Health & Welfare Plans Newsletter

April 3, 2018

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[Guidance Overview]

Transportation Benefits are More Expensive in 2018
"[E]mployers will no longer be able to take deductions on qualified transportation fringe benefits provided to employees. This includes deductions for the costs associated with paying for employee qualified parking, transit passes, qualified bicycle commuting reimbursements, and transportation in commuter highway vehicles.... Any funds paid or incurred by a tax exempt employer for any qualified transportation benefit, any parking facility used in connection with qualified parking, or any on-premises athletic facility will be treated as unrelated business taxable income (UBTI) under the new law."
Graydon

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2017 San Francisco HCSO Annual Reporting Form Released
"If you are a San Francisco employer, April signals the start of data collection to complete the 2017 Health Care Security Ordinance (HCSO) Annual Reporting Form. The due date for this filing is April 30, 2018.... There is a new Employee Voluntary Waiver Form for use as of November 1, 2017. This is an updated version of the form that permits employees to voluntarily waive their right to employer health care expenditures under the HCSO."
ABD Insurance & Financial Services

HIPAA in Due Diligence, Part 2: Cloud Server Data and HIPAA Compliance
"For an online or virtual data room administrator, opening access to an inquiring stakeholder, valuator, or reviewer party to an acquisition target company's documentation may be as simple as a few clicks and perhaps an email or two. However, if any document contains personal or identifiable health information, a number of privacy and data protection regulations may deem access to such information by an unauthorized party to be a violation.... HIPAA may impose significant penalties on target providers posting the PHI and the unauthorized parties accessing the PHI alike."
McGuireWoods, LLP

What to Know About the First Reference-Based Pricing Lawsuit
"Supporters of this strategy often present reference-based pricing as a more rational, transparent and cost-effective method for paying for healthcare. The risk, however, is that without a negotiated contract, hospitals can balance bill employees.... [A] a Virginia hospital has been pursuing an $84,000 balance bill from a former patient for nearly four years and through two separate courts."
Employee Benefit News

CMS Lowers the Cost of Prescription Drugs for Medicare Beneficiaries
"[A]ctions that CMS is finalizing to lower the cost of prescription drugs include: [1] Allowing for certain low-cost generic drugs to be substituted onto plan formularies at any point during the year ... [2] Increasing competition among plans by removing the requirement that certain Part D plans have to 'meaningfully differ' from each other ... [3] Increasing competition among pharmacies by clarifying the 'any willing provider' requirement[.]"
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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CMS Sets 3.40 Percent Hike in 2019 Payments to Medicare Insurers
"[CMS] said it would increase by 3.40 percent on average 2019 payments to the health insurers that manage Medicare Advantage insurance plans ... a higher-than-expected rise reflecting a projection of higher medical cost growth. The rate, which affects how much insurers charge for monthly healthcare premiums, plan benefits and, ultimately, how much they profit, represents an increase over the 1.84 percent increase proposed by [CMS] in February."
Reuters

Iowa Authorizes Non-ACA-Compliant Plans
"Iowa, which just adopted new legislation to expand access to non-ACA-compliant plans. The five-page law takes a different tack than Idaho by exempting health coverage offered by a 'nonprofit agricultural organization' from state health insurance laws. Assuming that a nonprofit agricultural organization such as the Iowa Farm Bureau (IFB) meets the requirements of the new law, the coverage it offers 'shall be deemed not to be insurance.' This means that IFB will be able to offer coverage that [1] does not comply with the ACA or other state requirements, such as benefit mandates and rating rules; and [2] is largely unregulated under state law (aside from filing a certification and regulation of third-party administrators)."
Health Affairs

Kaiser Health Tracking Poll: Non-Group Enrollees, March 2018
"This report examines people's experiences with the current health insurance market focusing on individuals who currently have health insurance they purchased themselves ... In the first half of 2017, 10.1 million people had health insurance that they purchased through the ACA exchanges or marketplaces. For comparison, the report also examines individuals ages 18-64 without health insurance ('uninsured') as well as those who get their insurance through their employer ('employer-sponsored insurance')."
Henry J. Kaiser Family Foundation

[Opinion]

ERIC's Written Testimony on Louisiana's Reinsurance Program
"Assessments on employer-sponsored insurance, such as the one proposed in House Bill 472 to fund a reinsurance program, penalize businesses that have been a source of quality, affordable health insurance for decades. The result will be higher costs for employers and workers, reduced stability for some employer-sponsored plans, and administrative burdens that jeopardize the national uniformity of benefits administration for plans governed by ERISA[.]"
The ERISA Industry Committee [ERIC]

Benefits in General

[Guidance Overview]

New DOL Disability Claims Regs Now Effective
"[M]ost notable ... is the DOL's new 'deemed exhausted' rule, under which a claimant is deemed to have exhausted the administrative remedies available under a plan -- and is therefore permitted to proceed immediately to litigation -- if a plan fails to strictly adhere to any of the claims procedures[.]"
Robinson & Cole LLP

DOL Replaces Guidance on Employee Classification
"The 2014 guidance has been replaced by guidance from 2008. The 2008 guidance does not contain the statement that 'most workers are employees.' However, this guidance does include the same 'economic realities' test present in the 2014 guidance, under which determination of employee status is made by considering [specified] factors[.]"
QBI

Executive Compensation
and Nonqualified Plans

Stock Options Are Not as Flexible as You May Think
"Many employers also choose to place limits on how long employees are permitted to exercise options following termination of employment in order to: [1] limit the upside benefit to terminated employees as a result of subsequent appreciation in the value of the awards and/or [2] help employees preserve the tax-favored status of their ISOs ... If the options are NSOs (or were originally intended to be ISOs, but no longer qualify) that are structured to be exempt from Code Section 409A ... then the term may only be extended in limited circumstances without adverse tax consequences[.]
Foley & Lardner LLP

Another Good Reason to Make Sure Your Severance Plan Is Subject to ERISA
"Former employees who had accepted an offer under the first severance program sued for the better benefit to which they could have been entitled under the second program. The lawsuit alleged a violation of the Delaware Wage Payment and Collection Act (which also extended the time limit for filing their claims). If the plans had been made subject to ERISA, this state law claim most likely would have been preempted." [Giradot v. The Chemours Company, No. N17C-10-148 (Del. Mar. 26, 2018)]
Winston & Strawn LLP

Press Releases

ESOP Association & Dolores Lawrence
Blue Ridge ESOP Associates

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David Rhett Baker, J.D., Editor and Publisher
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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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