Health & Welfare Plans Newsletter

October 25, 2019

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[Official Guidance]

Text of CMS Final Regs Rescinding the Adoption of the Standard Unique Health Plan Identifier and Other Entity Identifier

"This final rule rescinds the adopted standard unique health plan identifier (HPID) and the implementation specifications and requirements for its use and the other entity identifier (OEID) and implementation specifications for its use. This final rule also removes the definitions for the 'Controlling health plan' (CHP) and 'Subhealth plan' (SHP)."
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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[Guidance Overview]

The Uncertain Status of Prescription Drug Copay Accumulator Programs

"[T]he Departments implied that copay accumulator programs may become mandatory for HSA-compatible high deductible health plans (HDHPs). The FAQ explained that the HHS rule 'could create a conflict' with the rules for HSA-compatible HDHPs. The IRS view may be that, if a HDHP credits the value of a copay coupon to a participant's deductible, the participant has received impermissible non-high deductible health coverage which negates the participant's eligibility to make HSA contributions."
Vorys

[Guidance Overview]

New Jersey Individual Mandate Requires State Filings in March 2020

"Currently, the existing IRS Forms 1094/5-B and 1094/5-C contain the information New Jersey needs to verify enrollment, and therefore, New Jersey is willing to accept those forms. However, New Jersey notes that if the IRS changes the forms, it is possible that the state will develop its own forms.... [As of Oct. 25, 2019,] the IRS has not issued draft Forms 1094/5-B or 1094/5-C for 2019. Given that 2019 is the first year without the ACA's individual mandate, it is possible that the IRS is developing significantly revised forms (and, hence, the delay)."
Proskauer

[Guidance Overview]

New California Law Imposes FSA Notice Requirements

"If the notice applies, employees must be notified in two different forms including email, phone, text, mail or in-person. The law takes effect January 1, 2020 but doesn't further specify when the notices must be provided. Presumably, one of the notices could be provided by distributing the FSA SPD by email, mail or in-person."
Miller Johnson

Ninth Circuit Upholds Injunction Blocking Administration's ACA Contraceptives Rules

"The US Court of Appeals for the Ninth Circuit has affirmed a district court's preliminary injunction blocking implementation of final regulations issued by the Trump administration in November 2018 ... The final regulations included exemptions from the ACA's contraceptives rules for entities and individuals with objections based on sincerely held religious beliefs or moral convictions." [California v. U.S. Dept. of Health & Human Services, No. 19-15072 (9th Cir. Oct. 22, 2019)]
Thomson Reuters Practical Law

Ninth Circuit Blocks Administration's Contraceptive Rules

"The Ninth Circuit ruling follows a similar decision by the Third Circuit in July 2019.... in early October, Little Sisters of the Poor asked the Supreme Court to review the [Third Circuit's] decision ... [and] determine, once and for all, whether the Obama-era accommodations process for the contraceptive mandate violates the Religious Freedom Restoration Act (RFRA).... [It] seems reasonable to expect Little Sisters ... and/or the federal government to similarly appeal the Ninth Circuit's decision to the Supreme Court." [California v. U.S. Dept. of Health & Human Services, No. 19-15072 (9th Cir. Oct. 22, 2019)]
Katie Keith, in Health Affairs

In Challenge to LTD Benefit Termination, Court Looks to Claims Procedure Regulations From Time of Initial Claim

"The plan administrator countered that, although the denial occurred after April 1, 2018, the court should follow an older version of the regulations since the original claim was made earlier. The court agreed, explaining that, after an initial claim is filed, subsequent interactions are claims only when they are new requests for benefits.... [T]he case demonstrates the difficulties inherent in the fact that old regulations continue to apply, depending on when a claim was initiated." [Smith v. Hartford Life and Accident Ins. Co., No. 19-061 (E.D. Ky. Oct. 11, 2019)]
Thomson Reuters / EBIA

Supreme Court to Hear Case on ACA's Risk Corridors

"The insurers contend that Section 1342 created an obligation, which was not repealed by the appropriation riders, and also that the riders could not have repealed the obligation retroactively. The insurers also reassert their argument that the government breached an implied contract under which they would be paid for their losses if they participated in the exchanges. Nine amicus curiae briefs have been filed in support of the insurers ... The resolution of these cases has ramifications well beyond the affected insurers.' [Moda Health Plan v. U.S., Nos. 2017-1994, 2017-1224, 2017-2154, 2017-2395 (Fed. Cir. Nov. 6, 2018; cert. pet. granted Jun. 24, 2019)]
The Commonwealth Fund

Preparing for ICHRA and EBHRA

"These two new HRAs remove many of the integration requirements and allow employers of all sizes to take advantage and be integrated with individual market coverage (ICHRAs) and to offer excepted benefit HRAs (EBHRAs) to employees who are eligible for traditional major medical coverage."
Ameriflex

Persistency in High-Cost Health Care Claims: 'It's Where the Spending Is, Stupid'

"Twenty percent of the population accounted for 84 percent of total health spending ... 27 percent were in the top 10 percent of spending in at least one year, while 73 percent were never in the top 10 percent.... The 5.8 million individuals examined in this study used $38 billion in health care in 2017.... One-third of individuals persistently in the top 10 percent of claimants had diabetes.... Inpatient services accounted for 27 percent of total spending for those in the top 10 percent one or two years[.]"
Employee Benefit Research Institute [EBRI]

Comparison of Proposals to Control Drug Prices

"[T]ables compare HR 3 based on the legislative text advanced by key committees of jurisdiction, and key provisions of related proposals: the Prescription Drug Pricing Reduction Act of 2019 (S 2543), advanced by the Senate Finance Committee in July; and the Advanced Notice of Proposed Rulemaking (ANPRM): Medicare Program, IPI Model for Medicare Part B Drugs, issued by [CMS] last October."
The Commonwealth Fund

Departments Finalize Mental Health Parity Compliance Guidance

"The finalization of the FAQs provides another reminder to plan sponsors that they need to evaluate whether their NQTLs comply with MHPAEA and document the basis for any disparities in how they apply to MH/SUD benefits. They should also ensure that processes are in place to respond in short order to participant or provider disclosure requests."
Buck

How HSAs May Help Women Clear Retirement Savings Obstacles

"Most workplace retirement plans require ongoing employment in order to save, which can mean fewer opportunities for women, who tend to take career breaks more often than men. But with an HSA, women can remain eligible to contribute to an HSA even while they are not working."
Ascensus

[Opinion]

The Health Insurance Tsunami Is Coming -- and It Will End Employer Health Insurance as We Know It

"Employers are sick and tired of being in the health insurance business. Some have started the process of getting out by looking to offer individual products through an HRA.... [The authors] believe that after the election the deduction for health insurance will move away from the employer and to the individual, ending traditional group health insurance forever."
Joe Markland

Selected Discussions
on the BenefitsLink Message Boards

Relationship of Cafeteria Plan to HSA

I must confess, being a qualified plan TPA, I know next to nothing about HSAs or Section 125 plans. My client has inquired about updating its 125 plan document; are these considered two separate plans -- an HSA and a 125?
BenefitsLink Message Boards

Penalty Abatements for Late Filings?

"Are the IRS and DOL entertaining waivers of late filing fees? I was under the impression that after the advent of the late filer program, they didn't want to be bothered with 'my dog ate it' stories. I just heard someone say that they do it regularly. Also do(n't) late filing penalties go back to the original due date if you miss the extension?"
BenefitsLink Message Boards

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Lois Baker, J.D., President  loisbaker@benefitslink.com
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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