Health & Welfare Plans Newsletter

July 10, 2019

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Jobs

NQ Client Services Manager (Private Label)
Newport Group
in Lake Mary FL / Dallas TX

Enrollment Specialist
Newport Group
in Charlotte NC / Lake Mary FL / Pittsburgh PA

Senior Non-Qualified Consultant
Newport Group
in Chicago IL / Lake Mary FL

Documents Specialist - Amendments and Ancillary
Newport Group
in Folsom CA / Mobile AL / Minneapolis MN / Saint Petersburg FL

Director, Employee Benefits
Department of Budget & Management, Maryland State Government
in Baltimore MD

Economist (Health)
Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services
in Woodlawn MD / Telecommute

ERISA Attorney
Barclay Damon LLP
in Syracuse NY / Albany NY / Buffalo NY / Rochester NY

DC Retirement Plan Consultant
USI Consulting Group
in Glastonbury CT

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[Official Guidance]

Text of DOL Advisory Opinion 2019-01A: Ace Hardware Plan Qualifies as AHP and MEWA (PDF)

"[U]nder the Department's Pathway 1 sub-regulatory guidance, and assuming that the Plan is adopted and operated as described in this letter, [Ace Hardware Corporation, its subsidiaries, and those of its 2,700 retail owners who employ at least one common law employee] would, at least in form, constitute a bona fide employer group or association in relation to the Plan for purposes of ERISA section 3(5), and the Plan would, at least in form, constitute an AHP that is an employee welfare benefit plan for purposes of Title I of ERISA.... It is also the Department's view ... that the Plan would be a MEWA within the meaning of section 3(40) of ERISA."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Audio: Oral Argument in Texas v. Azar Before the Fifth Circuit Court of Appeals (MP3)

Recording of oral argument on July 9, 2019 (one hour and 46 minutes). [Texas v. Azar, No. 19-10011 (5th Cir. oral arg. Jul. 9, 2019)]
U.S. Court of Appeals for the Fifth Circuit

Court of Appeals Seems Skeptical About Constitutionality of ACA Individual Mandate

"A panel of federal appeals court judges on Tuesday sounded likely to uphold a lower-court ruling that a central provision of the [ACA] -- the requirement that most people have health insurance -- is unconstitutional. But it was harder to discern how the court might come down on a much bigger question: whether the rest of the sprawling health law must fall if the insurance mandate does." [Texas v. Azar, No. 19-10011 (5th Cir. oral arg. Jul. 9, 2019)]
The New York Times; subscription may be required

Appellate Judges Appear Receptive to Arguments of ACA Opponents

"Judges Jennifer Walker Elrod and Kurt Engelhardt ... may have signaled a likeliness to agree with at least some of the arguments raised by the Texas-led group of 18 plaintiff states that challenged the law's constitutionality in light of Congress zeroing out the tax penalties tied to the ACA's individual mandate. However, Engelhardt also questioned why the case that will determine the future of the ACA was being litigated in a courtroom, instead of debated and voted on in Congress." [Texas v. Azar, No. 19-10011 (5th Cir. oral arg. Jul. 9, 2019)]
HealthLeaders Media

Wellness Compliance Checklist

"As employers consider implementing a multifaceted, holistic approach to employee wellbeing, it is crucial to remember how compliance obligations may vary for each component of a comprehensive wellbeing program."
OneDigital Health and Benefits

Editor's Pick Drug Price Disclosures and the First Amendment

"On July 8, 2019, the U.S. District Court for the District of Columbia held that [HHS] exceeded its statutory authority in promulgating its new rule on drug list price disclosures.... The court ultimately vacated the rule.... [but] did not evaluate whether the rule violated the First Amendment.... This Sidebar investigates [that] question[.]"
Congressional Research Service [CRS]

How to Get a Cheaper Prescription Before Leaving the Doctor's Office

"[A] growing number of health systems and insurers [provide] real-time drug pricing information to physicians so they can help patients avoid 'sticker shock' at the pharmacy. The pricing tool, which is embedded in physicians' electronic health record and prescribing system, shows how much patients will pay out-of-pocket based on their insurance and the pharmacy. It allows the doctor to find a cheaper alternative when possible and start the process of getting authorization for a drug, if the insurer requires that."
Kaiser Health News

With ACA's Future In Peril, California Reins In Rising Health Insurance Premiums for Individually-Owned Policies

"Premiums on California's health insurance exchange will rise by an average of 0.8% next year, the lowest increase in the agency's history ... Next year, California will be the first state in the country to offer state-funded tax credits to middle-class enrollees, which will be paid for in part by a new tax penalty on Californians who don't have health insurance."
Kaiser Health News

Massachusetts Court Rules on Liquidated Damages Under the FMLA

"[This case] reminds employers to ensure that they avoid decisions that are 'honest but unconsciously biased' where, as here, the employer mistakenly believed an employee on FMLA leave could not legitimately take a vacation. Only by satisfying both the good faith and reasonableness requirements -- which in this case mandated knowledge of the law surrounding employee use of vacations while on FMLA leaves -- could this employer have avoided liquidated damages." [DaPrato v. Mass. Water Resources Authority, No. 12651 (Mass. Sup. Ct. Jun. 5, 2019)]
Ogletree Deakins

SCOTUS Refuses to Review Ninth Circuit Ruling Blocking Administration's Attempt to Modify ACA Contraceptive Mandate

"The US Supreme Court declined to review a recent Ninth Circuit decision, blocking the interim rules that exempted employers with religious or moral objections from providing birth control coverage required by the [ACA]. Until such time as this issue is clarified, it is prudent for employers with employees in certain states to comply with the ACA mandate and to cover contraceptives under their health plans." [Little Sisters of the Poor v. California, Nos. 18-15144, 18-15166, 18-15255 (9th Cir. Dec. 13, 2018; cert. denied Jun. 17, 2019)]
McDermott Will & Emery

[Opinion]

Resolving Surprise Medical Bills: Legislation Welcome But Issues Remain

"[P]olicy makers should be concerned about any solution ... in which a provider's inflated charges factor into the price that is paid. An arbitration approach leaves the charges mechanism largely in place as a starting point for the arbitration.... The proposed legislation might move the financial burden from the individual patient to the insurer, but it also increases the leverage of the providers in the negotiating process, thereby increasing the medical costs for the health plan and the premiums for all health plan members."
Health Affairs

Benefits in General

[Official Guidance]

Text of AICPA SAS No. 136: Forming an Opinion and Reporting on Financial Statements of Employee Benefit Plans Subject to ERISA (PDF)

110 pages, Jul. 9, 2019. "This Statement on Auditing Standards (SAS) addresses the auditor's responsibility to form an opinion on the financial statements of employee benefit plans (EBPs) subject to [ERISA].... It also addresses the form and content of the auditor's report issued as a result of an audit of ERISA plan financial statements. This SAS applies to audits of single employer, multiple employer, and multiemployer plans subject to ERISA.... This SAS is effective for audits of ERISA plan financial statements for periods ending on or after December 15, 2020. Early implementation is not permitted."
American Institute of Certified Public Accountants [AICPA]

[Official Guidance]

Text of AICPA SAS No. 137: The Auditor's Responsibilities Relating to Other Information Included in Annual Reports (PDF)

100 pages; Jul. 9, 2019. "This SAS requires the auditor to read and consider the other information because other information that is materially inconsistent with the financial statements or the auditor's knowledge obtained in the audit may indicate that a material misstatement of the financial statements or that a material misstatement of the other information exists, either of which may undermine the credibility of the financial statements and the auditor's report thereon."
American Institute of Certified Public Accountants [AICPA]

Press Releases

Most Popular Items in the Previous Issue

Non-Federal Governmental Plans and MHPAEA (PDF)
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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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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