Health & Welfare Plans Newsletter

November 8, 2018

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[Official Guidance]

Text of IRS 2019 Instructions for Forms 1099-SA and 5498-SA: Distributions From an HSA, Archer MSA, or Medicare Advantage MSA, and HSA, Archer MSA, or Medicare Advantage MSA Information (PDF)

"Due to the very low volume of paper Forms 1099-SA and 5498-SA received and processed by the IRS each year, these forms have been converted to an online fillable format.... File Form 1099-SA, Distributions From an HSA, Archer MSA, or Medicare Advantage MSA, to report distributions made from a health savings account (HSA), Archer medical savings account (Archer MSA), or Medicare Advantage MSA (MA MSA). The distribution may have been paid directly to a medical service provider or to the account holder. A separate return must be filed for each plan type." [Also released: 2018 Form 5498-SA and 2019 Form 5498-SA.]
Internal Revenue Service [IRS]

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[Guidance Overview]

Paid Sick Leave Bug Spreads to Westchester County, NY

"Employers with 5 or more employees as defined by the [Earned Sick Leave Law (ESLL)] must allow employees to earn and use paid sick leave ... Employee is broadly defined ... [I]t is likely that employers can frontload eligible employees at least 40 hours of sick leave at the start of each year in order to satisfy the ESLL's accrual obligations.... 'Family member' is expansively defined ... Employers' records must clearly document eligible employees' hours worked and earned sick time accrued and taken, over a three year period."
Seyfarth Shaw LLP

Making HSA-Qualified Health Plans Work for Low-Income Employees

"Key elements of this strategy include: [1] Offering employees a matching contribution of $250 to $500.... [2] Offering an annual upfront employer HSA contribution seed of $500 to $1,000 that helps workers and their families, especially those with lower incomes, cover healthcare costs and establish a financial cushion early in the plan year. [3] Making employer contributions income-tiered so that low-income employees and their families get the full employer seed amount while higher-income workers get progressively lesser amounts."
HealthEquity

Editor's Pick Healthcare After the 2018 Midterm Election: As Control Shifts, Certainty Settles In (PDF)

12 pages. "The Democratic success in the midterm elections likely means Republican lawmakers will not undertake a second attempt in the next two years to try to repeal and replace as much of the ACA as possible through a single piece of legislation. Yet President Donald Trump and his administration likely will continue to utilize regulatory agencies in an attempt to transform Medicaid, roll back industry regulations, address drug pricing and streamline reviews of medical products. All of these changes can be made without congressional input."
PwC Health Research Institute

Recent Trump Administration Proposals Aimed at Lowering Drug Costs

"The first proposal would require any pharmaceutical company marketing a drug covered by Medicare or Medicaid with a list price greater than $35 ... to disclose the price in commercials.... The second proposal would establish an 'international index' of the average prices paid for prescription drugs in other industrial countries in order to determine how much to pay for drugs covered by Medicare Part B."
Stradley Ronon

DOL Lawsuits Show Increased Enforcement of HIPAA Wellness Rules

"Recent lawsuits against certain employers assert that their health-contingent outcome-based wellness programs don't comply with the HIPAA wellness rules, generally by not offering a [reasonable alternative standard (RAS)].... Most of the participants in the recent DOL lawsuits who did not confirm they had quit smoking -- that is, were tobacco free -- for some duration, such as six months, had to pay surcharges. Moreover, the employers failed to give participants who met the RAS a way to avoid the surcharge retroactively, which is required under HIPAA's wellness rules."
Willis Towers Watson

EEOC Guidance on Wellness Plans: Still Waiting

"The current EEOC's regulatory agenda is set to draft guidance by June 2019. Given the typical timeline of issuance of proposed regulations, a period for public comments, followed by the issuance of final regulations, it may be years before we have clarity on permissible wellness plan incentives under the ADA and GINA.... [T]iming for vacating the existing EEOC regulations on the wellness incentives -- January 1, 2019 -- has not changed."
Findley

Health Care Coverage: How Have Workers Fared Under the ACA?

"Overall, employment increased by 8.2 percent as coverage rose by 9.6 percent. Among employees earning less than $15 per hour (jobs in food preparation and service; farming, forestry, and fisheries; building and grounds maintenance; personal care; health care support; and transportation and material moving), ESI coverage increased by 6.8 percent, alongside non-ESI coverage that increased by 71.1 percent (e.g., Medicaid, marketplace coverage)."
Robert Wood Johnson Foundation

Federal Circuit Declines to Rehear Risk Corridors Case

"The request for en banc review came from four insurers ... [following] a mid-June 2‑1 decision by a three-judge panel of the Federal Circuit that the government does not have to pay health insurers that offered qualified health plans more than $12 billion in unpaid risk corridors payments." [Moda Health Plan  v. U.S., Nos. 2017‑1994, 2017‑1224 (Fed. Cir. Nov. 6, 2018)]
Katie Keith, in Health Affairs

[Opinion]

The New Health Care Agenda: Gridlock, Lots of Hearings

"No new health legislation of any significance will pass in this Congress. Democrats in the House will try to come together on a health agenda for the party while their presidential candidates pursue their own platforms. Democratic oversight of the administration's actions in the House will be unremitting and in the news. And most of the real action affecting people will be in the states."
Drew Altman, Kaiser Family Foundation, via Axios

Selected Discussions
on the BenefitsLink Message Boards

2019 DCAP Calculations

Did the Tax Cuts and Jobs Act affect dependent care calculations?
BenefitsLink Message Boards

Cafeteria Plan, HSA Contribution, HDHP on Exchange

Employer wants to offer a MEC/skinny plan to get out of the "A" penalty, and make HSA contributions through a cafeteria plan to employees who get individual HDHP coverage on the exchange. [1] Does a skinny plan disqualify the individual from making HSA contributions (assume it's the minimum MEC to get out of the "A" penalty)? [2] If not, can the employer make HSA contributions through a cafeteria plan for employees who have HDHP coverage through the exchange? Would this violate any EPP rule (Notice 2013‑54 et al.) or other rule?
BenefitsLink Message Boards

Press Releases

HERO Announces Health and Well-Being Awards Winners
Health Enhancement Research Organization [HERO]

Most Popular Items in the Previous Issue

Text of Agency Final Regs: Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the ACA
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]; Internal Revenue Service [IRS]; and U.S. Department of Health and Human Services [HHS]

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

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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