Health & Welfare Plans Newsletter

December 14, 2017

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[Guidance Overview]

Memo to Massachusetts Employers for 2018 and 2019: How Not to Comply with the EMAC New Rules
"[S]ome employers are asking employees to voluntarily tell their employees whether they qualify for and are receiving health insurance coverage from MassHealth or subsidized insurance from ConnectorCare.... [S]uch a request does not raise HIPAA privacy concerns.... Rather, the problem is that if an employee is dismissed after disclosing that he or she might be the cause of an EMAC assessment, the employee may claim they have been unlawfully terminated in violation of public policy."
Mintz Levin

[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.


[Guidance Overview]

Nevada Employers Prepare to Provide Leave for Domestic Violence Victims
"[E]ffective on January 1, 2018 ... [this law will] require employers to provide leave to an employee 'who has been employed by an employer for at least 90 days and who is a victim of an act which constitutes domestic violence.' ... [An] eligible employee is entitled to 160 hours of leave (which may be taken in a block or intermittently) during a 12-month period following the date on which the domestic violence occurs. The leave allowed under this law may be paid or unpaid."
Ogletree Deakins

IRS Starts ACA Employer Mandate Enforcement
"To minimize risk of additional IRS exposure, employers should carefully consider how best to respond to a 226J letter ... [C]hanging the coding on the 1095-C of an employee from full-time to part-time could trigger further review or questions by the IRS on the process for determining who is a full-time employee -- and may increase the likelihood of IRS penalties for reporting errors on an employer's Form 1095-Cs."
Conduent

Retiree Health Benefits Ended When CBA Expired
"The Sixth Circuit Court of Appeals ... determined that an employer's promise to provide healthcare benefits for its retirees expired when the collective bargaining agreement (CBA) containing the commitment expired. In particular, the court found that the CBA's general-duration clause applied to the employer's promise to provide retiree healthcare benefits." [Watkins v. Honeywell International Inc., No. 17-3032 (6th Cir. Nov. 8, 2017)]
The Wagner Law Group

House Health Subcommittee Hearing Reviews Complex Drug Supply Chain
"Hearing from 10 witnesses, [the Subcommittee on Health] dug into the manufacturing of, wholesale and distribution of, and payment for drugs, and how each of these stages impacts the cost of medications."
Energy and Commerce Committee, U.S. House of Representatives

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Telemedicine for Addiction Treatment? Picture Remains Fuzzy
"When President Donald Trump declared the opioid epidemic a public health emergency, it came with a regulatory change intended to make it easier for people to get care. The declaration allows for doctors to prescribe addiction medicine virtually, without ever seeing the patient in person. In Indiana, this kind of virtual visit has been legal since early 2017. But among a dozen addiction specialists in Indiana contacted by a reporter, just one had heard of doctors using telemedicine for opioid addiction treatment[.]"
Kaiser Health News

Five Simple Charts Show That Risk-Based ACOs Are Working
"In 2016, ACOs in two-sided risk models accounted for only 10 percent of ACOs (48 of 458) but generated almost 30 percent of the total aggregate savings vs. benchmarks ... ACOs in one-sided models saved an aggregate of $541 million versus their benchmarks, but CMS paid out more than that -- $613 million -- in shared savings. In two-sided models, CMS fared better."
Health Affairs

Pharmacy Management: Carving In vs. Carving Out -- What's Right for Your Business? (PDF)
"Carving in occurs when a group contracts directly with a health plan provider for medical and pharmacy benefit services.... Carving out occurs when a group contracts directly with a PBM to administer the pharmacy benefit program. The group holds a separate, direct contract with a health plan provider to administer medical coverage.... There are benefits to both."
Lockton

Benefits in General

Claims Administrator's Decision Reviewed De Novo Due to Inadequate Delegation of Discretionary Authority
"While the SPD and administrative services agreement in this case implied that the claims administrator had discretionary authority, the court determined that more specificity was required to actually delegate that authority.... [To] increase the likelihood of deferential review by a court, delegation of discretionary authority should be done clearly and in accordance with the terms of the plan, and final decisions should be made only by parties to whom discretionary authority has been appropriately delegated." [Miller v. PNC Financial Services Group, Inc., No.16-25142 (S.D. Fla. 2017)]
Thomson Reuters / EBIA

Senate HELP Committee Advances EBSA Nominee Rutledge
"[Preston Rutledge] currently serves as senior tax and benefits counsel on the Majority Tax Staff of the Senate Finance Committee, and as top aide to Senator Orrin Hatch, R-Utah. These ties to the government, and particularly to a legislator known for being active on retirement and labor issues, suggest a change in strategy from the president's first effort to name the top official at the [DOL]."
planadviser

Employee Benefits: Past, Present and Future [Video]
American Benefits Council President James Klein interviews Dave Walker on the future of private sector benefit plans, the viability of government health and retirement entitlement programs, and the evolving role of states in regulating employee benefits. Walker is the former Assistant Secretary of Labor, the Public Trustee for Social Security and Medicare, and the Comptroller General of the United States. The interview was part of the American Benefits Council's "50th Anniversary Symposium: The Future of Employee Benefits."
American Benefits Council

Selected Discussions
on the BenefitsLink Message Boards

DFVC Filing; DOL Says We Paid Too Much in Penalties
Plan sponsor failed to file the final/short Form 5500 for the plan year ending 5/31/2016. We recommended DFVC, filed the return in November 2017 and paid the $2,000 penalty (this is a large plan). The DOL's online calculator correctly indicates that the penalty is $2,000 (based on 313 days late). The client received a letter from the DOL stating that they might have submitted an overpayment of $1,260, and included an ACH form for the plan sponsor to request the refund. We called the DFVC number on the letter but got voicemail and have yet to receive a call back. Any idea what might have triggered the letter? Anyone had success in addressing this with the DOL? We don't want to overpay the penalty, but we are pretty sure the penalty is $2,000 and not $740.
BenefitsLink Message Boards

Ever Filed a Form 8955 Late? Use DFVCP?
Has anyone had to file a late Form 8955? We have a new client whose form was not filed for 2016. I saw something from the IRS saying that such a plan sponsor should file under DFVCP, which I suppose means re-filing the Form 5500 and paying the penalty. Does anyone have experience with this?
BenefitsLink Message Boards

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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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