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Fringe Benefits Design, Inc.
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[Official Guidance]

Text of CMS Memo: Safe Harbor for Renewal Notices for 2018 (PDF)
"Given the later deadline for filing of 2018 rates.... CMS will not take enforcement action against an issuer for failing to send a renewal notice with respect to individual market coverage in time to be delivered by October 31, 2017, as long as the issuer provides such notice shortly thereafter, as reasonably possible." [Unnumbered memo, Sept. 26, 2017]
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]


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[Official Guidance]

Text of Instructions for 2017 IRS Form 1095-A: Health Insurance Marketplace Statement (PDF)
"Health Insurance Marketplaces must file Form 1095-A to report information on all enrollments in qualified health plans in the individual market through the Marketplace. Do not file a Form 1095-A for a catastrophic health plan or a separate dental policy (called a 'stand-alone dental plan' in these instructions)." [Rev. Aug. 30, 2017; published online Sept. 26, 2017]
Internal Revenue Service [IRS]

[Official Guidance]

Text of IRS Publication 5164: Test Package for Electronic Filers of ACA Information Returns (AIR), for Processing Year 2018 (PDF)
22 pages; rev. Oct. 2017. "[This publication] contains general and program specific testing information for use with ACA Assurance Testing System (AATS).... ACA Information Returns must be filed electronically if the Transmitter or Applicable Large Employer is required to submit 250 or more information returns for the year."
Internal Revenue Service [IRS]

FMLA: Is Postoperative Care Considered a Serious Health Condition?
"[T]he 2nd Circuit considered first whether a condition that required only a single surgical procedure could still be a serious health condition, and, second, whether working without absence up until the date of surgery disqualified the employee's condition from being considered serious. The court found in [the employee's] favor on both questions." [Pollard v. The N.Y. Methodist Hosp., No. 15-3231(2d Cir. June 30, 2017)]
HR Daily Advisor

Seventh Circuit: Long-Term Leave Is Not a Reasonable Accommodation Under the ADA
"In its amicus brief ... the EEOC [had] argued that 'a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is [1] of a definite, time-limited duration; [2] requested in advance; and [3] likely to enable the employee to perform the essential job functions when he returns.' But the Seventh Circuit found that the EEOC's 'reading of the statute equates "reasonable accommodation" with "effective accommodation," ' an interpretation the Supreme Court has rejected." [Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017)]


15th National Forum on ERISA Litigation on November 1-2, 2017 in New York

Sponsored by American Conference Institute

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What Does the EEOC's Lawsuit Against Estee Lauder Mean for Parental Leave Policies?
"Last month, the EEOC filed a lawsuit against Estee Lauder in a Pennsylvania federal court alleging that Estee Lauder's parental leave policy discriminates against employees on the basis of gender by providing unequal benefits to biological mothers and fathers. What's notable about this lawsuit is that it involves a policy which, on its face, uses a 'primary' and 'secondary' caregiver distinction that provides different amounts of leave to employees based on that distinction without regard to their gender -- a practice used by many employers in their parental leave policies."
Mintz Levin

Paying PTO Forward
"30 percent of employers that offer paid vacation allow workers to donate paid vacation days to colleagues who are dealing with a catastrophic illness or personal emergency, for example.... 28 percent of companies with paid-time-off plans [say] they permit employees to donate paid time off. Twenty-two percent of organizations that provide paid sick leave allow workers to donate sick leave.... While the pros to implementing a paid-time-off donation policy are indeed many, there are still many factors to consider before doing so."
Human Resource Executive Online

Open Enrollment Communication: Planning and Strategy
"[S]tart by having a solid communication strategy.... [1] Review your successes and failures.... [2] Set goals and objectives.... [3] Message like a marketer."
Grooms Benefit Solutions

Senate Won't Vote on Last-Ditch ACA Repeal Attempt
"Sen. Majority Leader Mitch McConnell said on Sept. 26 that the Senate will not hold a vote on the Graham-Cassidy health care bill, Republicans' last-ditch effort to repeal and replace the [ACA], ensuring that the ACA will remain in place for the foreseeable future."
Society for Human Resource Management [SHRM]

The After-Effects of Graham-Cassidy's Demise
"Of most immediate concern is what will happen with the individual coverage market and, especially, the exchanges.... Had Graham-Cassidy passed, the mandate for employers with 50 or more workers to offer health insurance would have disappeared, but with the labor market tightening, few large employers are inclined to stop offering health benefits anyway."
Epstein Becker Green

ACA Round-Up: Graham-Cassidy's Demise, Pressures on 2018 Open Enrollment, and New HHS Draft Strategic Plan
"Two characteristics of the strategic plan are particularly striking. First, there is virtually no reference to continued implementation and support of the [ACA's] coverage initiatives.... Instead the strategic plan endorses alternative approaches to insurance coverage that emphasize consumer responsibility and choice.... The second striking characteristic of the strategic plan is its emphasis on support for religious beliefs and organizations."
Health Affairs


Premiums Likely to Rise Amid Fallout from Graham-Cassidy Health Bill
"Congress is now going to miss the Sept. 27 deadline insurers face to sign final contracts to participate in ACA markets next year, meaning average premiums for Obamacare plans will likely be approximately 15 percent higher in 2018 compared to this year -- and much higher than that in some states[.]"
Morning Consult


GOP Repeal Effort Fails But ACA Still in Choppy Waters
"Republicans officially pulled the plug on their last-ditch effort to repeal and replace the [ACA] on Tuesday.... Here are five ongoing challenges the law faces. [1] Insurers still face tremendous uncertainty.... [2] The Trump administration has cut funding for efforts to sign people up for insurance.... [3] The 2018 enrollment period is half the length of 2017's, and now it will be shorter still.... [4] The Trump administration is dragging its feet on giving states flexibility to stabilize their markets.... [5] Republicans could take another shot at a full overhaul next year -- or even this year."
Kaiser Health News

Benefits in General

[Guidance Overview]

Text of IRS IR-2017-160: Recap of Key Tax Relief Provisions Available Following Harvey, Irma and Maria
"[The IRS is providing this] rundown of key tax relief that has been made available to victims of Hurricanes Harvey, Irma and Maria. In general, the IRS is now providing relief to individuals and businesses anywhere in Florida, Georgia, Puerto Rico and the Virgin Islands, as well as parts of Texas. Because this relief postpones various tax deadlines, individuals and businesses will have until Jan. 31, 2018 to file any returns and pay any taxes due."
Internal Revenue Service [IRS]

What Will the Independent Workforce Look Like in 2027? (PDF)
"In 2027, more than half of the workforce will be, or will have been, an independent.... Independents will cycle in and out of traditional employment ... People will buy results, not labor ... Independents will team up to get maximum results.... Gen Z will become the most independent generation yet.... Traditional 'Retirement' will no longer be the goal."
MBO Partners

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

SEC Issues Pay Ratio Guidance
"Although the interpretive release and the new guidance provide issuers with increased flexibility and helpful examples, they all but eliminate any hope that the SEC will delay implementation of the pay ratio disclosure rule. [A table] summarizes the key takeaways from the September 21st publications and, where applicable, the conforming changes to the previously released C&DIs."
Shearman & Sterling LLP

[Guidance Overview]

Pay Ratio Clarifications: SEC Adopts New Guidance
"The Staff provided three hypotheticals, which are summarized in [a table in this article] ... The Staff noted that some of the techniques ... might be more suitable for larger companies with more complex workforces, and that the hypotheticals are not meant to suggest that companies should follow any particular approach. As further noted in the Staff guidance, simpler approaches to determining the pay ratio may be appropriate in many cases."
Nixon Peabody LLP

SEC's New Guidance on CEO Pay Ratio Emphasizes Flexibility and Reasonableness
"The SEC guidance fell short for any companies hoping for more drastic change, such as relief from the requirement to include their non-US employees in the employee pool when determining the median employee. However, the Interpretive Release clarifies that companies may use appropriate existing internal records in determining whether the 'de minimis exemption' is available to permit exclusion of employees who are outside the United States in an amount up to 5% of total employees."
Baker McKenzie


SEC Eases Compliance with Pay Ratio Rule
"[T]he relaxed standard for calculating pay ratios certainly does not make them more comparable from company to company.... [T]he SEC has stated that the purpose of the pay ratio is not to facilitate such comparisons but 'to allow shareholders to better understand and assess a particular registrant's compensation practices.' Still, it's very possible that those with the highest ratios will suffer negative consequences such as unwanted press coverage, protests, boycotts, or negative ad campaigns."

on the BenefitsLink Message Boards

Calculation of High Deductible Out-of-Pocket Maximum
"Is the maximum limit for high deductible plans a combo of in- and out-of-network or can the limit be for each type of structure? We have a shared family deductible and then individual out-of-pocket limits. This year we are thinking about adding an out-of-network structure and the costs in the network would not be credited towards the out-of-network limit."
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David Rhett Baker, J.D., Editor and Publisher
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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2017, 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, 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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