Health & Welfare Plans Newsletter

April 25, 2019

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[Official Guidance]

Text of CMS Proposed Updates to the 2018 Benefit Year HHS-Risk Adjustment Data Validation (HHS-RADV) Timeline (PDF)

"[This memo sets] forth the proposed updates to the 2018 benefit year HHS-RADV timeline. We hope that providing the proposed two extra months to complete the initial validation audit (IVA) will help address prior feedback about HHS-RADV, specifically related to issuers' and IVA entities' ability to collect and review medical records." [Unnumbered document; Apr. 25, 2019]
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

FMLA-Qualifying Leave Must Run Concurrently with Paid Leave Policies

"[E]mployers should review and update relevant leave policies to ensure, among other things, that practices are in place to make the correct leave designation promptly so that employees are afforded the full protection of FMLA as soon as they are eligible. Employers should also be sure to count time off for FMLA-qualifying reasons against the employee's annual FMLA leave allotment and notify the employee that it is doing so, even if the employee is taking leave concurrently under an available paid time off policy."
Akerman

[Guidance Overview]

CMS Releases Final Letter to Issuers

"There are three substantive changes between the draft letter and the final letter; otherwise, the requirements are the same as in the draft letter. First, issuers are not required to offer a 'mirror QHP' that does not cover certain abortion services.... Second, the final letter updates the timeline for when QHP issuers must submit additional transparency reporting information.... Third, the final letter included a new note that SHOPs can set up a toll-free hotline in lieu of a call center."
Katie Keith, in Health Affairs

[Guidance Overview]

Westchester County Earned Sick Leave Law Is Now in Effect

"The law requires employers with five or more employees [who work in Westchester county, New York] to allow eligible employees to accrue one hour of paid sick leave per every 30 hours worked, with a cap of 40 hours of leave per calendar year. Employers with one to four employees must provide the same benefits, but the leave may be unpaid ... Employers must keep records that clearly document the hours worked by employees, earned sick time accrued, and earned sick time used, for a period of three years."
ReedSmith

What Employers Should Know About Third Party Leave of Absence Administration

"The top challenges in leave management were identified [by employers] as 'relying on managers for leave enforcement ... training supervisors and managers on the FMLA, and managing intermittent leave.' ... Using a TPA, however, does not absolve employers of potential liability arising out of incorrect administration of employee leaves."
Liebert Cassidy Whitmore

[Advert.]

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Small Businesses Health Insurance: Costs, Trends and Insights 2018 (PDF)

17 presentation slides. "The average per-person premium for small business health insurance plans decreased 2 percent between 2017 ($416) and 2018 ($409).... The average individual deductible for small business plans increased 14 percent between 2017 ($2,754) and 2018 ($3,140).... In 2018, the average premium per-person under a small business plan was 7 percent lower than the average premium for an individual plan ($409 vs. $440)."
eHealth

Association Health Plans Push On Despite Court Ruling

"Unless the government seeks -- which it has yet to do -- and is granted a stay of the judge's order, 'plans formed under the vacated sections of the rule are illegal,' said Timothy Jost ... Still, that won't mean anything for existing plans if the states or federal regulators choose not to enforce the ruling ... And that could cause more confusion in the marketplace."
Kaiser Health News

Cross-Plan Offsetting May Draw ERISA Litigation

"The district court declined to rule on the general permissibility of cross-plan offsetting under ERISA. Instead, the court reviewed United's specific use of cross-plan offsetting under the plans at issue. Where United insured some, but not all, of the plans used in the offsetting arrangement, the district court found this type of offsetting presented 'a grave conflict of interest.'... On appeal, the Eight Circuit similarly declined to address whether cross-plan offsetting violated ERISA per se.... [At] least one case in the Fifth Circuit has relied on the arguments in Peterson in a similar case against United." [Peterson v. UnitedHealth Group Inc., No. 17-1744 (8th Cir. Jan. 15, 2019)]
Haynes and Boone, LLP

Traditional Wellness Programs Aren't Improving Health Metrics, Lowering Costs

"The study found no change in health metrics and no decrease in cost at the sites that were offered wellness programs. It reports results similar to those from the University of Illinois published by the National Bureau of Economic Research last year."
Willis Towers Watson

House Rules Committee to Hold Hearing on the Medicare for All Act

"[T]he House Rules Committee will hold an original jurisdiction hearing on the Medicare for All Act of 2019 on Tuesday, April 30th at 10am ET ... More than 100 members have already cosponsored the [Act] which would improve and expand the ... Medicare program so that every person living in the United States has guaranteed access to healthcare with comprehensive benefits."
U.S. House of Representatives Committee on Rules

Medicare's Financial Condition: Beyond Actuarial Balance (PDF)

"The program faces three fundamental long-range financing challenges: [1] Income to the HI trust fund is not adequate to fund the HI portion of Medicare benefits; [2] Increases in SMI costs increase pressure on beneficiary household budgets and the federal budget; and [3] Increases in total Medicare spending threaten the program's sustainability.... [T]his issue brief ... examines the findings of the Medicare Trustees Report with respect to program solvency and sustainability."
Medicare Subcommittee, American Academy of Actuaries

Benefits in General

[Official Guidance]

Text of IRS Notice 2019-30: Public Comment Invited on Recommendations for 2019-2020 Priority Guidance Plan (PDF)

"The Treasury Department's Office of Tax Policy and the Service use the Priority Guidance Plan each year to identify and prioritize the tax issues that should be addressed through regulations, revenue rulings, revenue procedures, notices, and other published administrative guidance.... Please submit recommendations by Friday, June 7, 2019, for possible inclusion on the original 2019-2020 Priority Guidance Plan."
Internal Revenue Service [IRS]

[Opinion]

New on the Supreme Court Docket: ERISA and 'Damages' in Equity

"[On April 22] the Supreme Court called for the views of the Solicitor General on Putnam Investments, LLC v. Brotherston, a case about the burden of proving causation for losses in ERISA suits. There is a 6-4 circuit split about whether the ERISA plaintiff or the fiduciary defendant has the burden of persuasion regarding whether the fiduciary defendant's breach caused the loss.... [T]here are at least three reasons to think the fiduciary defendant has this burden."
Reason.com

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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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