Health & Welfare Plans Newsletter

December 21, 2017

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[Guidance Overview]

'Tis the Season to Answer Employer Shared Responsibility Payment Letters from the IRS
"To challenge a proposed assessment, an employer should complete the Form 14764, ESRP Response. It should include a signed statement explaining the reason(s) for the disagreement and any supporting documentation, such as the calculation of the adjusted Code Section 4980H assessment and the correction of any errors on the Form 1094-C or 1095-C."
Ogletree Deakins

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Notable Employee Benefit Provisions in the Tax Cut and Jobs Act
"[1] Reduced medical expense deduction threshold (effective 2017) ... [2] Tax-free bicycle reimbursement elimination (effective 2018) ... [3] Tax-free moving expense reimbursement elimination (effective 2018) ... [4] Individual mandate tax penalty elimination (effective 2019) ... [5] Tax credit for paid family leave (effective 2018)."
ABD Insurance & Financial Services

Congress Passes Tax Bill Altering Employee Benefits
"Some businesses are likely to stop subsidizing their employees' mass transit and parking costs while allowing employees to contribute their own dollars through pretax payroll programs.... The bill puts in place a federal tax credit for employers that provide paid family and medical leave to their employees, beginning in 2018. Eligible employers can claim a general business credit equal to a percentage of wages paid to qualifying employees on leave under the [FMLA]."
Society for Human Resource Management [SHRM]

TPA's Recordkeeping Was Enough to Show Employer Met COBRA Notice Requirements
"The Eleventh Circuit Court of Appeals ... determined that an employer had met its COBRA notification requirements based solely on ample evidence of its established procedures for providing COBRA notices.... The employer had contracted with a third party administrator to provide COBRA notices, and it provided all of its benefit data files, including termination of employment information, to the TPA." [DeBene v. Bay Care Health System, Inc., No. 16-12679 (11th Cir. May 31, 2017)]
The Wagner Law Group

UnitedHealth Beats Would-Be Class Action Over Drug Costs
"UnitedHealthcare Inc., OptumRX Inc., and others defeated a lawsuit accusing the companies of operating a scheme that charged customers hidden, unauthorized, and excessive fees for prescription drugs. A federal judge ... [said] the would-be class of 'thousands, and potentially millions,' of patients failed to show that the defendants violated [ERISA] or federal racketeering law. In particular, there was no indication the defendants were acting as ERISA fiduciaries when they engaged in the challenged conduct, the judge said." [In re UnitedHealth Group PBM Litigation, No. 16-3352 (D. Minn. Dec. 19, 2017)]
Bloomberg BNA

[Advert.]

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De-Mystifying Choice in Employee Benefits
"In order to promote a healthy portfolio of healthcare plans ... [1] consider plan design and contributions as the same strategic bundle, rather than separate topics, [2] offer multiple benefit options if, and only if, they are meaningfully differentiated, and [3] estimate the cost of worst-case adverse selection, and include appropriate margin in the budget."
Mercer

HHS Seeks Comments on Limited Wraparound Coverage as an Excepted Benefit
"The final regulations on limited wraparound coverage foreshadowed a reporting requirement that is reinforced by the request for comments in this notice. Plan sponsors and insurers offering (or considering offering) limited wraparound coverage should study the proposed form for the type of information that will need to be reported to HHS, and should watch for further guidance."
Thomson Reuters / EBIA

Health Care Spending Passes $10,000 Per Person in 2016
"[H]ealth care spending in the United States increased 4.3 percent to reach $3.3 trillion. The overall share of [GDP] related to health care spending was 17.9 percent in 2016, up from 17.7 percent in 2015."
Wolters Kluwer Law & Business

Benefits in General

[Guidance Overview]

Tax Professionals Need 2018 PTIN; Continuing Education for Annual Filing Season Program Due by Year End
"[F]ederal tax return preparers ... must renew their Preparer Tax Identification Numbers (PTIN) that expire Dec. 31, 2017. Anyone who prepares or helps prepare any federal tax return, or claim for refund for compensation, must have a valid 2018 PTIN from the IRS.... Failure to have and use a valid PTIN may result in penalties. For those who have a 2017 PTIN, the renewal process takes a few moments online."
Internal Revenue Service [IRS]

Communicating Your Benefits Programs
"[W]hen you create your benefit communication materials, in whatever format you choose, remember to: [1] Focus on 'what's in it for me' from the employee's perspective. [2] Keep content clear and concise. No legal documents, please! [3] Provide the information employees need, when they need it.... [4] [I]nclude a 'call to action.' "
Willis Towers Watson

Savings Needed to Cover Health Care Costs in Retirement Going Up (PDF)
"In 2017, a 65-year-old man needs $73,000 in savings and a 65-year-old woman needs $95,000 if each have a goal of having a 50 percent chance of having enough savings to cover premiums and median prescription drug expenses in retirement.... A couple with median prescription drug expenses needs $169,000 if they have a goal of having a 50 percent chance of having enough savings to cover health care expenses in retirement."
Employee Benefit Research Institute [EBRI]

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

Section 409A Relief for Tax Payments from Section 457A Plans
"[IRS Notice 2017-75] provides that a taxpayer may make a distribution from a grandfathered plan to pay for federal, state, local or foreign taxes due as a result of including the value of the grandfathered plan in gross income, and that distribution will not be treated as an impermissible acceleration under Code section 409A ... or a material modification ... The Notice's relief is limited to the amount of federal, state, local, and foreign income tax withholding that would have been remitted by an employer if there had been a payment of wages equal to the income includible by the service provider."
Trucker Huss

Tax Bill's Impact: Consider Payment of Executive Comp Before Year-End
"Companies subject to the $1 million deduction limitation of Section 162(m) in 2018 may want to consider accelerating payment of compensation otherwise payable in 2018.... Annual bonuses in respect of 2017 are worthy of particular (and quick) examination."
Baker Botts L.L.P.

Tax Reform Redefines 'Reasonable' Compensation for Nonprofit Execs
"The measure, which imposes a 21% excise tax on compensation above $1 million for each of the five highest-paid employees of a nonprofit organization, promises to overhaul the way large hospitals and health systems compete for top talent."
HealthLeaders Media

Selected Discussions
on the BenefitsLink Message Boards

OK to Impose Deadline to File Claims Under Unfunded Severance Plan?
Company sponsors an unfunded severance plan subject to ERISA. They impose a 120-day limit on filing claims. (120 days is calculated from date employee receives notice that he/she won't receive benefit or notice of the amt of his/her benefits.) DOL regulations don't specifically address this, but they do say that the claims procedures can't inhibit or hamper the filing of claims. (The example they give for this is that you can't charge a fee for processing claims.) Is a time limit on filing claims reasonable?
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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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