BenefitsLink Health & Welfare Plans Newsletter for June 5, 2017

GOP Senators Mull Taxing Employer-Sponsored Health Plans
"Senate Republicans set on reworking the [ACA] are considering taxing employer-sponsored health insurance plans, a move that would meet stiff resistance from companies and potentially raise taxes on millions of people who get coverage on the job. The move could raise billions in revenue that could be used to help stabilize the fragile individual insurance market."
The Wall Street Journal; subscription may be required

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Trump Administration Appears Set to Reverse Rules for Contraceptive Coverage by Objecting Employers
"On May 30, 2017, a draft of an interim final rule ... addressing conscience-based objections to the coverage of contraceptives under the preventive services requirement of the [ACA], was leaked to the media. The draft seems authentic and has been widely reported in the media. However, the draft is currently at the Office of Management and Budget for review, and the interim final rule when released may be different from the draft."
Health Affairs

Fifth Circuit: SPD Was Enforceable Despite Referencing a Nonexistent Plan Document
"The spouse argued that the plan was not entitled to reimbursement after she settled the medical malpractice claim because the plan lacked an ERISA-compliant written instrument (that is, a plan document). The Fifth Circuit held that, in the absence of a separate written instrument, the plan's SPD could serve as the plan's written instrument under ERISA." [Rhea v. Alan Ritchey, Inc., No. 16-41032 (5th Cir. May 30, 2017)]
Thomson Reuters Practical Law

Quick Responses to Claimant's Typical Challenges to Disability Benefit Denials
"[T]he claims administrator determined Chen could perform a sedentary job and terminated benefits after 19 years.... The Court rejected Plaintiff's argument that Standard had made inconsistent prior decisions.... The Court rejected Plaintiff's argument that Standard had failed to consider the Social Security determination.... The Court rejected Plaintiff's argument that Standard 'cherry-picked' the record.... It is OK to consider Claimant's vacation travel to Europe, Hawaii in determining whether she is disabled." [Chen v. CenturyLink, No. 15-1651 (D. Col. May 18, 2017)]
Lane Powell PC

Employers Would Likely Foot the Bill for Trump's Parental Leave Plan
"According to Trump's proposal, the program would use the UI system as a base and expenses would be offset by reforms to that system. Those changes include reducing improper payments, helping unemployed workers find jobs more quickly, and -- most notably -- encouraging states 'to maintain reserves in their Unemployment Trust Fund accounts.' ... [A]ccording to the U.S. [DOL], many states depleted those trust funds during the recession.... To resolve that issue and also be able to take on new claimants, the administration would require states to increase their UI payroll taxes ... [In] most states, those taxes are paid solely by employers."
HRDailyAdvisor

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Pet Benefits on the Rise
"Pet-friendly employee benefits are ... continuing to rise in popularity. More and more employers are jumping at the idea of implementing pet-friendly policies at work due to the increasing interest from employees.... If you are considering implementing a pet policy at your office, there are a few things you should consider.... If you can't, or are just not ready to pull the trigger on allowing pets at the office, there are other animal-friendly benefits you can offer employees that they will appreciate."
Grooms Benefit Solutions

Aetna Says It May Move Out of Hartford
"Aetna Inc., whose founding more than 150 years ago helped turn Hartford, Connecticut, into the insurance capital of the U.S., is thinking about leaving. The health insurer is in negotiations with several states about relocating its headquarters, and will make a decision by early summer ... Aetna said the goal of the relocation is 'broadening our access to innovation and the talent that will fill knowledge economy-type positions.' "
Bloomberg

[Opinion]

ERISA: A Bipartisan Problem for the ACA and the AHCA
"[T]he ACA's attempt to create greater uniformity of benefits is at odds with the way ERISA creates a special class of protected plans and blocks states efforts to regulate them. When you ask yourself why the ACA's guarantee of essential health benefits applies to some health plans but not to others, the answer is deference to ERISA. When you ask yourself why some health plans are subject to state-mandated benefit laws but some remain exempt, the answer is ERISA.... [The authors] review the recent and upcoming ERISA jurisprudence below and conclude it is time for the Court, or Congress, to cabin ERISA's reach when it comes to health care."
Abbe R. Gluck, Allison K. Hoffman, and Peter D. Jacobson, via Health Affairs

[Opinion]

Obama's Overreach May Be Downfall of ACA
"Obama administration officials knew they were on shaky ground in spending billions of dollars on health insurance subsidies without clear authority. But they did not think a long-shot court challenge by House Republicans was cause for deep concern. For one thing, they would be out of office by the time a final ruling in the case, filed in 2014, was handed down. They also believed that a preliminary finding against the administration would ultimately be tossed out. Finally, they figured that President Hillary Clinton could take care of the problem, if necessary. Well, they are out of office, Mrs. Clinton is not president and the uncertain status of the cost-sharing payments now looms as the biggest threat to the stability of the insurance exchanges created under the [ACA]."
Carl Hulse, via The New York Times; subscription may be required

[Opinion]

The Senate Should Build Automatic Enrollment into Health Reform: Here's How
"[A]utomatically enrolling Americans eligible for tax credits into no-premium health plans should be an important component of a renewed effort at health reform. Many of the uninsured who do not make plan selections on their own can be enrolled into plans that provide true insurance against significant or catastrophic health events. Individuals who are auto-enrolled will have the opportunity to opt-out of that coverage if they prefer; they will also be given the opportunity to switch to a different plan during the next available open enrollment period.... [The authors] seek to address some of the administrative and related issues regarding how such a system might be built and implemented."
Lanhee Chen and James Capretta, in Health Affairs

Benefits in General

Does Your Plan Document Give Appropriate Discretion to the Plan Administrator?
"With the exception of the 5th Circuit, the Circuit Courts have unanimously interpreted Firestone such that when the plan document provides discretion to the plan administrator, the abuse of discretion standard of review applies to plan interpretations, factual determinations, and the application of the facts to the plan provisions. As illustrated by Ariana M. v. Humana Health Plan of Texas, Inc., the 5th Circuit Court of Appeals treats factual determinations differently.... The takeaway from Ariana is that ERISA plans should make it clear that the discretion afforded to the plan administrator applies to factual determinations, in addition to interpreting the plan provisions and applying the facts to the terms of the plan."
Graydon Head & Ritchey LLP

Bill Encourages Portable Benefits for Independent Workers
"The [DOL] would get new funds to encourage the development of portable benefits models for independent workers such as contractors, temporary workers, and self-employed workers ... The Portable Benefits for Independent Workers Pilot Program Act authorizes a total of $20 million for competitive grants to states, local governments, and nonprofits for pilot projects to design, implement, and evaluate new models or assess and improve existing benefit programs that allow workers to maintain benefits when changing jobs."
Mercer

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Must Employer Tell Employee on Workers Comp About Potential Eligibility for LTD Benefit?
"What is the obligation of an employer to notify an employee who is collecting workers' compensation benefits that the employee may be eligible for a benefit under the employer's long-term disability plan?"
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Press Releases

Lincoln Offers Morningstar's New 3(38) Fiduciary Service
Lincoln Financial Group

Pensionmark Partners With Fiduciary Retirement Advisory Group
Pensionmark

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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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