Health & Welfare Plans Newsletter

December 18, 2017

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Webcasts, Conferences

Health Savings Accounts & High Deductible Health Plans – Successful Education and Design Strategies
January 4, 2018 in MD
Worldwide Employee Benefits Network [WEB] - Baltimore Chapter

Catching Upon the Latest from the EEOC On Wellness & Disease Management Programs Under the ADA & GINA
January 18, 2018 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

Impact of Cancer in the Workplace: High Cost, Benefit Trends and Supporting Employees
February 21, 2018 WEBCAST
Midwest Business Group on Health

Implications of Tax Reform for Executive Compensation
January 25, 2018 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

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[Official Guidance]

Text of OPM Proposed Regs: Federal Employees Health Benefits Program Flexibilities
11 pages. "Currently, OPM regulations defining minimum standards for health benefits plans allows certain plans to have two options and a high deductible health plan, while other plans may have three options of any type or two options and a high deductible health plan, creating an asymmetry between the potential offerings of health benefits plans. [OPM is] revising the regulations so all health benefits plans are able to offer three options or two options and a high deductible health plan. This rule will give FEHB enrollees more health plan choices allowing them to select a health plan that best meets their family's health care needs."
U.S. Office of Personnel Management [OPM]

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[Guidance Overview]

A Comprehensive Look at the Employer Mandate Penalty Assessment -- Options, Real Examples, and Lingering Problems
"This article explains the details of the Q&A and sample forms, then discusses some of the reasons ... employers have been inaccurately assessed a penalty.... [The penalties] seen to date have been concentrated to the northeast and largely limited to the section 4980H(a) penalty. [The authors] anticipate employers in other regions of the country as well as the section 4980H(b) penalty to be enforced in the weeks and months to come. The article concludes with discussing some changes the IRS needs to make to the Forms 1094-C and 1095-C to ensure a more accurate assessment of the employer mandate penalty moving forward."
Health Care Attorneys P.C.

[Guidance Overview]

Employer Shared Responsibility Penalty Assessment Toolkit
"To assist employers in understanding the process associated with receiving a ESRP letter (via Letter 226J) and the possible courses of action that they may take, ... [this toolkit provides] an article, employer FAQs, a flowchart that provides fundamental information needed to understand and respond to an ESRP letter, as well as matrices to assist employers in understanding the codes and the transitional relief that was available in 2015 Form 1095-C filings -- all of which is essential for employers to evaluate and properly respond to a penalty assessment letter from the IRS."
Arthur J. Gallagher & Co.

[Guidance Overview]

New Year, New Leave Policies
"Employers should immediately contact their insurance carriers to arrange for Paid Family Leave coverage.... [E]mployers should coordinate with their payroll departments and/or payroll vendors to arrange for deductions to be made beginning on January 1.... Employers should identify employees who will not be eligible for Paid Family Leave and inform them that they can choose to waive coverage."
Mintz Levin

[Guidance Overview]

Puerto Rico Treasury Department Issues Q&As on Qualified Payments Made for Hurricane Maria Disaster Assistance
"PR Treasury clarifies that Qualified Payments are excluded from the definition of 'gross income.' ... Qualified Payments made by an employer to its employees to cover necessary and reasonable expenses such as meal expenses, medicines and medical expenses or for the purchase of a power generator are considered Qualified Payments subject to the $1,000 monthly limitation.... Employers must keep in mind that they have until December 31, 2017 to make Qualified Payments to employees or independent contractors."
Littler

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Employee Can't Sue Employer's Defense Counsel for FMLA Interference or Defamation
"An employee was unable to advance his claims of FMLA interference and defamation against the law firm representing his former employer (who he was also suing for discrimination). Granting the law firm's motion to dismiss his claims, which were based on the defense attorney's alleged conduct and statements during DOL proceedings, a federal court in Kansas determined that the law firm was not an 'employer' under the FMLA, and the attorney's communications to the DOL investigator were entitled to an absolute privilege." [Carter v. Spirit Aerosystems, Inc., No. 16-1350 (D. Kans. Nov. 13, 2017)]
Wolters Kluwer Law & Business

Judge Blocks Administration's 'Moral Exemption Rule' on Birth Control Mandate
"The federal defendants argued the rules are intended to permit a small number of religious objectors to opt out of covering birth control because the requirement would impose a substantial burden on their religious practices. But Pennsylvania argued the exemptions would allow almost any employer to withhold insurance coverage for contraceptives, impacting millions of Americans." [Pennsylvania v. HHS, No. 17-4540 (E.D. Penn. Dec. 15, 2017)]
The Legal Intelligencer

Post-Open Enrollment Checkup: Tips to Avoid Headaches Later
"[1] Unconfirmed elections.... [2] HDHP enrollment with FSA.... [3] Stakeholder audits ... [4] Child support enrollments ... [5] Elections by employees with previous benefits issues.... [6] Elections by new hires during open enrollment.... [7] Missing life insurance beneficiaries ... [8] Family enrollment for one line of coverage but not others ... [9] DCAP enrollment without a dependent enrolled."
Cory Jorbin, HUB International, via Employee Benefit Adviser

House GOP Unveils Package to Delay Obamacare Taxes
"House Ways and Means Chairman Kevin Brady (R-Texas) led the announcement for the bills to delay ObamaCare's tax on medical devices for five years, on health insurance for two years, and the 'Cadillac tax' on high-cost health plans for one year. The package would also eliminate penalties for employers who do not offer health insurance to their workers, under the employer mandate, through 2018."
The Hill

House-Senate Conference Report on Tax Reform Legislation Released
"Under the bill, employers can no longer deduct expenses [for] qualified transportation fringe benefits effective for tax years beginning after December 31, 2017. Qualified bicycle commuting expenses will no longer be tax exempt to employees effective for tax years beginning after December 31, 2017. Other qualified transportation fringe benefits, such as parking and transit passes, will continue to be tax exempt to employees, so that plans that offer salary reductions for such benefits will continue to be allowed."
Employers Council on Flexible Compensation [ECFC]

The Effect of the Risk Corridors Program on Marketplace Premiums and Participation
"[T]heoretically ... [the risk corridors (RC)] program creates strong incentives to lower premiums for some insurers. Empirically, ... insurers who claimed RC payments in 2015, before defunding, had greater premium increases in 2017, after the program ended. Insurance markets in which more insurers made RC claims experienced larger premium increases after the program ended ... Overall ... the end of the RC program significantly contributed to premium growth."
National Bureau of Economic Research [NBER]

[Opinion]

How Lawmakers Should Deal with ACA Cost-Sharing-Reduction Payments
"[P]remiums for Obamacare's exchange-based coverage in 2018 have once again risen at double-digit rates, even in plans that were entirely unaffected by the elimination of CSR payments. Providing CSR payments in 2018 will not dampen these premium increases. Nor do they address their underlying cause. Trying to rush CSR and reinsurance payments out the door in 2018 will result in wasteful and unnecessary spending, and is more likely to create confusion than to produce the predictability lawmakers seek."
The Heritage Foundation

[Opinion]

The Eight C's That Will Define Healthcare in 2018 and Beyond
"Costs ... Capital ... Consolidation ... Consumerism ... Competition ... Compliance ... Culture ... Certainty ... Next year is pivotal to the future of our system of health.... Every board and management team in healthcare will be tested."
Paul Keckley

Benefits in General

[Official Guidance]

Text of DOL Regulatory Agenda, Fall 2017
EBSA Items in Proposed or Final Rule stage: [1] Request for Information on Fiduciary Rule and Prohibited Transaction Exemptions; [2] Revision of Form 5500 Series and Implementing Related Regulations Under ERISA; [3] Definition of 'Employer' Under Section 3(5) of ERISA -- Association Health Plans; [4] Delay or Amend Final Rule Amending Claims Procedure Regulation; [5] Amendment of Abandoned Plan Program; [6] Electronic Filing of Apprenticeship & Training Notices, and Top Hat Plan Statements; [7] Adoption of Amended and Restated Voluntary Fiduciary Correction Program; [8] Interim Final Regulations; Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the ACA; [9] Interim Final Regulations; Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the ACA. Also online: Fall 2017 Long-term Actions, which includes 5 items from EBSA.]
U.S. Department of Labor [DOL]

[Official Guidance]

Text of Treasury Department Regulatory Agenda, Fall 2017
Over 30 IRS proposed and final regulation items related to employee benefit plans and executive comp, including Determination of governmental plan status; collectively bargained welfare benefit funds; use of lump sum payments to replace lifetime income being received by retirees under defined benefit pension plans and lump sum payments after a restriction period; excise tax on high cost employer-sponsored health coverage; expatriate health plans, expatriate health plan issuers and qualified expatriates; definition of church plan; enrollment as an EA and EA and ERPA user fees; update to minimum present value requirements for defined benefit plan distributions; application of section 409A to nonqualified deferred compensation plans; application of normal retirement age regulations to governmental plans; nondiscrimination relief for closed defined benefit plans. [Also online: Fall 2017 Long-term Actions.]
U.S. Department of the Treasury

Sixth Circuit Declines to Adopt 'Substantial Compliance' Test for Requirements of a Qualified Domestic Relations Order
"[T]he Sixth Circuit determined that a divorce decree suffices as a qualified domestic relations order ('QDRO') that clearly specifies the decedent's daughter as the life insurance beneficiary under ERISA, and it affirmed the district court's order requiring Sun Life to pay the life insurance proceeds to her.... The court illustrated what is meant by 'clearly specified.' " [Sun Life Assurance Co. of Canada v. Jackson, No. 17-3120 (6th Cir. Dec. 13, 2017)]
Roberts Bartolic

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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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