Health & Welfare Plans Newsletter

November 2, 2017

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[Guidance Overview]

Implementing State Flexibility on MLRs
"HHS's proposed payment rule would encourage states to apply again to reduce their individual market MLRs below 80 percent beginning with 2019, allowing insurers as needed to stabilize their individual insurance markets. CMS is, therefore, proposing to reinstate and streamline a collection of information to allow states to request reductions in the minimum MLR in their individual market. To request an adjustment to its MLR, a State will have to submit information regarding insurers selling coverage in its individual market, including earned premium and incurred claims, number of enrollees, commissions, and net underwriting gain, as well as each insurer's risk-based capital level."
Timothy Jost, in Health Affairs

[Advert.]

New COBRA Audit Guidelines

Sponsored by Lorman and BenefitsLink

Nov. 28 webinar. In addition to general COBRA compliance, we'll review the IRS Audit guidelines, to help you identify and prepare for the areas of focus in an IRS COBRA audit. Discount for BenefitsLink readers.


[Guidance Overview]

California's Move to Protect the Innocent from Balance Billing
"AB 72 says that, unless the patient agrees otherwise in writing, the out-of-network doctor is required to accept, as payment in full, what he or she would have received had he or she been an in-network doctor.... The new law allows an out-of-network doctor to ask the patient for his or her agreement to pay the doctor a larger amount. But the doctor must ask for this consent in writing, at least 24 hours before providing treatment, and can't do it when the patient is being admitted to the facility or just before undergoing a procedure."
Lockton

[Guidance Overview]

Washington State's Paid Sick and Safe Leave Update: The Administrative Regs Are Finally Final
"The Department recently finalized the regulations to implement Washington's paid sick leave law. This article discusses the key requirements for drafting and implementing legally compliant policies."
Ogletree Deakins

Employer's Honest Belief of FMLA Abuse Defeats Employee's Retaliation Claim
"The Third Circuit Court of Appeals ... has ruled that an employer's decision to terminate an employee based on its honest belief that the employee misused FMLA leave is sufficient to defeat a FMLA retaliation claim, even if the employer's belief is mistaken.... [T]he employee [also] claimed that his termination amounted to deprivation of benefits and, therefore, FMLA interference. The court found that the employee could not show that FMLA benefits were actually withheld as there was no evidence in the record to confirm that he was denied an FMLA benefit." [Capps v. Mondelez Global, LLC, No. 15-3839 (3d Cir. Jan. 30, 2017)]
The Wagner Law Group

Employer Strategies Tame Healthcare Cost Growth
"The average total health benefit cost per employee rose a modest 2.6% in 2017. Of course, behind the average, actual experience ranged from flat or decreased cost for over a fourth of employers to increases of greater than 10% for more than a third.... 'Transparency tools' (now offered by 82% of employers with 500+ employees) help consumers compare healthcare prices and quality, while telemedicine provides a low-cost alternative to an office visit (offered by 71%).... In 2017, 30% of all covered employees enrolled in a high-deductible consumer-directed health plan (CDHP). That's nearly flat from 2016."
Mercer

[Advert.]

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[Opinion]

The Deception Behind Those In-Network Health 'Discounts'
"Don't insurers have a natural incentive to keep provider prices down, even if they don't end up paying the list price? In fact, no -- at least not since the [ACA] ... established a 'medical loss ratio,' which requires insurers ... to spend at least 80 cents of every premium dollar on medical expenses.... Insurers can continue to attract customers with the promise of steep discounts through their PPO plans -- and providers can continue to ratchet up their prices.... Since insurance costs are merely a derivative of health-care costs, the result has been a steady rise in insurance costs for millions of working families."
The Wall Street Journal; subscription may be required

[Opinion]

The Ugly Consequences of Single-Payer Health Care
"Last year, two separate analyses ... came to the same conclusion: The Sanders 'single-payer' bill is going to cost the American people far more than the senator and his academic and congressional allies claim, and the taxes to finance this massive enterprise are going to be huge."
The Heritage Foundation

Benefits in General

ERISA's Six-Year Statute of Repose for Fiduciary Breach Claims Can Be Tolled
"The Eleventh Circuit held that ERISA's six-year statute of repose is not jurisdictional because ERISA does not contain the clear textual indication required to characterize the limitation as such. The Court also explained that, contrary to the trustee's argument, there is well-established precedent holding that statutes of repose are subject to express waiver, particularly when the statute setting forth the limitation period does not contain a categorical rule prohibiting waiver." [Sec'y, U.S. Dept of Labor v. Preston, No. 17-10833 (11th Cir. Oct. 12, 2017)]
Proskauer's ERISA Practice Center

Benefit Plans: Upcoming Compliance Deadlines and End of Year Planning
"[This article provides] a non-exhaustive list of quickly approaching employee benefits deadlines for 401(k) plans and health and welfare plans in the fall of 2017 and early 2018. The deadlines [listed] are generally for calendar year plans, unless otherwise specified."
Holland & Hart LLP

Executive Compensation
and Nonqualified Plans

Nonqualified Deferred Compensation Planning Affected by 2018 Contribution Limits for Qualified Retirement Plans
"[T]he contribution limits of qualified plans form the major reason for the existence of nonqualified plans ... The changes in limits from 2017 to 2018 are slight. If you have already maxed out your qualified plan contributions for 2017, you will probably do the same in 2018, so you will need to rely on NQDC plans to defer any salary and bonus increases you expect in 2018."
myStockOptions.com

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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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