs required for treatment of employees participating in the program."
Conduent

Help Contain Costs with a Benefit Claims Audit
"The plan sponsor ... has a fiduciary responsibility to regularly and proactively monitor the performance of its TPA ... A claims audit helps ensure the plan sponsor is protected.... During the audit process, a TPA is examined for its performance according to the contract and industry standards."
Moss Adams LLP

The Pet-Friendly Workplace: Results of the PAWrometer Survey (PDF)
"[W]hen asked to choose between [benefits such as pet-related PTO, pet bereavement and pawternity leave] and allowing pets in the workplace, most employees said they would prefer other pet-related benefits (51 percent) over allowing pets in the workplace (39 percent).... Millennials are significantly more likely to find value in the positive impact pets at work have on employees (73 percent) and the workplace (70 percent).... [M]ore than one-third of HR decision makers (34 percent) say at least one potential employee has declined an offer due to concerns about pet allergies."
Banfield Pet Hospital

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Employers Overwhelmingly Opposed to Additional Taxes on Employer-Provided Health Coverage
"92 percent of responding employers are against any policy that would tax workers, their families, and employers on a portion of health plan premiums.... [M]ore than 177 million Americans receive health insurance through an employer, and employers pay more than $668 billion annually to insure their employees."
Wolters Kluwer Law & Business

Treasury Inspector General Assesses ACA-Related Tax Issues
"As of October 28, 2016, the IRS had processed about 440,000 1094-B forms and 110 million 1095-C forms for 2015.... [TIGTA] determined that errors in scanning the paper forms resulted in missing data in 20 percent of the small sample of forms it reviewed. It further concluded that the IRS incorrectly identified a number of employers as large employers that in fact were not."
Health Affairs

DOL Review of Group Health Plan Filings Shows Decline in Percentage of Self-Insured
"The DOL noted that approximately 20,000 self-insured group health plans filing a 2014 Form 5500 were sponsored by a single employer, whereas some 1,100 plans were multiemployer plans. Moreover, self-insured group health plans filing Form 5500 covered approximately 33-million participants; 29 million of whom were active participants."
Wolters Kluwer Law & Business

Insurers Want Greater Certainty on Obamacare Subsidies
"Most insurers need to file their 2018 premium rate requests by June 21. Before then, insurers are focused on two main dates. First, government funding is set to expire April 28. Then, on May 22, the House and Trump administration are set to give a status update to a U.S. Court of Appeals about their lawsuit over the payments."
Morning Consult

ACA's Risk Adjustment Program Reduced Claims Costs Per Enrollee
"[F]or the 30 percent of insurers with the highest claims during [the first two years under the ACA[, there was a significant change. Before risk adjustment, claims for those insurers exceeded their premium revenues by $90-$397 per enrollee per month. After risk adjustment and reinsurance were factored in, that figure fell to $0-$49 per enrollee per month. Further, the reinsurance program will reimburse insurers for high-cost enrollees covered before 2017."
Wolters Kluwer

Benefits in General

Data Security: Nine Questions to Ask Your Current or Prospective Benefits Technology Provider
"[1] What is your company's security philosophy? ... [2] Do you have a security audit or attestation report on your company itself (not just a leased data center)? ... [3] Has the system been properly hardened? ... [4] Is all data stored in your database encrypted at rest? ... [5] Is all data in motion inside the network encrypted in transit? ... [6] Does your network provide warm failover as opposed to antiquated tape backups? ... [7] Is multi-factor authentication required for remote users to the internal network? ... [8] Do you have a team of security employees and a different team of compliance employees that concentrate only on those activities? ... [9] How often are your security and compliance systems audited, and by whom?"
Benefitfocus

When Close Is Not Close Enough: A Shift Towards Strict Compliance for ERISA Claim Procedures
"A string of cases in the Second Circuit Court of Appeals is putting ERISA claims administrators on notice that falling short of strict compliance with the [DOL's] claims and appeal regulations may cost administrators a deferential standard of review.... Under the DOL's final regulations governing disability benefit claims, if a plan fails to strictly comply with the new disability claims regulations, a claimant may file a civil suit under ERISA Section 502(a) immediately without exhausting the plan's administrative remedies and the plan administrator's benefit determination will be subject to de novo review.... [T]he recent cases offer some lessons about the types of violations that may cause a plan administrator to lose its deferential standard of review."
Trucker Huss

Ninth Circuit Says Violation of DOL Claim Regulations Can Result in a Loss of Deferential Standard of Review
"The appeals court stated that, while Reliance's failure to comply with ERISA's procedural requirements could not on its own justify an award of benefits under the LTD policy, it might alter the standard of review... The Ninth Circuit thus directed the district court on remand to determine whether the procedural violation caused Smith substantive harm such that de novo review of Reliance's decision would be appropriate. Absent a finding of substantive harm, the district court should apply an abuse of discretion standard, while according the procedural violation appropriate weight." [Haber v. Reliance Standard Life Ins. Co., No. 14-9566 (C.D. Cal. Aug. 4, 2016)]
Robinson & Cole LLP

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2017 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 those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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