Health & Welfare Plans Newsletter

August 30, 2017

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Jobs

Junior Plan Administrator
Stones River Consulting
in TN, Telecommute
ERISA Consultant
Pension Consultants
in MO
Retirement Plan Administrator
Erickson, Brown & Kloster, PC
in CO
Executive Director
City of Hollywood, FL Employees' Retirement Fund
in FL
Retirement Planning Consultant - Part-time
Transamerica
in TX, Telecommute
Regional Sales Director
OneAmerica Retirement Services
in CT, MA, NJ, PA
Bilingual Benefit Communication Specialist
Benefit Communication Insourcing
in AL, AR, GA, KS, KY, NC, UT, WI

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[Guidance Overview]

The Ins and Outs of Opt-Out Incentives
"If an employer is small (under 50 employees), it may offer either [1] an unconditional opt-out payment (cash), or [2] after-tax reimbursement upon proof of other group coverage (but not individual insurance). A large employer (50 or more employees) has the same two options. However, if the employer chooses the unconditional opt-out payment (cash), it must add the amount of that payment to the nominal employee premium for ACA affordability purposes.... [O]pt-out payments can create issues under the Code Section 125 cafeteria plan election rules, the Medicare Secondary Payer rules ... and even the Code Section 105(h) nondiscrimination rules for self-funded plans[.]"
Spencer Fane

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[Guidance Overview]

CMS Details 2018 Open Enrollment Period Procedures
"[U]nder the market stabilization rule, insurers may for the first time, to the extent state law permits, apply payments for new enrollees to past-due premiums owed to the insurer or an insurer in the same control group.... Insurers will be asked in October to reach out to individuals in danger of losing their premium tax credits and cost-sharing reductions.... CMS will notify insurers when their current enrollees switch to another insurer on a daily basis from November 3 to December 15 ... Auto-enrollment is invisible to consumers until December 16, and insurers are not supposed to tell consumers they are auto-enrolled before that date, but rather urge them to enroll actively."
Timothy Jost, in Health Affairs

[Guidance Overview]

New York State Issues Guidance on Tax Treatment of Paid Family Leave Contributions and Benefits
"[1] Premiums are to be deducted from employee's after-tax wages. [2] Paid Family Leave Benefits paid to employees will be taxable, non-wage income that must be included in federal gross income. [3] Taxes will not automatically be withheld from benefits. Employees ... can request voluntary tax withholding ... [4] Employers should report employee contributions on an IRS Form W-2 using Box 14 -- State disability taxes withheld. [5] Paid Family Leave Benefits should be reported by the New York State Insurance Fund (NYSIF) on IRS Form 1099-G and by all other payers (either private carriers or self-insured employers) on IRS Form 1099-MISC."
Littler

[Guidance Overview]

New York Paid Family Leave Law: Yes, It's Complicated
"What kinds of eligibility and notice requirements are in the NYPFL law? ... What's the difference between paid family leave and disability leave? ... What's the difference between paid family leave and paid time off? ... Paid family leave is not FMLA ... What employers should do to prepare."
Corporate Synergies

Massachusetts Governor Signs Bill with Employer Assessments for MassHealth
"The law calls for higher employer medical assistance contributions (EMACs) from all employers with at least six employees in Massachusetts. It also imposes a new assessment on employers with workers currently receiving benefits from MassHealth or from the MA Health Connector, the Commonwealth's [ACA] exchange. The higher contributions and new assessments will take effect January 1, 2018, and continue through 2019[.]"
Willis Towers Watson

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Want to Attract Millennials? Go Pet Friendly
"15% of large employers make pet insurance available, and some go so far as to subsidize the coverage. Another alternative would be to make employees aware of discounts for pet insurance.... Other popular perks for employers to consider are negotiated discounts on pet products and referral services for pet sitting and dog walking."
Mercer

Court to the EEOC: 'Try Again' on Wellness Rules
"Key points in the D.C. District Court's opinion include: [1] EEOC wellness regulations defined the 30 percent cap on incentives differently from the HIPAA definition of the 30 percent incentive cap. [2] The incongruity between the [HIPAA] wellness regulations and the EEOC wellness regulations has caused plan sponsors confusion ... [3] The D.C. District Court found nothing in the EEOC's administrative record that explains the agency's conclusion that a 30 percent incentive level is the appropriate measure for voluntariness." [AARP v. EEOC, No. 16-2113 (D.D.C. Aug. 22, 2017)]
McDermott Will & Emery

DC Court Strikes Down EEOC Rules on Corporate Wellness Programs
"After blasting the EEOC for failing to provide any support for the 30 percent rule, the court could have simply vacated the rule completely. Instead, the court notes that since the rules took effect in 2016, many 2017 employer wellness plans were designed with the 30 percent voluntariness regulation in mind. If the court vacated the rule, those employers, and their employees, could be punished for relying on the EEOC standard. Medical information already disclosed under those programs cannot be made confidential again by the wave of the vacatur wand.... In the end, therefore, it appears that the EEOC put forth an unsupported rule that is ultimately left standing due to circumstances." [AARP v. EEOC, No. 16-2113 (D.D.C. Aug. 22, 2017)]
Bradley Arant Boult Cummings LLP

Can an Individual Supervisor Be Liable Under the FMLA?
"[T]he court observed that liability under the FMLA may attach to any 'employer,' and the statute broadly defines the term 'employer' to include 'any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.' Next, the court noted that the definition of 'employer' in the Fair Labor Standards Act (FLSA) is 'materially identical' to the definition in the FMLA. Because the U.S. Court of Appeals for the 1st Circuit ... has ruled that individual supervisors may be sued personally under the FLSA, the judge ruled that it was only logical to follow the 1st Circuit's ruling when determining individual liability under the FMLA." [Eichenholz v. Brink's Inc., No. 16-11786 (D. Mass. May 9, 2017)]
HR Daily Advisor

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For the First Time, More Americans Are Covered by Employment-Based Life Insurance Than by Individual Life Insurance
"108 million Americans have life insurance coverage through their workplace, compared with 102 million covered by individual life insurance.... Over the past 50 years the number of Americans covered by employment-based life insurance has increased significantly (nine million in the past six years alone) ... The number of households covered by employment-based life has increased by 68 percent (to 57 million), while the number of people (adults and children) covered has almost doubled (from 55 million to 108 million)."
LIMRA

Bipartisan Reform or Single-payer: What Does the Future Hold?
"[E]mployers will have to begin paying the ACA's Cadillac in 2020 unless a delay can be added to the CHIP reauthorization bill, the tax reform bill, or some other measure.... [D]uring the recent repeal debate, the Senate voted 52 to 48, including two Democrats, for an amendment to permanently repeal the Cadillac tax, showing there could be bipartisan support for full repeal on some future bill."
HR Policy Association

[Opinion]

Outside-the-Box Ideas for Fixing the Individual Insurance Market
"[1] Allow people into Medicare starting at age 55.... [2] Allow people to 'buy in' to Medicaid.... [3] Get younger adults off their parents' insurance and back into the individual market.... [4] Require insurers who participate in other government programs to offer marketplace coverage.... [5] Let people use HSA contributions to pay health insurance premiums."
Kaiser Health News

[Opinion]

As Health Plans Become Less Standardized, Consumer Decision Support Tools Will Be Critical
"[C]onsumers will continue to need a portal displaying their plan options and the comparison tools that have been developing over time in the ACA marketplaces. These should include, at a minimum: [1] Total Cost Estimators -- providing customized estimates of what consumers can expect to pay on a monthly basis ... [2] Provider Directories/Network Look-Ups -- providing the ability to search for health care providers covered by a plan; [3] Formularies/Drug Look-Ups -- providing the ability to search for prescription drugs covered by a plan, and [4] Quality Ratings -- allowing consumers to compare plans based on state/federally approved quality metrics such as measures of patient safety and clinical effectiveness."
The Commonwealth Fund

Benefits in General

Benefits of Adopting a Formal Severance Plan Under ERISA
"Severance arrangements that do not qualify as ERISA plans are subject to state law, which can leave an employer at both a substantive and a procedural disadvantage. State law requirements can vary from state to state, which makes compliance difficult.... [M]any of these state laws ... include provisions that expose an employer to substantial risk in a lawsuit for nonpayment, including in some states punitive damages, jury trials, and potential personal liability for company officers."
Morgan Lewis

Gig Workers in America: Profiles, Mindsets, and Financial Wellness (PDF)
"The gig model is cost efficient for employers because it converts many fixed costs to variable, reduces benefits costs, and allows for resource flexibility. For workers, gig work provides flexibility and the opportunity to be their own boss. However, the gig model is fundamentally changing the employer-employee relationship. Consequences for gig workers include an unpredictable work stream, a lack of access to benefits, and average pay that is lower than traditional full-time employees."
Prudential

Press Releases

Billings & Co., Inc. is Certified to Industry Best Practices
Centre for Fiduciary Excellence [CEFEX]

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Lois Baker, J.D., President  loisbaker@benefitslink.com
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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