Health & Welfare Plans Newsletter

October 24, 2019

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[Official Guidance]

Text of IRS Publication 5258: ACA Information Returns (AIR) Submission Composition and Reference Guide (PDF)

140 pages; updated Nov. 2019. "The purpose of this document is to provide guidance to all types of external transmitters about composing and successfully transmitting compliant submissions to IRS.... This document covers details on composing and submitting Forms 1094/1095-B and Forms 1094/1095-C by transmitters to IRS."
Internal Revenue Service [IRS]

[Guidance Overview]

Massachusetts Paid Family and Medical Leave Update: Private Plan Exemptions and Reminders on Notice Compliance

"Following the receipt of over 500 private plans from employers, the DFML discussed in a recent public forum the wide disparity in the plans for which employers are seeking to receive exemptions. As a result, the DFML has worked to refine its internal review process and standardize the criteria necessary for approval.... The DOI has published a list of approved insurance carriers that can provide a PFML declaration of insurance that complies with DFML standards."
Ogletree Deakins

Best Practices in Administering Benefit Claims: Dealing with Benefit Assignments

"Anti-assignment provisions must be drafted carefully and clearly so they will accurately reflect the plan sponsor's intentions. Some of the issues to consider include: [1] Will the plan prohibit all benefit assignments? [2] Will it prohibit only the assignment of payment of benefits? [3] Will it only prohibit the provider from commencing action in court? [4] Will it require that providers and participants get the plan administrator's consent before the assignment is valid?"
Proskauer

Experience with New York's Arbitration Process for Surprise Out-of-Network Bills

"The biggest concern raised about NY's arbitration process is the state's guidance that arbiters should consider the 80th percentile of billed charges ... when determining the final payment amount. Providers' billed charges, or list prices, are unilaterally set, largely unmoored from market forces, and generally many times higher than in-network negotiated rates or Medicare rates. And telling arbiters to focus on 80th percentile of charges -- that is, an amount higher that what 80% of of physicians charge for a given billing code -- drives this standard still higher."
The Brookings Institution

Substantiation of Health FSA Expenses

"[P]roblems can arise when employees use Health FSA debit cards to pay for expenses.... [A]utomatic substantiation is not available for all expenses or at all places where the debit card can be used.... [A]ll expenses paid for by a debit card must still be substantiated, but since the employee has already used the Health FSA funds, they may be less likely to complete the substantiation process."
HUB International

Small Businesses See Prescription Drug Costs as Main Factor in Health Insurance Affordability

"[O]ne-quarter of small-business owners cited the rising cost of prescription drugs as the biggest challenge when it comes to providing coverage for employees. When small employers were asked about state and federal proposals to control health care costs, policies addressing drug prices received significant support. Small employers prefer market-based solutions to regulatory ones[.]"
The Commonwealth Fund

Price Transparency Is Coming. How Will You Prepare?

"[P]ayers and providers ... can continue to obscure prices from consumers and risk an even heavier government intervention. Or, they can acknowledge that demands for price transparency are not going away and accept a version that provides consumers with fast, simple-to-understand, and accurate estimates for how much their care will cost."
HealthLeaders Media

New $2.15 Million OCR Penalty Shows Risks of HIPAA Violations

"While the HIPAA-covered entity that paid the $2,154,000 civil monetary penalty, JHS, is a Florida-based nonprofit academic medical system, rather than a health plan  ... health insurers and other health care providers and their business associates should construe the JHS civil monetary penalty as evidence of the need to re-verify and remain constantly vigilant about maintaining compliance with HIPAA’s privacy, security and breach notification rules currently and on an ongoing basis."
Solutions Law Press

Telehealth Services Are Increasingly Accessible to Mental Health Professionals Despite Legislative Barriers

"All 50 states and the District of Columbia now provide some level of coverage for telehealth services for their Medicaid members ... [R]adiology and psychiatry were the top two specialties most interested in telemedicine opportunities.... State parity laws remain loose and ineffective ... Twenty percent of U.S. states lack parity laws.... Treatment options are limited."
Epstein Becker Green

Part D Cost for Brand Name Drugs Rising

"In 2020, this threshold - their own spending plus the subsidies - will rise to $6,350, up from $5,100 in this year. Over the next decade, the threshold will nearly double. Previous years' increases were about $150. As the threshold increases, the dollar amount retirees will pay directly out of their own pockets will rise with it."
Squared Away Blog, by the Center for Retirement Research at Boston College

Benefits in General

Choice of Law Provisions in ERISA Plans Will Not Result in Uniformity

"It seems likely that in the next few years the United States Supreme Court will decide whether ERISA plans may include enforceable forum selection clauses. The vast majority of federal district courts and the only two federal appellate courts to address directly the issue have held that forum selection clauses in ERISA plans are enforceable. The [DOL], however, persists in its opposition to such clauses. Indeed, the DOL's arguments have persuaded a few, isolated district courts that they should not enforce forum selection clauses."
Thompson Coburn

Selected Discussions
on the BenefitsLink Message Boards

If One Has a Participant's E-Mail Address, Why Not Just Attach the Document to Be Furnished?

The DOL has published notice of a proposed rulemaking under which fiduciaries of an ERISA-governed retirement plan could furnish some ERISA-required communications under a notice-and-access regime with a notice that the communication is available at a plan-maintained website. Relying on the new regime would require, among other conditions, having an electronic address for the person entitled to the communication to be furnished. If that electronic address is an e-mail address (rather than a smartphone number): Is there a reason why a plan's fiduciary should not attach to the e-mail message a .pdf of the document to be furnished?
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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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