Health & Welfare Plans Newsletter

March 1, 2018

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Reducing the Cost of Health Care: Current Innovations and Future Possibilities (PDF)
"10 of the country's leading experts on health care policy [developed] recommendations that ... could reduce the cost of health care ... [1] Allow the government to use cost and cost-effectiveness in decision-making; [2] Eliminate fee-for-service; [3] Standardize quality-of-care metrics; [4] Empower patients to be responsible for their own health and health care; [5] Improve care coordination through task shifting; [6] Reduce Emergency Department utilization and readmissions; [7] Develop more specific approaches to improving end-of-life care; [8] Meaningfully address the impacts of adverse childhood experiences."
Texas Medical Center Policy Institute

[Advert.]

Certificate in Global Benefits Management

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

The Certificate in Global Benefits Management provides the knowledge needed to manage a global benefits program. It is for human resource professionals working in U.S.-based organizations and who have assumed responsibility for global benefits. Learn more.


Best-Performing Companies Achieve Significant Health Care Cost Savings
"A group of best-performing companies has achieved a $2,251 per employee per year (PEPY) health care cost advantage over the national average in 2017 ($9,950 compared with $12,201) ... [C]lose to half of best performers (47%) engage employees through their company's social networks (key influencers, testimonials and viral messaging), compared with 21% of high-cost companies. Forty-two percent of best performers use social recognition to boost engagement in health and well-being compared with 23% of high-cost companies, while 28% offer wearable devices for tracking physical activity versus 12% of high-cost companies."
Willis Towers Watson

Supreme Court Reaffirms Ordinary Principles of Contract Law Apply When Interpreting Collective Bargaining Agreements
"The agreement at issue contained a general durational clause that applied to all benefits unless otherwise specified. As such, the Court held that the general durational clause meant the agreement unambiguously provided that CNH retirees were entitled to company-provided health benefits only until the agreement expired and not indefinitely." [CNH Industrial N.V. v. Reese, No. 17-515 (U.S. Feb. 20, 2018, per curiam)]
Seyfarth Shaw LLP

Next Time You Want to Conduct FMLA Surveillance on Your Employee, Have a Good Reason Why
"Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest with their use of leave. Before heading down this path, however, it is critical that surveillance is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements. Where a CBA is involved, surveillance also may need to be bargained with the union."
FMLA Insights

Using Tax Reform to Boost Voluntary Benefits Offerings
"[N]early a third of employers said they plan to redirect some portion of their tax savings to employee rewards. One meaningful way to use tax savings to help employees is by purchasing coverage that protects them from financial risks.... Employers can help protect their employees and provide services for recovery by [1] purchasing identify theft coverage for their employees and offering an optional buy-up for family members ... [2] providing a base level of supplemental health coverage."
Mercer

[Advert.]

Employer Health Care Cost & Quality Congress | Washington DC

Sponsored by World Congress

4/29-5/2/2018 in Washington DC. This event brings together Employers, Brokers, and TPAs. Qualified HR & Benefits Professionals may attend as our guest – See website for details/restrictions & to apply.


DOL Proposed Regs Would Broaden Availability of Association Health Plans
"The DOL proposal imposes nondiscrimination rules preventing member employers from being treated as distinct groups for underwriting purposes. In addition, the proposed regulations retain the requirements that an AHP be formally organized with bylaws or similar formal organizational structure, and that the members control its activities, either directly or through the regular election of directors, officers or association representatives."
Hodgson Russ LLP

Projecting the Impact of Proposed Rules for Association Health Plans (PDF)
16 pages. "If the proposed AHP rule is finalized, ... premiums would rise in the current individual (2.7% to 4 .0%) and small group (0.1% to 1.9%) markets relative to current law, largely due to healthier enrollees shifting into AHPs.... [An] increase in the number of uninsured Americans.... An additional 2.4M to 4.3M people enrolled in AHPs.... Lower premiums for enrollees that enroll in AHPs."
Avalere Health

Tapping Social Security for Parental Leave
"[T]he proposal would create a self-financing mechanism for paid parental leave, removing one of the biggest obstacles to federal legislation establishing a national paid leave program. New parents would essentially borrow against their own future retirement benefits.... A Social Security-for-parental leave scheme ... could be construed as diverting scarce Social Security funds to a purpose different from retirement security.... [T]he proposal makes clear that momentum is building to make paid leave a matter of national policy -- parental, family and sick leave."
Ceridian

CBO Cost Estimate: Repeal Insurance Plans of the Multi-State Program Act of 2017
"S. 2221 would repeal Section 1334 of the [ACA], eliminating multi-state plans (MSPs) offered through marketplaces established by the ACA.... OPM reports that in 2018 Arkansas Blue Cross and Blue Shield is the only insurer to offer MSPs and such plans are only available in Arkansas.... CBO estimates that enacting S. 2221 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028."
Congressional Budget Office [CBO]

Lawsuit Filed by 20 States Claims That Individual Mandate Penalty Repeal Should Topple Entire ACA
"[T]he states argue that the repeal of the individual mandate penalty in 2019 is fatal to the ACA ... [T]hey argue that the Supreme Court upheld the individual mandate as a tax. Now that Congress eliminated the individual mandate penalty beginning in 2019, the mandate is no longer enforceable as a tax and thus is no longer valid. They further argue that the entirety of the ACA relies on the mandate and, without the penalty, the entirety of the ACA is also unconstitutional."
Katie Keith, in Health Affairs

Anticipating This Year's HIPAA Enforcement Trends (PDF)
"In a time of cybersecurity where each state (almost) is developing their own cybersecurity and breach notification rules, there is still a general rule of federal preemption when it comes to HIPAA, with only a narrow exception for additional state laws and regulations that are in excess of the requirements of HIPAA. It is not inconceivable that in 'streamlining' HIPAA regulations that HHS looks for ways to give the states more rights to legislate the security and use of medical information."
Jenner & Block, via Law360

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

IRS Guidance Regarding Section 409A and Pre-2009 Section 457A Deferrals
"Although a nonqualified entity had the opportunity to amend its nonqualified deferred compensation [NQDC] plan pursuant to the transitional relief granted under the 2009 Notice, the applicability of section 457A to an entity could have changed after December 31, 2011.... [Notice 2017-75] and forthcoming regulations offer flexibility to [NQDCs] and taxpayers who may otherwise be adversely affected by the inclusion of Pre-2009 Deferrals in gross income without the corresponding liquidity to pay Federal, state, local, and foreign income taxes owed."
Plan Sponsor Council of America [PSCA]

Selected Discussions
on the BenefitsLink Message Boards

Is This a 'Group Health Plan'?
Small employer currently has no group health plan. If the employer pays a "minute clinic" a flat per-capita fee (say $200) that entitles its employees to utilize the limited medical services the minute clinic provides at a discounted rate (say $40 per visit instead of regular $90 walk-in rate), has the employer established a group health plan subject to the ACA and ERISA? The problem here, of course, is that if this arrangement is a group health plan, it does not comply with the ACA and ERISA for several reasons, including, no free preventive services and no documentation of the "plan."
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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2018 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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