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Team Lead / 401(k) Pension Administrator
Nicholas Pension Consultants
in CA

Administration Department Manager
Dedicated Defined Benefit Services
in CA

Business Analyst
Newport Group
in CA

Retirement Operations Specialist
Alerus Financial
in MN

Document and Design Specialist
OneAmerica Financial Partners, Inc
in IN

Plan Administrator
Newport Group
in CA, VA

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[Guidance Overview]

DOL Releases Draft Model Form for Mental Health Parity Disclosure Requests
"The form [issued on June 16] requests information on factors, methods, and analyses used to develop any plan limits on mental health and substance use disorder benefits. It also asks for the 'evidence' used to determine that those factors are applied no more stringently than limits on comparable medical and surgical benefits -- as required by the MHPAEA. The DOL is seeking public comments prior to finalizing the draft model form."
Ballard Spahr LLP


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Ninth Circuit: California Law Voiding Discretionary Clauses Is Preempted as to Self-Insured Plans
"The court determined that the self-insured plan qualifies as insurance under California law because it shifts risk from employees to the employer and spreads that risk over the employer's workforce. According to the court, the only notable difference between a self-insured plan and an insured plan is the source of funding, which is not relevant for this analysis. However, turning to ERISA preemption, the court concluded that the STD plan, as a self-insured ERISA plan, is exempt from this state insurance regulation." [Williby v. Aetna Life Ins. Co., No. 15-56394 (9th Cir. Aug. 15, 2017)]
Thomson Reuters / EBIA

Seventh Circuit Confirms: No Age Discrimination Claims for Rehired Retirees Terminated to Preserve Health Plan's Retiree-Only Status
"Noting that the employer had not terminated employees age 65 or over who were not enrolled in the plan, and that there was no evidence of impermissible stereotyping, the court concluded that the employer had decided to terminate the retirees' reemployment because of the advice received about the adverse health care reform and MSP implications of allowing rehired retirees to continue participating in the retiree health plan, rather than because of their age." [Carson v. Lake County, Indiana, No. 16-3665 (7th Cir. July 26, 2017)]
Thomson Reuters / EBIA

Failure to Clarify FMLA Overlap with Maternity Leave Results in Triable Issue on Interference Claim
"Denying cross-motions for summary judgment on a discharged employee's FMLA interference claims, a federal district court in New York found triable issues on whether her employer's inadequate FMLA notices resulted in her inability to structure her leave for childbirth so as to successfully return to her job, particularly given her obvious confusion over whether maternity leave and FMLA ran concurrently, the employer's failure to answer her questions, and the lack of guidance in its policies." [Rengan v. FX Direct Dealer, LLC, No. 15-4137 (S.D.N.Y. Aug. 4, 2017)]
Wolters Kluwer Law & Business

CONSOL Energy Sued Again Over Retiree Healthcare Cuts
"CONSOL concealed the terms of its retirement and health-care plans and made 'regular, repeated, and material misrepresentations' about the lifetime nature of benefits available to nonunion supervisors and hourly employees, according to a lawsuit filed Aug. 23 in federal court in West Virginia."
Bloomberg BNA


Online Learning Course: HSA and HRA Basics

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This e-learning course will provide an in-depth look at HSA and HRA programs as well as how these programs interact with an HCFSA.

More Uncertainty for Wellness Programs
"The judge in a recent court case ordered the [EEOC] to develop the administrative record supporting rewards of up to 30% of the cost of health coverage for participation in wellness programs. If the EEOC is unable to defend the size of the reward, the EEOC may have to change its wellness program rules.... Now employers are left to wonder what the EEOC will do, when the EEOC will do it, and how to design their wellness programs in the interim.... The IRS and DOL wellness program rules remain in effect. WARNING: The DOL is auditing compliance and will follow up on participant complaints."
Vorys, Sater, Seymour and Pease LLP

Wearables in Well-being Programs Producing Increased Productivity (PDF)
"[E]mployees using wearable fitness trackers reported an 8.5 percent increase in productivity and a 3.5 percent increase in job satisfaction.... Over 60 percent of the employers that offer wearable device programs were satisfied or very satisfied with their programs. Forty-six percent of employers with wearable device programs felt that the programs significantly affected employee engagement."
Marsh & McLennan Agency LLC

Health Insurers Enter Fray in Drug Price Fight
"Health insurers are pushing back against a recent report that accuses them of denying some patients coverage for medical products and procedures, alleging it is part of a campaign by the pharmaceutical industry to distract the public from rising drug prices.... [One] study does suggest insurers have some blame regarding patients' rising drug prices, [finding] that 34 percent of patients who were denied coverage for a medication or procedure were forced to forgo the recommended treatment because the insurer would not cover the cost."
Morning Consult

CBO Responds to Congressman's Questions about Objectivity and the Agency's Estimates of the Effects of the American Health Care Act
"This letter provides additional details about ... [1] The steps CBO takes to ensure that its work is objective, impartial, and nonpartisan; [2] The benchmark to which the AHCA was compared and how the percentage of people insured today relates to CBO's estimates of the number under the AHCA and under that benchmark over the next decade; and [3] Why CBO and [JCT] did not provide an estimate of the average effect on premiums for people living in states that would obtain waivers from requirements for both essential health benefits and community rating under the AHCA."
Congressional Budget Office [CBO]


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Iowa Waiver Application Presents Crucial Decision Point for Administration
"Although the most recent version of the application has cleaned up some of the procedural defects in the earlier submission, the substantive legal defects and practical problems posed by the proposal remain substantial.... The Iowa waiver application claims general legislative authority for its provisions but acknowledges that no specific authorizing legislation exists, which the ACA would seem to require.... Iowa would not automatically reenroll any 2017 enrollees, but seems to assume that all current enrollees would return to actively enroll[.]"
Timothy Jost, in Health Affairs

States Petition to Chart Their Own Healthcare Course
"Iowa's waiver request, filed on June 12, 2017, would take away flexibility and move that state closer to a single-payer arrangement for its individual marketplace.... The state has proposed a single plan design with a 68-72% actuarial value. Coverage would be available on a guaranteed issue basis during normal open enrollment ... Means-based premiums, not limited to those earning under 400% of the poverty level, would be provided although it is unclear whether cost-sharing subsidies would be available."
Frenkel Benefits

Analysis of the 2014-2016 ACA Reinsurance and Risk Adjustment Results
"Health Care Service Corporation (HCSC) led the country in Reinsurance receipts from HHS over the three years of the program.... Anthem, Humana, Aetna, and Blue Shield of California rounded out the top five Reinsurance recipients.... [F]our out of the top five [recipients of Risk Adjustment payments] were also on the list of top recipients of Reinsurance payments.... With the exclusion of UnitedHealthcare, the top recipients of Risk Adjustment funding received amounts that were well above the industry average of $14.47 per member month."
Mark Farrah Associates

Aetna Accidentally Exposed Customers' HIV Status
"The letters, which contained information about changes in pharmacy benefits and access to HIV medications, were sent to about 12,000 customers across multiple states, Aetna confirmed ... For some of these customers, a plastic window on the envelope exposed not only the patient's name and address, but also a reference to filling prescriptions for HIV medications. This meant that whoever picked up the mail that day -- a family member, a friend, a postal worker -- would have been able to see the confidential information[.]"
The Washington Post; subscription may be required


Large Numbers, Risk Pooling and Congress
"[P]roposals from both the House of Representatives and the Senate would have made it easier for insurance companies to sell barebones plans that would appeal to those consumers with no health conditions who would be willing to trade off low premiums for limited coverage.... These efforts -- to fragment the risk pool and to create different risk pools for individual with different levels of healthcare needs -- highlight a tension between individuals' unwillingness to 'pay for someone else' and some fundamental actuarial principles.... Insurance is about pooling risks, spreading costs across that pool, and preventing adverse selection against that pool."
Allen Steinberg

Benefits in General

[Official Guidance]

IRS Publication 1220: Specifications for Electronic Filing of Forms 1097, 1098, 1099, 3921, 3922, 5498, and W-2G for Tax Year 2017 (PDF)
150 pages, August 2017 revision date. Includes a "First Time Filers Quick Reference Guide" with information about Form 4419, Application for Filing Information Returns Electronically (FIRE), which is used to request authorization to file Forms 1097, 1098 Series, 1099 Series, 3921, 3922, 5498 Series, 8027, 8955-SSA, 1042-S, and W-2G electronically through the Filing Information Returns Electronically (FIRE) System. Excerpt: "Allow a 45-day processing timeframe prior to the earliest information return due date."
Internal Revenue Service [IRS]

Status of Labor and Employee Benefits Resolutions Under the Congressional Review Act (PDF)
2-page chart identifies and describes each legislative resolution signed into law, and shows the corresponding activity and position of the U.S. Chamber of Commerce.
U.S. Chamber of Commerce

How to Guard Employee Benefit Plans from Cyberattacks
"[P]lan fiduciaries should: [1] Examine contracts with outside administrators concerning notification duties in the event of a security breach. [2] Look to state law notification requirements.... Many state requirements go beyond minimizing cybersecurity risks to addressing identity and fraud protection more generally ... Since former employees and their dependents could reside anywhere, make sure to conduct a comprehensive state law analysis to determine a benefits plan's legal requirements following a data breach[.]"
Society for Human Resource Management [SHRM]

Human Capital: Enabling Employees to Build Their Resources
"As the cost of health care for active employees continues to outpace wage growth, employers are focusing resources on the well-being of their current workforce. But this places more responsibility on individual employees to identify and finance coverages that provide security after the employment relationship ends. At the same time, it is becoming increasingly important for employers to develop a strategy for identifying programs that can support employees in addressing these needs, but without an increased financial burden on the employer. Here are some ways that employers can address this issue[.]"
Allen Steinberg

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

IRS Signals Key Golden Parachute Items for Review on Audit
"In early 2017, the IRS updated its Golden Parachute Payments Guide (Audit Techniques Guide) for the first time since its 2005 issuance. While intended as an internal reference for IRS agents conducting golden parachute examinations, [the Guide] offers valuable insight for both public and private companies, and recipients of golden parachute payments, into how IRS agents are likely to approach golden parachutes when conducting an audit."
McDermott Will & Emery

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