Health & Welfare Plans Newsletter

September 22, 2017

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Relationship Manager
Trinity Pension Consultants, Inc.
in OH

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American Trust & Savings Bank
in IA

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SBC Benefit Consultants, Inc.
in NJ

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[Official Guidance]

Text of IRS Form 8925: Report of Employer-Owned Life Insurance Contracts (PDF)
Rev. Sept. 2017. "Use Form 8925 to report the number of employees covered by employer-owned life insurance contracts issued after August 17, 2006, and the total amount of employer-owned life insurance in force on those employees at the end of the tax year. Policyholders must also indicate whether a valid consent has been received from each covered employee, and the number of covered employees for which a valid consent has not been received."
Internal Revenue Service [IRS]

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[Guidance Overview]

The Problem and Solution of a Controlled Group Incorrectly Filing Only One Form 1094-C
"An employer who has multiple ALE members in its controlled group and only files one Form 1094-C with the IRS will have to refile for each of its ALE members.... [E]mployers facing this situation will not only need to file the additional Forms 1094-C but will also need to refile the Forms 1095-C for the employees who were previously filed with the wrong ALE member's Form 1094-C. The corrections process will involve four steps."
Accord

[Guidance Overview]

Rhode Island General Assembly Passes Paid Sick Leave Law
"[T]he Act requires that employers in Rhode Island that employ 18 or more employees provide their employees with three days of paid sick or safe leave in 2018, four days in 2019, and five days in 2020.... Employers must permit employees to carry over their earned but unused paid sick and safe leave time to the following calendar year.... Employees may use this sick and safe leave in a variety of common circumstances[.]"
Proskauer

Court Cases Challenge English-Only COBRA Election Procedures
"There is no explicit requirement to provide COBRA notices in languages other than English, and, to date, courts have not required it. In fact, prior decisions have specifically held that there is no requirement that COBRA notices be translated into a foreign language. However, two pending cases ... could reveal situations in which employers with a significant multilingual workforce should provide translated versions of their COBRA election materials. The cases also expose the potential employee relations issues (and corresponding class action risk) associated with English-only COBRA communications."
McDermott Will & Emery

The ADA Is Not a Medical Leave Entitlement, Seventh Circuit Declares
"The federal Americans with Disabilities Act (ADA) requires employers to reasonably accommodate a qualified individual with a disability, and more time off may be a form of reasonable accommodation. But how much more time off is reasonable, and isn't an employer justified in expecting its employees to actually show up for work?... [The Seventh Circuit] held that the term 'reasonable accommodation' is expressly limited to those measures that enable the employee to work, and an employee who needs long-term medical leave cannot work and thus is not a qualified individual with a disability under the ADA. Therefore, concluded the court, a multi-month leave of absence is beyond the scope of a reasonable accommodation." [Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017)]
Ogletree Deakins

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Court Sends EEOC Wellness Regs Back for Further Review
"The court sent the regulations back to the EEOC for reconsideration but declined to vacate or invalidate the regulations at this time ... Since the decision, AARP filed a motion to invalidate the EEOC's rules for 2018 ... The motion proposes two possible remedies: [1] vacate the wellness rules immediately but delay the effective date of the revocation until the end of 2017, or [2] issue a 'prospective injunction' barring enforcement of the rules beginning January 1, 2018." [AARP v. EEOC, No. 16-2113 (D.D.C. Aug. 22, 2017)]
Willis Towers Watson

Another Set of ACA Regs Sent Back to Agencies for Further Explanation
"Responding to a challenge brought by various health care providers, a federal court has ruled that the DOL, IRS, and HHS acted arbitrarily and capriciously in adopting final regulations under the [ACA] patient protections provisions for emergency services ... [T]he court ruled that the agencies did not 'seriously respond' to the transparency and manipulation concerns raised in comments to the interim final rules." [American Coll. of Emergency Physicians v. Price, No. 16-913 (D.D.C. Aug. 31, 2017)]
Thomson Reuters / EBIA

Understanding Graham-Cassidy and the 'Last Best Chance' to Repeal Obamacare
"Graham-Cassidy converts $1.2 trillion dollars of Obamacare subsidies and spending into block grants for States to craft healthcare plans to address the needs of its citizens. The bill also ends ObamaCare mandates and defunds Planned Parenthood. Here are the six major changes Graham-Cassidy makes to ObamaCare[.]"
American Center for Law and Justice [ACLJ]

States Not Ready to Take Over Obamacare If Senate Bill Passes
"Under the legislation states would have only two years to create a new health-care infrastructure ... The ACA, enacted in 2010, allowed four years to build an eligibility system and a website to implement the law and the federal government still wasn't adequately prepared when the federal HealthCare.gov website was scheduled to open for 2014[.]"
Bloomberg BNA

States Approve Steep Rate Hikes for ACA Exchange Plans
"In Mississippi ... the insurance commissioner approved a 47.4% average rate increase for the state's single [ACA] exchange insurer ... The increase would have been just 17.9% if CSR payments were guaranteed next year. Connecticut approved a 31.7% premium increase for Anthem and a 27.7% increase for ConnectiCare ... and Kentucky, Mississippi and Virginia all are approving rates for major insurers that are at least 25% higher than rates were this year."
FierceHealthcare

[Opinion]

What Needs to Change in the Graham-Cassidy Health Care Bill
"To guarantee patients have choice and options in health insurance, the Senate should change Graham-Cassidy to preclude states' ability to use the new block grants to force individuals into a government-run program that lacks choice.... Without such changes, states are likely to spend the funding in ways that expand the number of people in government health care programs rather than providing subsidies to help recipients purchase the coverage of their choice in a competitive private market with a variety of different plan options."
The Heritage Foundation

Executive Compensation
and Nonqualified Plans

[Official Guidance]

Text of SEC Interpretive Guidance on Pay Ratio Disclosure (PDF)
"In light of the approaching compliance date and concerns raised about the implementation of the disclosure requirement, this release provides additional guidance to assist registrants in their compliance efforts. In addition, the Commission staff is publishing guidance about the use of statistical sampling to assist registrants in determining their median employee for purposes of the pay ratio disclosure."
U.S. Securities and Exchange Commission [SEC]

[Official Guidance]

Text of SEC Division of Corporation Finance Guidance on Calculation of Pay Ratio Disclosure
"[T]he Commission expressly sought to provide flexibility to registrants by not specifying the 'other reasonable methods' that may be appropriate, allowing each registrant to determine the method that best suits its own facts and circumstances. The rule also provides for flexibility in setting the parameters of the statistical sampling method.... In order to assist registrants in determining how to use statistical sampling methodologies and other reasonable methods, [the SEC] is providing the following guidance and hypothetical examples of use of sampling and other reasonable methodologies."
U.S. Securities and Exchange Commission [SEC]

[Official Guidance]

Text of SEC Press Release: SEC Adopts Interpretive Guidance on Pay Ratio Rule
"The guidance: [1] States the Commission's views on the use of reasonable estimates, assumptions and methodologies, and statistical sampling permitted by the rule; [2] Clarifies that a company may use appropriate existing internal records, such as tax or payroll records, in determinations about the inclusion of non-U.S. employees and in identifying the median employee; [3] Provides guidance as to when a company may use widely recognized tests to determine whether its workers are employees for purposes of the rule."
U.S. Securities and Exchange Commission [SEC]

[Guidance Overview]

SEC Issues Guidance on Pay Ratio Rule
"In light of the use of estimates, assumptions, adjustments, and statistical sampling permitted by the rule, the Commission noted the pay ratio disclosures may involve a degree of imprecision.... In the Commissions view, if a registrant uses reasonable estimates, assumptions or methodologies, the pay ratio and related disclosure that results from such use would not provide the basis for Commission enforcement action unless the disclosure was made or reaffirmed without a reasonable basis or was provided other than in good faith."
Dodd-Frank.com

Lessons from Wells Fargo: Forfeiture and Clawback Policies
"Although the Dodd-Frank Act requires regulators to implement clawback regulations, those regulations have not yet been finalized. Absent final regulations, the industrywide best practice is to provide that the occurrence of certain triggers will lead to a review. However, the compensation committee typically retains discretion to determine whether a forfeiture or clawback is appropriate and, if so, the amount."
Meridian Compensation Partners, LLC

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

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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