Health & Welfare Plans Newsletter

July 24, 2018

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Defined Benefit Implementation Project Manager
Transamerica
in MA

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U.S. Retirement and Benefits Partners
in CA

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in CA

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in IL

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Exeter 1031 Exchange Services, LLC
in CA, WY

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The University of Chicago
in IL

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[Guidance Overview]

Determining the Status of an Association Health Plan as 'Fully-Insured'

"While AHPs can be either fully-insured or self-funded, the final regulation provides rules that are generally more useful to the former than the latter. Because of the preemptive force of ERISA, fully-insured arrangements are more lightly regulated under state law than their self-funded counterparts. This post addresses the question of what certification is needed, if any, to establish that an AHP is fully-insured."
Alden Bianchi, for Mintz Levin

[Advert.]

SALGBA Regional Conference for public sector benefit professionals

Sponsored by SALGBA [State and Local Government Benefits Association]

SALGBA is holding a Regional Conference August 20-21 in Huntsville, AL. The conference is being hosted by the City of Huntsville. More information please visit www.salgba.org.


[Guidance Overview]

Association Health Plans Offer New Opportunities for Health Coverage

"The group or association must have at least one substantial business purpose unrelated to the provision of benefits, even if it is not its principal purpose. This might, for example, be satisfied by providing education or lobbying. The group or association must have a formal organizational structure with a governing body and bylaws or other similar indications of formality. It appears that formal 'association' or 'tax-exempt' tax status is not required, but what level of formal structure will be required is still unknown."
Nelson Mullins

Frequently Overlooked Mistakes in HIPAA Compliance

"HIPAA requires that disclosure of health care records be minimized to the extent necessary to accomplish the objective. In other words, a contractor or other entity with access to personal health information (PHI) is only entitled to those data points necessary to perform their function, e.g. names and addresses.... HITECH and the Security Rule require a security assessment and the institution of safeguards to protect against reasonably anticipated disclosure.... [I]ncorporating compliance into the succession plan at the earliest possible stage is the prudent approach."
Poyner Spruill LLP

Model FMLA Forms Set to Expire on July 31

"The [DOL's] model Family and Medical Leave Act (FMLA) notices and medical certification forms expire on July 31, 2018. However, the new model forms have not yet been released. The current FMLA forms were originally due to expire on May 31, 2018, but the expiration date was first extended to June 30, 2018 and then to July 31, 2018."
Epstein Becker Green

Pennsylvania Employers Look to Health Benefit Plan Design Changes to Reduce Rising Costs

"45 percent of respondents have a spousal coverage provision for medical and prescription drug insurance. Of those, 35 percent require a surcharge to cover a spouse. Another 50 percent of respondents do not allow coverage if the spouse has access to coverage through their own employer.... 42 percent of companies surveyed offer cash compensation to employees who waive medical and prescription drug insurance, an increase from ... 33 percent in 2015. The average cash compensation amount is $2,054."
Conrad Siegel Actuaries

Savings Available Under Full Generic Substitution of Multiple Source Brand Drugs in Medicare Part D (PDF)

"The Medicare program, through its Part D plans, spent almost $9 billion on brand name drugs when therapeutically equivalent generics were available. If these prescriptions were instead dispensed as generics, the Part D program and its beneficiaries would have saved almost $3 billion."
Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

2017 Annual Report of HHS Projects to Build Data Capacity for Patient-Centered Outcomes Research (PDF)

72 pages. "The goal of the Office of the Secretary Patient-Centered Outcomes Research Trust Fund (OS PCORTF) is to strengthen national data capacity and infrastructure for patient-centered outcomes research (PCOR) in order to advance a patient-centered health care system that is characterized by evidence-based care and integrated decision-making between providers, patients, and caregivers. This Portfolio Report provides a synopsis of the 21 OS-PCORTF projects active in calendar year 2017."
Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

Benefits in General

Internal Statutes of Limitation Under ERISA (PDF)

16 pages. "In light of the heightened frequency of 401(k) plan litigation, it is appropriate for plan sponsors to include favorable procedural rules as part of their claims procedures. One such rule is an internal statute of limitations, which the Supreme Court has held is permissible in an [ERISA] plan so long as it is reasonable and there is no controlling statute to the contrary. As a best practice, notice of any internal statute of limitations should be provided."
The Wagner Law Group, via Benefits Law Journal

Tips for Successfully Arguing Against Attorney Fee Awards in ERISA Cases

"Courts apply additional criteria to decide whether to award fees...and these criteria help frame arguments to oppose Plaintiff's request for fees... even when they achieve 'some success on the merits.'... When determining to award fees in the Sixth Circuit, the court applies the five-factor King test ... similar to tests applied by a majority of the other circuits." [Guest-Marcotte v. Life Insurance of North America, No. 15-10738 (E.D. Mich. July 17, 2018)]
Lane Powell PC

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

A New Era in Compensatory Equity Offerings?

"The elimination of the comment period means that the SEC did not issue any guidance (transition or otherwise) on the practical implications of the amendment to Rule 701(e). However, the SEC's release provides that, if the effective date of the final rule ... occurs during an issuer's ongoing 12-month testing period, the issuer may rely on the increased $10 million disclosure threshold immediately."
Pillsbury Winthrop Shaw Pittman LLP

[Guidance Overview]

SEC Amends Rule 701, Issues Concept Release on Modernizing Employee Offerings

"The SEC also issued a concept release on July 18, in which it requested public comment to further modernize Rule 701, together with Form S-8, in light of the evolution of the forms and types of equity compensation.... The SEC is seeking comment as to whether Rule 701 should be further revised[.]"
Morgan Lewis

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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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