Health & Welfare Plans Newsletter

June 16, 2017

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[Official Guidance]

Text of FAQs on ACA Implementation, Part 38: Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act (PDF)
"[T]he Departments are again soliciting comments on the questions and issues listed above that were previously raised in [ACA] Implementation FAQs Part 34.... In addition, ... the Departments are soliciting comments on a draft model form that participants, enrollees, or their authorized representatives could -- but would not be required to -- use to request information from their health plan or issuer regarding NQTLs that may affect their MH/SUD benefits, or to obtain documentation after an adverse benefit determination involving MH/SUD benefits to support an appeal.... Q1: Does MHPAEA apply to any benefits a plan or issuer may offer for treatment of an eating disorder? " [Also available: Supporting Statement as submitted to OMB.]
U.S. Department of Health and Human Services [HHS], U.S. Department of Labor [DOL], and U.S. Department of the Treasury

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[Official Guidance]

OCR Cyber Attack Checklist for HIPAA Covered Entities and Business Associates (PDF)
"This guide explains, in brief, the steps for a HIPAA covered entity or its business associate (the entity) to take in response to a cyber-related security incident. In the event of a cyber attack or similar emergency an entity: [1] Must execute its response and mitigation procedures and contingency plans.... [2] Should report the crime to other law enforcement agencies ... [3] Should report all cyber threat indicators vii to federal and information -sharing and analysis organizations ... [4] Must report the breach to OCR as soon as possible, but no later than 60 days after the discovery of a breach affecting 500 or more individuals[.]" [Unnumbered and undated document, published online June 2017.]
U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

IRS Begins ACA Reporting Penalty Process
"Large employer reporting was required for 2015 and 2016, even if transition relief from ACA penalty taxes applied for 2015. The potential penalties can be very large ... Employers that failed to furnish Form 1095-C and file copies with Form 1094-C may receive the IRS notices ... known as Letter 5699 forms.... Employers that receive a Letter 5699 form will have only thirty days to complete and return the form[.]"
E is for ERISA

[Guidance Overview]

Arizona's Paid Sick Day Law
"If an employer's current paid sick leave is in excess of these requirements, it need not change company policy. Attention should be directed to the specific requirements including accrual and carry over ... The new law requires employers to keep employees up-to-date on the amount of earned paid sick time available, the amount of earned paid sick time taken to date in the year and the amount of pay received as earned paid sick time. These figures must be part of, or attached to, the employees' regular paychecks."
Dickinson Wright PLLC

Undisputed Evidence of COBRA Notice Procedures Defeats Claim of Non-Receipt
"The employer (in its role as health plan administrator) maintained that an election notice was timely sent, producing evidence that the employee was coded into the employer's database as 'COBRA-eligible,' that this information was transferred to the employer's [TPA], and that a notice was generated and printed within the required time period. In addition, the employer provided evidence of the TPA's mailing procedures, a copy of the employee's notice, and a report from the TPA showing the date on which the notice was mailed. Finally, the employer demonstrated that other recipients of notices mailed on the same day were able to successfully elect coverage and had not reported missing notices." [DeBene v. Baycare Health System, Inc., No. 16-12679 (11th Cir. May 31, 2017)]
Thomson Reuters / EBIA

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Taking Your Wellness Program from Good to Great
"Keep it fair for everyone.... Follow your leader.... Stretch your budget.... Pick the right wellness vendor.... Use your team's strengths.... Keep what works.... Take a broad approach.... Communication matters."
The Alliance

The Rise of the Group Health Insurance Captive
"Under [one] approach, the group captive consists of a series of 'fronted' captive cells that are sponsored by the commercial carrier from who the stop-loss coverage is purchased. Under the second approach, the group captive is separately maintained and subscribed to under an enabling state law. Both approaches accomplish the pooling of stop-loss coverage at the tranche of risk underwritten by the captive.... Group captives rest on a modestly reliable regulatory foundation. To be ideally positioned to withstand challenge, group captives would need to follow to the letter the steps outlined in [two DOL] advisory opinions[.]"
Mintz Levin

Fiduciary Reforms Will Impact Expanding HSA Market
"[T]he jury is actually still out regarding the question of whether the employers will become fiduciaries to their HSA-using employees. Advisers making investment recommendations for individuals using HSAs will likely take on some new level of fiduciary responsibility ... but as it pertains to an employer's own fiduciary exposure, [the] consensus within the industry is that the new regulations 'probably do not automatically require employers offering HSA plans to be considered fiduciaries.' "
planadviser

One of the Most Prestigious Brands in Medicine Is Jumping Into Obamacare
"Cleveland Clinic, a nonprofit academic medical center, is partnering with Oscar Health to sell individual insurance plans in five northeast Ohio counties. The plans will be available on the exchanges, where people can use government subsidies to purchase health coverage as well as off the exchanges, where people bear the full cost of their health coverage.... [T]he health plan will only include the Cleveland Clinic's network of providers, including its well-known main hospital, 10 regional hospitals and more than 150 outpatient clinics."
The Washington Post; subscription may be required

[Opinion]

Why Employers Need to Offer Retiree Healthcare Benefits
"An average 65-year-old couple today will need $265,000 to cover out-of-pocket healthcare expenses in retirement ... [E]mployers need to start thinking about retiree health -- and how it affects both employees and institutions -- today. Planning conversations with employees should include accounting for healthcare expenses as part of a comprehensive health and wealth strategy. And to further support their workforce, employers should consider providing retiree healthcare benefits as a part of their total benefits package."
Timothy E. Lane, via Employee Benefit News

Benefits in General

Fiduciary Obligations to Safeguard Plan Participants' Data
"Because benefit data includes participants' names, Social Security numbers, account information and PII, it is increasingly important for ERISA plan fiduciaries to acknowledge and act on their inherent responsibilities to secure online plan data from cyberattacks. Failure to do so would almost certainly be counter to the prudence standard by which ERISA fiduciaries are required to abide.... Given the broad scope of an ERISA fiduciary's obligation to act with prudence, it is in the best interest of all parties involved with ERISA plans to begin developing systems and procedures for properly handling and securing PII."
Trucker Huss

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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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