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Health & Welfare Plans Newsletter

September 13, 2019



Sr. Benefit Plans Specialist

Wespath Benefits and Investments
Glenview IL

Account Manager / Client Service - 401k Plans

ABG Retirement Plan Services
Peoria IL / Telecommute

Retirement Sales Consultant

Alerus Financial
Minneapolis MN

Retirement Account Administrator, Sr

Alerus Financial
Albert Lea MN / Arden Hills MN / Bedford NH / East Lansing MI / Troy MI

RPS Compliance Consultant

Dubuque Bank & Trust
Dubuque IA

General Attorney - EXC

Pension Benefit Guaranty Corporation
Washington DC / Telecommute

Vice President, Sales Consultant

Chesterfield MO

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[Guidance Overview]

DOL Reiterates Employers May Not Delay FMLA Leave

"Once the employer learns an eligible employee's requested leave is protected by the FMLA, the employer must designate it as FMLA leave even if the employee requests that designation be delayed pursuant to the CBA. Neither the employer nor the employee can decline FMLA leave. Employers may allow or require employees to substitute paid leave for unpaid leave ... taking the paid leave and FMLA concurrently."

Michael Best

[Guidance Overview]

OIG Approves Per-Click Fee Arrangement for Online Healthcare Directory

"OIG approved a technology company's proposal to make its online healthcare directory search results visible to federal healthcare beneficiaries in locations where the company charges the healthcare professionals a per-click or per-booking fee to be included in the directory.... [OIC Advisory Opinion 19-04] provides valuable insight regarding how OIG evaluates the fraud and abuse risks posed by online scheduling tools, as well as demonstrates OIG's recognition of the increasing importance of technology in the delivery of healthcare."

Health Law Advisor, Epstein Becker Green

[Guidance Overview]

DOL Doubles-Down: Employees Cannot Decline FMLA Leave, Even if a Collective Bargaining Agreement States Otherwise

"[T]he DOL's earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows the employee to use paid leave first and then use FMLA leave at a later time only after paid leave is exhausted. In a September 10, 2019 opinion letter, the DOL seemingly cleared up this issue. Echoing its earlier opinion letter, the DOL declared that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement."

FMLA Insights

Fifth Circuit Opinion: State Statute Requiring Plan to Honor Assignments Is Preempted by ERISA (PDF)

"The anti-assignment clause at issue here articulates that the assignment of legal rights is prohibited in no less than five different ways ... An average plan participant would understand that language to mean exactly what is says ... [A] state statute requiring plan administrators to honor assignments made to third-party healthcare providers would necessarily 'relate to' the administration of those plans.... [We] hold that that [the Tennessee statute] is preempted by ERISA, and that the district court erred in reaching a determination to the contrary." [Dialysis Newco Inc. v. Community Health Systems Group Plan, No. 18-40863 (5th Cir. Sept. 11, 2019)]

U.S. Court of Appeals for the Fifth Circuit

Employer Must Designate Paid Family Leave Under Labor Contract as FMLA Leave

"Although an employee is entitled to take paid family and medical leave under a collective bargaining agreement, the employer still must designate unpaid [FMLA] protected time off as such, even if the employee prefers to use the paid time off first."

Society for Human Resource Management [SHRM]; membership may be required to view article

Survey on ACA Risk Adjustment

"[M]ost members interviewed agreed that: [1] the program was working well ... [2] changes in [risk adjustment (RA)] methodology over time have improved the program; and [3] some aspects of the RA program could still be improved, including changes to promote operational efficiency, greater transparency, earlier access to interim data, and targeted policy changes."

America's Health Insurance Plans [AHIP]

Corporate Wellness Trends You Need to Know About

"The more you can customize products and services to people's goals, habits and desires when it comes to wellness, the more success you'll see! ... Virtual sessions and virtual wellness programs are a highly attractive option to the busy employee. ... [O]rganizations must take a holistic approach to their employee's health."


Denver Healthcare Providers Have Market Power, But Market Is at Tipping Point as Employers Act

"[R]ecommendations that purchasers can use to advance payment reform in Denver: ... [1] Implement benefit designs to encourage consumers seek higher value care.... [2] Implement value-oriented programs such as two-sided risk arrangements that hold providers accountable to quality and cost targets. [3] Expand on earlier success in enhancing transparency on health care quality and prices. [4] Promote the benchmarking of prices relative to Medicare as a means for allowing employers to determine whether the health care prices they are paying are reasonable."

Catalyst for Payment Reform


Balance Billing: Something Has to Give

"Providers have learned that the best way to collect may very well be to sue the health plan.... These suits have begun to clog the courts and have created unexpected liability for employers. Savvy employers have been adding anti-assignment provisions to their plan documents to prevent these actions.... And with these provisions, the balance billing collections are falling back to the patients."

Frenkel Benefits


Do 50 Million People Really Lose Health Coverage Each Year Because of Their Jobs?

"[Sen. Bernie Sanders] appears to suggest that one-third of those with private insurance are uninsured for at least a short time every year because of a change to their employment benefits. In actuality, the CDC data shows that about 24.4% of adults under age 65 in 2014 had experienced at least a gap in insurance coverage in the previous year. The question did not ask respondents to specify the cause."

Kaiser Health News

Benefits in General

Ninth Circuit Reverses District Court, Sends Fiduciary Dispute to Arbitration

"The Ninth Circuit's opinion notably eschewed the anti-arbitration effusions of the court below and instead concentrated on the question of what party's consent was needed to create an enforceable arbitration agreement. The obvious lesson is that arbitration clauses are most effective when included in the terms of the plan rather than left to individual participants' employment agreements." [Dorman v. The Charles Schwab Corp., No. 18-15281 (9th Cir. Aug. 20, 2019; also unpub. memo. opinion)]

Steptoe & Johnson LLP

Household Spending on Personal Insurance and Pensions Increased the Most from 2017 to 2018

"Average expenditures per consumer unit for 2018 were $61,224, a 1.9-percent increase from 2017 levels. During the same period, the Consumer Price Index (CPI-U) rose 2.4 percent, and average pretax incomes increased by 6.9 percent. From 2017 to 2018, a 7.8-percent increase in personal insurance and pensions expenditures was the largest percentage increase among all major components. This compared with a decrease of 0.9 percent from 2016 to 2017."

U.S. Bureau of Labor Statistics [BLS]

Press Releases

SOA Announces Election Results
Society of Actuaries

Most Popular Items in the Previous Issue, Inc.
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David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager

BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2019, 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, 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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