Health & Welfare Plans Newsletter

December 7, 2017

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[Official Guidance]

Text of IRS Notice 2017-74: Section 5000A Guidance for Individuals with No Available Marketplace Bronze-Level Plan (PDF)
"This notice provides guidance on computing the affordability exemption under Section 5000A(e)(1) of the Internal Revenue Code and Section 1.5000A-3(e) of the Income Tax Regulations for taxpayers with a family member who [1] is not eligible for coverage under an eligible employer-sponsored plan, and [2] resides in an area in which the Health Insurance Marketplace serving the area does not offer a bronze-level qualified health plan."
Internal Revenue Service [IRS]

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[Guidance Overview]

Health and Welfare Plan Update, December 2017 (PDF)
23 pages. Topics include: [1] IRS QSEHRA guidance leaves many "gotchas" for the unwary small employer; [2] The Taxman Cometh: IRS begins assessing employer mandate penalties; and [3] Employer shared responsibility payment.
Alston & Bird

'Whoaaa, Nellie!' Before Submitting IRS Form 14765 ...
"In many, perhaps most situations, confessing material reporting errors on Form 14765 may be an excellent idea, but there is some ciphering to be done first.... [W]hat did you know about these errors and when did you know it? More to the point, how much Section 4980H tax might you avoid by admitting to how much penalty exposure? And will the IRS recognize the 2015 reporting errors and impose penalties even if you don't confess?"
Balch & Bingham LLP

Plan Your Changes Before Changing Your Health Plan
"Before making any material change to a group health plan or to plan administration affecting union-represented employees, an employer covered by the National Labor Relations Act must give the union notice and an opportunity to bargain about the proposed change. That duty and opportunity is subject to some exceptions. Two are frequent troublemakers."
Balch & Bingham LLP

New York Releases Paid Family Leave Statement of Rights and Model Policy Language
"[The New York State Workers' Compensation Board (WCB)] released a manual that identifies the topics that must be included in employee materials and provides model language that employers may wish to incorporate in such materials, as appropriate. The WCB also issued a Statement of Rights.... [E]mployers must provide the Statement of Rights to employees whenever they take paid qualifying family leave."
Ogletree Deakins

[Advert.]

Online Learning Course: COBRA

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Even with ACA coverage easier for individuals to obtain, group health plans must continue to offer COBRA coverage. This course explains technicalities of COBRA, including who is entitled and how to administer.


CMS Office of the Actuary: 2016 National Health Expenditures Report
"In 2016, overall national health spending increased 4.3 percent following 5.8 percent growth in 2015 ... [T]he 2016 expenditure slowdown was broadly based as growth for all major payers (private health insurance, Medicare, and Medicaid) and goods and service categories (hospitals, physician and clinical services, and retail prescription drugs) slowed in 2016 ... Private health insurance spending increased 5.1 percent to $1.1 trillion in 2016, which was slower than the 6.9 percent growth in 2015."
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

Can an Employee Be Terminated After Racking Up Both FMLA and Unexcused Absences?
"Document each absence ... These reports later are golden when the employer is considering termination, as we now have an actual document explaining why an employee was absent on a particular occasion. It takes some work, of course, but it's highly effective.... Before you hit the termination button on an employee due to attendance issues, conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation ... Don't forget progressive discipline and the interactive process."
FMLA Insights

Benefits in General

The Unique Value of Employer-Sponsored Benefits
12 pages. "If workers were left to choose to buy health insurance on their own, we could expect coverage to be a fraction of what it is today. Without employer-sponsored retirement plans the capacity of individuals to meet their financial needs in retirement, already difficult, would become a significantly greater challenge. This report examines these issues."
American Benefits Council

America's Aging Workforce: Opportunities and Challenges (PDF)
53 pages. "This report provides a summary of the landscape of the aging workforce and key findings related to aging workers as well as employers. The report concludes with a vision of how aging employees and their employers can work together to ensure that they both prosper."
Special Committee on Aging, U.S. Senate

[Opinion]

Richard Posner, ERISA, and Me (PDF)
"[W]hile Judge Posner caused me a great deal of frustration in oral argument and in reading his opinions, he also accounted for my two best days as a lawyer.... He never failed to vigorously participate in oral argument and challenge both sides with hypothetical questions, and his favorite question from the bench, 'So what?' "
Mark DeBofsky, via American Bar Association Section of Labor and Employment Law

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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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