Health & Welfare Plans Newsletter

March 19, 2019

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[Guidance Overview]

DOL Reiterates That Employees Can't Decline Federal FMLA

"The DOL directive ... does not address employer compliance with other State medical leave laws ... Under Wisconsin law, the employee may determine if WFMLA leave will be used during the absence period unless the employer leave to be used by the employee and the WFMLA leave are for the same reasons. Then, the employee use of employer leave will be viewed as an election to use WFMLA leave for the period of absence. This may result in a federal/Wisconsin difference in the use, and availability, of FMLA leave."
von Briesen & Roper, s.c.

[Advert.]

Wellness Programs: EEOC Enforcement Actions and Complying with Federal and State Laws

Sponsored by Lorman and BenefitsLink

Apr. 11 webinar. Review design and taxation of incentives, laws that prohibit discrimination based on health factors, and exceptions for certain wellness and supplemental plans. BenefitsLink discount.


[Guidance Overview]

I Want to Save My FMLA for a Rainier Day

"The reasoning of the Government hinges on the premise of the law that the burden is on the employer to be aware of this law, and its application to the circumstances of its employees.... The [DOL] is now formally extending this duty one step further, saying that, in doing so, the FMLA timeclock must be triggered by the employer."
Brouse McDowell

[Guidance Overview]

DOL: Employers May Not Delay FMLA Designation, Even at Employee's Request

"Although the opinion letter appears employer-friendly, in that employers have a solid basis for declining an employee's request to first exhaust paid leave before dipping into their unpaid FMLA leave entitlement, the key underpinning of the opinion letter is the DOL's desire to ensure that, when an employee takes leave for an FMLA-qualifying reason, the employee receives the protections of the FMLA, both with respect to the ability to take leave in the first place, and with respect to other protections such as the right to reinstatement following the conclusion of such leave."
Bryan Cave Leighton Paisner LLP

Dueling Paid Leave Plans Introduced In Congress

"The latest Democratic paid sick leave plan -- The Healthy Families Act -- would allow many employees to earn up to a week of paid leave for a variety of reasons.... The FAMILY Act would create a national insurance fund to provide 12 weeks of paid family and medical leave to workers for pregnancies, the birth or adoption of a child, to recover from a serious illness, or to care for a seriously ill family member.... [Two Republican senators] are championing the [CRADLE] Act, which would enable new parents to receive up to three months of paid parental leave. The catch: employees would agree to postpone access to Social Security Benefits for a certain period of time in order to fund the benefit."
Fisher Phillips

17 Ways Employers Are Fighting Prescription Drug Costs

"Nearly all (97.6%) organizations responding to the survey offer prescription drug benefits, either as part of their health plan (83.1%) or through a separate plan (14.5%).... Responding organizations use a number of cost-sharing initiatives to ease the burden of rapidly escalating costs... Survey respondents also employ a diverse range of strategies to limit the use of certain drug types.... Responding organizations employ a range of drug access controls to control plan costs.... Finally, organizations have various prescription drug purchasing and administrative initiatives."
International Foundation of Employee Benefit Plans [IFEBP]

ACA Litigation Round-Up: Risk Corridors, CSRs, AHPs, and Short-Term Plans

"Many continue to watch the global challenge to the ACA in Texas (now pending before the Fifth Circuit Court of Appeals with the next round of briefs due in late March), especially after a Maryland's bid to have the ACA declared constitutional was dismissed because the state did not have standing to sue.... This post provides a brief status update on ongoing litigation over the risk corridors program, cost-sharing reductions, the risk adjustment program, association health plans, and short-term plans."
Katie Keith, in Health Affairs

HHS Provides Recommendations to Reform the Health Care System

"[HHS] recommends increasing provider mobility by allowing easier transfer of board licensing across states. The out-of-state issue is particularly relevant for telehealth, since it would preclude physicians from practicing 'out of state' if the patient is calling in across state lines.... HHS also proposes loosening state regulation of network adequacy standards ... this would drive down cost but decrease choice.... HHS argues for more high-deductible health plans (HDHP).... HHS also supports having the government collect quality measures ... [and] recommends pivoting away from provider value-based purchasing system, as they are two burdensome, too crude, and sacrifice unmeasured quality for measured quality[.]"
Healthcare Economist

[Opinion]

The Challenge of Selling Health Insurance Across State Lines

"Health insurance premiums largely reflect the underlying costs associated with the delivery of medical care, rather than the degree of insurance market competition.... Yet, health insurance premiums vary substantially between states, and there are often major price disparities in neighboring counties across state borders.... If individuals were allowed to purchase plans from other states, regulators in each state would be forced to put the interests of consumers above those of insurers and the rest of the healthcare industry."
Manhattan Institute for Policy Research

Selected Discussions
on the BenefitsLink Message Boards

HRA Reimbursement for Expense Subsequently Paid

Employee participates in a self-insured health plan with an HRA feature. Employee receives medical services from out-of-network provider and is balance billed $1,000 for the cost of services that exceeded what plan paid. Employee submits claim for $1,000 to HRA and receives reimbursement. Before employee pays balance bill, plan reevaluates the claim and pays the provider the $1,000, thus the employee now owes $0 to the provider. The employee did not initiate or participate in the reevaluation. What is the consequence of these events? Can the employer seek to have the employee return the $1,000? If the employee does not or the employer does not wish the employee to do so, does the $1,000 become taxable to the employee? If it does become taxable compensation is it the obligation of the employer to treat it as W-2 compensation or is it up to the employee to address?
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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 2019 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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