BenefitsLink Health & Welfare Plans Newsletter for June 9, 2017

Text of CMS Request for Comments on Reducing Regulatory Burdens Imposed by the ACA and Improving Healthcare Choices to Empower Patients (PDF)
"HHS is interested in soliciting public comments about changes to existing regulations or guidance, or other actions within HHS 's authority, that could further the following goals with respect to the individual and small group health insurance markets : [1] Empowering patients and promoting consumer choice.... [2] Stabilizing the individual, small group, and non-traditional health insurance markets.... [3] Enhancing affordability.... [4] Affirming the traditional regulatory authority of the States in regulating the business of health insurance."
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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Nurse Fired for Violating Dual Employment Policy While on Extended Leave Can't Advance FMLA Claims
"A nurse who was granted extended medical leave after her FMLA leave expired but was discharged when the hospital learned that she violated the leave policy's prohibition against dual employment by working elsewhere without permission failed to defeat summary judgment on her FMLA interference and retaliation claims. A federal court in Maryland determined that the hospital's denial of light duty did not constitute FMLA interference, she could not have reasonably considered herself to have been terminated at that point, and she failed to present evidence suggesting the decision to fire her due to her dual employment while on leave was pretextual." [Ibewuike v. Johns Hopkins Hospital, No. 15-1630 (D. Md. May 17, 2017)]
Wolters Kluwer Law & Business

Don't Overlook 2018 Change in 'Affordability' Safe Harbor Percentage
"For plan years beginning in 2018, employer-sponsored coverage will be considered affordable if an employee's required contribution for self-only coverage does not exceed 9.56 percent of the employee's household income for the year (down from 9.69 percent in 2017)."
Society for Human Resource Management [SHRM]

HHS Secretary Dodges Specifics on Obamacare Payments to Insurers
"[HHS] Secretary Tom Price defended the need to overhaul the [ACA] but didn't offer new ways the administration would give insurance companies much-needed answers during his testimony to a Senate panel [June 8].... But Price declined to answer Sen. Debbie Stabenow (D-Mich.) on whether the administration plans to reimburse cost-sharing reduction payments to insurers -- though he later confirmed the HHS budget request for the next fiscal year includes funding for the payments."
Morning Consult

CMS Issues Final Market Stabilization Rules (PDF)
"The final regulations include many of the provisions covered by the proposed rules. This [article] summarizes the final changes to Marketplace administration and coverage including: [1] Changes to the de minimis range in determining metal coverage tier; [2] Documentation required for midyear special enrollment; [3] Changes to open enrollment time period for 2018; [4] Ability to collect past due premiums."
Marsh & McLennan Agency LLC

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CMS Outlines Pre-Enrollment SEP Verification Process
"[CMS] has released a slide deck describing in greater detail the process that they intend to use for pre-enrollment verification of special enrollment period (SEP) eligibility. CMS has also begun sending out Medicare periodic data matching notices to consumers enrolled in both Medicare and a marketplace plan, but those notices may be misleading."
Timothy Jost, in Health Affairs

[Opinion]

Why Not Try 'Medicare for All'? ... Glad You Asked
"Because costs will spiral out of control. Because hospital care will suffer. Because the stakes are too high for a mass experiment."
Megan McArdle, via Bloomberg

Benefits in General

[Guidance Overview]

DOL Withdraws Independent Contractor and Joint Employer Guidance
"The rescinded [Administrator's Interpretations (AIs)] -- a 2015 AI addressing the tests for employee/independent contractor classification and a 2016 AI addressing joint employment liability -- deliberately pushed the envelope in favor of expanding liability under the [FLSA]. The DOL's independent contractor AI, for example, concluded that 'most workers are employees' and advocated for a revised 'economic realities test' for employee/contractor status that tipped the scales decidedly in favor of employee status. Later in 2016, the DOL similarly articulated a broad view of joint employer coverage -- even in situations where little or no traditional indicia of control exists between two entities. Both AIs were withdrawn, effective immediately upon the DOL's June 7 announcement."
Morgan Lewis

Executive Compensation
and Nonqualified Plans

How Long Should Former Employees Have to Exercise Stock Options?
"As Uber has recently discovered, having an exercise window that is too brief can leave former employees unable to purchase stock and disincentivize current employees.... Most start-ups provide around 90 days for ex-employees to exercise their options."
Butterfield Schechter LLP

Discussions on
the BenefitsLink Message Boards

Schedule C Required for Health Plan Using Stop-Loss Policy?
"The employer's health plan has more than 100 participants and uses a stop-loss policy. The employer received a Schedule C from the insurance carrier. The employer doesn't need to complete the Schedule C because the plan has no trust fund, correct?"
BenefitsLink Message Boards

Tax Consequences for Failure to Satisfy Section 125 Nondiscrimination Test
"Section 125 plan fails the Key Employee 25% benefit test despite a couple of mid-year tests. Has one key employee, who deferred $10,000. Under the test, the Key should have deferred no more than $9,000. Is the entire $10,000 taxable to the Key, or only the $1,000 excess? Now, if the answer is the entire $10,000, is there a 'real life' fix if the problem is caught before the end of January (i.e. the W-2 could simply show $9,000 as a contribution/deferral, and the other $1,000 would show up as normal W-2 taxable income)?"
BenefitsLink Message Boards

Press Releases

EPIC Receives Multiple Honors from 2017 Communicator Awards
EPIC

New Website Brings Fiduciary Rule Implementation Resources to Financial Professionals’ Fingertips
Insured Retirement Institute [IRI]

View All Press Releases

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Lois Baker, J.D., President
David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager

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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