Health & Welfare Plans Newsletter

May 24, 2019

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Jobs

Call Center Specialist
Alerus
in Arden Hills MN

COBRA/FSA Administrator
Pension Dynamics Company LLC
in Pleasant Hill CA

Employee Benefits Investigator
Employee Benefits Security Administration, U.S. Department of Labor
in Pasadena CA / Telecommute

Employee Benefits Investigator (Recent Graduate)
Employee Benefits Security Administration, U.S. Department of Labor
in Pasadena CA / Telecommute

Senior Enforcement Advisor
Employee Benefits Security Administration, U.S. Department of Labor
in Boston MA / New York NY / Philadelphia PA / Silver Spring MD / Atlanta GA / Fort Lauderdale FL / Covington KY / Chicago IL / Kansas City MO / Dallas TX / Pasadena CA / San Francisco CA / Seattle WA / Telecommute

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[Guidance Overview]

HHS Proposes to Revise ACA Section 1557 Rule to Enforce Civil Rights in Healthcare, Conform to Law, and Eliminate Billions in Unnecessary Costs

"[A] federal court preliminarily enjoined the rule's gender identity and termination of pregnancy provisions on a nationwide basis, finding them contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. Because the preliminary injunction continues to be in effect, HHS cannot, and has not since the date of the injunction, enforced the rule's provisions the court said are likely unlawful. The proposed rule would revise the provisions subject to those injunctions to conform with the plain understanding recognized by the court." [HHS also published a Factsheet on Section 1557, and an advance copy of the Proposed Regulations.]
U.S. Department of Health and Human Services [HHS]

[Advert.]

Association Health Plans, Time to See Them From a Whole New View Point

Sponsored by Lorman and BenefitsLink

June 11 webinar will reintroduce you to Association Health Plans (AHPs) and Multiple Employer Welfare Arrangements (MEWAs) and help you weigh the pros and cons of these programs. BenefitsLink discount.


District Court Refuses to Enforce an ERISA Anti-Assignment Provision

"The problem was the document in which the anti-assignment provision appeared. It was not in a formal plan document, nor in a Summary Plan Description or a Statement of Material Modification. It was contained in the Administrative Services Agreement (ASA) between the plan insurer and the plan sponsor. The court determined that, for purposes of enforcing a provision against plan participants, the provision must appear in a 'plan document.' " [Long Island Neurosurgical Associates, P.C. v. Highmark Blue Shield, No. 18-81 (E.D.N.Y. Mar. 20, 2019)]
Jackson Lewis P.C.

Court Finds No COBRA Obligations Toward Employee Terminated for Gross Misconduct

"[B]ecause gross misconduct terminations tend to involve heightened emotions and disputed facts, there is an increased risk of a costly court challenge. The employer in this case prevailed on its gross misconduct claim, albeit for procedural reasons, and this court declined to assess penalties ... But an employer that is wrong about gross misconduct can face not only an award of retroactive COBRA coverage but also the imposition of penalties of up to $110 per day for failure to provide required notices." [Rodriguez-Soto v. Presbyterian Med. Anesthesia Grp., No. 17-1477 (D.P.R. Mar. 22, 2019)]
Thomson Reuters / EBIA

FMLA Regs May Soon Get Revamped to Ease Employer Burdens

"[The DOL's] spring regulatory agenda ... contained a noteworthy entry calling for information to help revise the statute's regulations to help 'reduce administrative and compliance burdens on employers.' What do employers need to know about this impending development, and how might they influence this process to their benefit?"
Fisher Phillips

Something Is Afoot at the DOL: Could New FMLA Regs or Forms Be on the Horizon?

"Taking the announcement at face value, it certainly appears to suggest that the DOL is interested in revisiting the regulations to determine the ongoing pain points for employers and employees and how regulatory changes could enhance FMLA administration.... Whether it's the scope of information an employer can obtain on a certification, the parameters of recertification and second opinions, or how employers can ensure intermittent leave is being used in the manner for which it was intended, there is plenty to clarify in these regulations!"
FMLA Insights

Network Matching: An Attractive Solution to Surprise Billing

"One solution to most instances of surprise billing is to simply eliminate the possibility of being treated by an out-of-network emergency, ancillary, or similar clinician at an in-network facility.... [O]ne approach ... would require these facility-based clinicians to contract with every health plan that the facility at which they practice accepts (or alternatively, choose to secure payment from the hospital rather than insurers)."
The Brookings Institution

Do Accumulating HSA Balances Affect Use of Health Care Services and Spending?

"[This study finds] that as individuals build up balances in HSAs, they use more health care services than they otherwise would. In essence, HSA balances may blunt the cost-reducing effect of high-deductible health plans over time.... [E]mployers may want to consider the impact of the size of the plan's deductible. Another approach is to explore education around the long-term benefits of saving the HSA balance for health care expenses in retirement."
Employee Benefit Research Institute [EBRI]

Tips for a Successful Open Enrollment

"[Y]our strategy needs to involve sending bite-size chunks of information throughout the year.... [W]ith advancements in technology, print and digital pieces take on many different forms.... Write your titles in ways that capture [employees'] attention and provide information using minimal words.... Take out the jargon ... Have fun with themes ... Ask for feedback."
WorldatWork

Insecure Server Affects PHI of 300,000 Individuals, Leading to $3 Million Settlement

"The imaging service may have made a significant misstep when it prematurely concluded that no patient PHI was exposed despite the alert from the FBI. Its later admission that PHI of more than 300,000 patients was exposed set the stage for this significant settlement and comprehensive [corrective action plan (CAP)]."
Thomson Reuters / EBIA

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Workplace Wellness Can Deliver a Healthy ROI

"One study found that less than half of eligible employees participate in their plan's initial assessment phase, and the participation rate drops to less than 20% when programs actually kick in.... [Factors] important to achieving desired goals with wellness programs [include]: Leadership engagement on all levels ... Alignment ... with the organizational core mission and values, objectives, operations and cultural norms.... Opportunities for engagement ... Communication ... Continuous evaluation ... Quality of programming."
Sales & Marketing Management

Administration Preparing Executive Order on Health-Cost Disclosure

"President Trump is expected to release an executive order as early as next week to mandate the disclosure of prices in the health-care industry ... The order could direct federal agencies to pursue actions to force a host of players in the industry to divulge cost data ... The administration is also looking at using agencies such as the Justice Department to tackle regional monopolies of hospitals and health-insurance plans over concerns they are driving up the cost of care[.]"
The Wall Street Journal; subscription may be required

Public Health Insurance Legislation Announced in Connecticut

"[The proposed bill would] create a public option that will allow individuals and small businesses to purchase health insurance through the state. The proposal also calls for re-establishing the individual mandate ... The bill would also have the state seek permission from the federal government to buy prescription drugs from Canada and calls for taxing opioid manufacturers."
The Wall Street Journal; subscription may be required

ACA Litigation Round-Up

"ACA challenges are now under consideration by the Supreme Court and federal appellate and district courts across the country. This post provides a 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

Benefits in General

District Court Rejects Attempt to Certify Class Against Third-Party Plan Administrator

"In affirming its denial of class certification, the court recognized that ERISA Section 502(a)(3) does not address which parties may be sued under the statute and 'admits of no limits . . . on the universe of possible defendants.' However, the court recognized that there are limits on a plaintiff's ability to bring a Section 502(a)(3) claim against a nonfiduciary.... The court ultimately found that the appropriate equitable relief requirement doomed the plaintiff's class claims against the third-party administrator." [Duggan v. Towne Properties Group Health Plan, No. 15-623 (S.D. Ohio, Mar. 31, 2019)]
Baker Hostetler, via Lexology; free registration required

Surprise! A QDRO Can Apply to a Welfare Benefit Plan

"When the plan administrator receives a QDRO for a pension plan, does it have an affirmative duty to ask whether the divorce decree has any provisions regarding life insurance beneficiary designations? If the plan administrator receives a divorce decree with a provision regarding a life insurance beneficiary designation, does it have an affirmative obligation to determine whether the domestic relations order is 'qualified' and, if not, advise the parties so it can be corrected? Does the plan administrator need to revise its QDRO procedures to apply to welfare benefit plans as well as pension plans?"
Dickinson Wright

Selected Discussions
on the BenefitsLink Message Boards

Form 5500 Schedule A, Part III -- What's the Meaning of Experience-Rated?

I am having difficulty interpreting part III. What is a lay person's understanding of the difference between part 9 experience rated and part 10 non-experience rated? Are experience-rated fully insured while non-experience rated self insured?
BenefitsLink Message Boards

Press Releases

Most Popular Items in the Previous Issue

DOL Annual Report to Congress on Self-Insured Group Health Plans (PDF)
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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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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