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[Guidance Overview]

Proposed Mental Health Parity Guidance Focuses on Nonquantitative Treatment Limitations

"[T]he description of this NQTL in the FAQs is noteworthy because the example used involves 'applied behavioral analysis' (ABA) for treatment of autism spectrum disorder. Many insurers and plans have excluded ABA on the basis that the treatment is experimental or investigational and this has spawned numerous lawsuits alleging violations of state and federal mental health parity laws. Plans that do cover ABA but apply age or other treatment limitations on ABA might also face litigation if the limits are not in parity with limits applied to medical/surgical benefits."
Proskauer's ERISA Practice Center


Health Savings Accounts (HSAs): Essential Compliance Updates

Sponsored by Lorman and BenefitsLink

June 13 webinar. Avoid legal missteps under ERISA when administering your company's health savings accounts. Discount for BenefitsLink readers.

[Guidance Overview]

Duluth Joins Twin Cities in Enacting Paid Sick and Safe Time Law

"The ordinance applies to private employers with five or more employees, regardless of whether employees work in Duluth. Unlike the law in St. Paul, an employer is not required to be physically located in the city. Contrary to Minneapolis, Duluth does not impose an unpaid leave requirement on 'small' employers ... Unlike the Minneapolis and St. Paul laws, the ordinance does not contain an express anti-interference or an anti-retaliation provision, though anti-retaliation protections are implied in the notice employers must provide employees."

Text of DOJ Response Brief: Administration Will Not Defend Constitutionality of ACA (PDF)

"Although Plaintiffs are likely to succeed in part on the merits, they are not entitled to a preliminary injunction. As Plaintiffs agree that the mandate will not become unconstitutional until the tax is eliminated in 2019, immediate relief is not warranted. That said, because this is a pure question of law on which the Plaintiffs and Defendants do not disagree, this Court should consider construing Plaintiffs' motion as a request for summary judgment and then entering a declaratory judgment that the ACA's provisions containing the individual mandate as well as the guaranteed-issue and community-rating requirements will all be invalid beginning on January 1, 2019." [Texas v. U.S., No. 18-167 (N.D. Tex; brief filed June 7, 2018)]
U.S. Department of Justice [DOJ]

Court Allows Medical Provider to Appeal Claim Denial on Behalf of Plan Participant

"An assignment of benefits is not the same as identification of an authorized representative permitted to act on the participant's behalf. The practical effect of this distinction under the DOL claims procedure regulations is that a participant who has only executed an assignment of benefits must receive all required notifications regarding the claim, even if the plan will ultimately pay the provider if the claim is approved." [Abdilnour v. Blue Cross of Idaho Health Serv. Inc., No. 17-412 (D. Id. May 4, 2018)]
Thomson Reuters / EBIA

Trump Administration Declines to Defend the ACA

"The states had asked the court to enjoin the entire ACA or, at a minimum, the individual mandate and the ACA's provisions on guaranteed issue and community rating. In a highly unusual move, the DOJ declined to defend these provisions and agreed with the plaintiffs that the ACA's individual mandate is unconstitutional. The Department asked the court to strike down the mandate alongside the law's guaranteed issue and community rating provisions, which it believes are inseverable from the mandate.... Aside from these three provisions, the DOJ argues that the rest of the ACA should remain intact even if the mandate is found to be unconstitutional."
Katie Keith, in Health Affairs

The Hidden Liability in Group Long Term Care Insurance Plans

"[A] recent compliance audit ... for [one client] revealed billing errors of more than $27,000. The majority of the inaccuracies were found in unreported terminations of employees. There were some eligible employees that were never added to the plan, some incorrect dates of birth and names ... There were also inexact deduction amounts as well as deductions taken from employees' payroll for coverage they did not have."
United Benefit Advisors

Retiree Healthcare Back in Focus

"[E]mployer plan eligibility rules must be amended to include any class of employees not actively at work or the plan may find itself with uncovered stop loss claims. If the employer prepares its reporting under Generally Accepted Accounting Principles, rules require that the cost of retiree benefits be accrued in the year the liability arises (i.e. during the working years) and actuarial studies are required."
Frenkel Benefits

Vacation Bonuses: Some Employers Paying Workers to Chill

"More than half of Americans left paid vacation days unused in 2017, adding up to 705 million unused days ... In 2016, American employers held a $272 billion vacation liability on their balance sheets ... The U.S. Travel Association, which sponsors the Project Time Off initiative, pays its employees $500 just to take all their vacation for the year. In 2014, the first year the benefit was offered, the association went from having 19 percent of employees using all of their leave to 91 percent. The cost was $26,000 to give the bonuses, and the association cut its vacation liabilities by over $36,000[.]"
Bloomberg BNA

Benefits in General

Number of Contingent Workers Inches Higher

"The number of U.S. workers classified as 'contingent' (including those in the gig economy) increased from 5.7 million to 5.9 million ... Employers may want to revisit staffing logistics, assess risk related to wage-and-hour laws, re-evaluate benefits, reclassify workers as employees or independent contractors, and even implement creative employee-relations solutions[.]"
Jackson Lewis P.C.

What the Employee Benefits Business Can Learn from Retail Industry

"[As] employer health plan design continues to shift costs onto employees, and more retirement plans move from a defined benefit model to a defined contribution model, the 'best-seller' benefits are no longer enough to differentiate employers in the eyes of workers.... [T]he greatest opportunity for employers, in terms of both talent attraction and cost-effectiveness, lies in more non-traditional voluntary benefits that have begun to emerge."

Executive Compensation
and Nonqualified Plans

Fears Over Downside to Clawbacks May Be Unwarranted

"[T]he great majority of firms in the S&P 1500 have on their own adopted rules that enable them to claw back compensation that executives received on the basis of misstated financial reporting.... [A recent study] suggests that companies with clawback rules generally seek to protect accounting integrity. And they do so while maintaining, and even enhancing, the advantages of performance-based CFO pay."

Press Releases

Fixed Annuities On The Rise
Insured Retirement Institute [IRI]

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David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager

BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2018, 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, 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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