Health & Welfare Plans Newsletter

January 28, 2020

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[Guidance Overview]

Uncertainty Remains for Texas Paid Sick Leave Ordinances

"Over the past two years, city councils in three of the four largest cities in Texas -- Austin, San Antonio, and Dallas -- each have passed ordinances requiring local employers to provide their employees with paid sick leave. In each instance, the new proposed ordinance was met with fierce resistance from local businesses, staffing agencies and professional associations. ... The ordinances in all three cities are similar and contain some of the same key features but each also has its own distinguishing characteristics[.]"

LaborSphere, a blog by Drinker Biddle

[Sponsored]

Now is the time to become a member of ECFC

Sponsored by ECFC [Employers Council on Flexible Compensation]

ECFC is dedicated to maintaining and expanding employee benefit programs on a tax-advantaged basis. Members include employers, TPAs, health plan providers, brokers, payers, providers, payment networks, processors, and financial institutions. Learn more


[Guidance Overview]

Fertility and Surrogacy Benefits: Tax and Legal Implications (PDF)

"IRS Pub. 502 ... clearly stated that taxpayers can deduct the costs of 'fertility treatments,' such as IVF, to 'overcome an inability to have children.' ... Surrogacy costs further complicate the tax analysis ... New York, Louisiana, and Michigan currently prohibit by statute [commercial gestational surrogacy], but the remaining states either have laws that explicitly make commercial surrogacy contracts legal or have no laws at all[.]"

Epstein Becker Green, via Bloomberg Tax Management Memorandum

No-Fault Attendance Policy Creates 'Fault' for Employer Under FMLA

"[An] employer's policy violates the FMLA if it treats FMLA leave differently than vacation, bereavement leave, and other types of absences considered 'worked' for purposes of receiving credit for perfect attendance.... Relying on the [DOL's] guidance, the [Sixth Circuit recently] held that the employer's no-fault attendance policy was problematic because it impermissibly treated FMLA leave differently than other types of leave, such as military leave and union leave." [Dyer v. Ventra Sandusky, No. 18-3802 (6th Cir. Aug. 8, 2019)]

Foley & Lardner LLP

Recent Decisions Address Mental Health Coverage in the ERISA Context

"[Four] recent decisions illustrate legal issues that courts are confronting as they continue to address mental health coverage litigation in the ERISA context. They add to a growing body of law addressing the interaction between ERISA, MHPAEA and state mental health parity statutes, as well as the proper level of scrutiny to apply under deferential standards of review."

Manatt, Phelps & Phillips, LLP

Development and Validity of a Workplace Health Promotion Best Practices Assessment

"The condensed version of the HERO Scorecard has the potential to be a promising tool for future research on the extent to which employers are adopting best practices in their health and well-being initiatives."

Journal of Occupational and Environmental Medicine

Americans Now More Likely to Have Unmet Health Needs Than Twenty Years Ago

"[D]espite an increase in insurance coverage from the [ACA], the percentage of people who are unable to afford to see a doctor when needed has risen.... The largest relative increases in unmet health needs occurred among people who had had insurance, suggesting that deterioration in quality of private health insurance, not lack of insurance, caused most of the increase in unmet health needs over the last 20 years."

Physicians for a National Health Program [PNHP]

Class Action Enforcement and Implementation of the 2008 Parity Act

"The Court ruled that United's overriding profit motive infected its development of parity for its standards and processes for both its medical necessity guidelines and its coverage determination guidelines prepared by United in 2011.... [A] subsequent class action was filed by behavioral health and substance abuse treatment providers against United asking the Court to order United to re-adjudicate all previously denied or reduced claims for behavioral health and substance abuse treatment services for the period of May 22, 2011 through January 31, 2019 for all provider Class members. The estimated denied and underpaid claims is in the tens of billions of dollars." [Wit v. United Behavioral Health, Nos. 14-2346, 14-5337 (N.D. Cal. Mar. 5, 2019)]

Dickinson Wright, via Lexology; free registration required

Estimate of Payroll Tax Needed to Finance Benefits Under Proposed 'Family and Medical Insurance Leave Act' (PDF)

"[HR 1185] would establish a new trust fund for financing benefits specified. For workers who are eligible, specified benefits based on 'qualified caregiving' would start in March 2022.... The Bill specifies a total payroll tax rate of 0.40 percent on OASDI taxable earnings, starting in January 2021. However, we estimate that a 0.62 percent payroll tax rate would be necessary to adequately finance benefits included under this Bill, under the intermediate assumptions of the 2019 Trustees Report."

Office of the Chief Actuary, U.S. Social Security Administration [SSA]

[Opinion]

Cost and Enrollment Estimates for Leading Democratic Candidates' Health Plans

"For each plan, [the authors] score the fiscal impact of coverage and other spending provisions, reductions in current and proposed health care costs, direct offsets proposed as part of their plans to expand coverage, and further offsets meant to finance remaining costs. [They] focus on federal fiscal impact rather than the effect on total national health expenditures."

Committee for a Responsible Federal Budget

[Opinion]

Testimony at House Ways and Means Committee Hearing on Legislative Proposals for Paid Family and Medical Leave (PDF)

"[We] are here to consider the FAMILY Act, proposed legislation that would impose a payroll tax on all workers to fund benefits for those who qualify.... [T]he FAMILY Act [1] has the potential to exacerbate inequalities ... [2] would tax everyone equally regardless of risk (or propensity for use).... [3] would backfire on workers, particularly women, by reducing the incentive for employers to provide paid family and medical leave benefits and increasing the incentive for workplace discrimination.... [4] will burden workers with a new tax and reduce overall economic opportunity."

Independent Women's Forum

Benefits in General

[Official Guidance]

Text of EBSA Notice of Participant Assistance Program Customer Survey

"This survey will collect customer satisfaction data for a sample of private citizens who call into the participant assistance program to ask about their private sector employer-provided benefits such as pensions, retirement savings, and health benefits. Three types of callers will be queried: [1] Those who need benefit claim assistance; [2] Those who have a valid benefit claim; and [3] Those who have an invalid benefit claim. The results of the survey will be analyzed to provide actionable data that could be used to improve program performance."

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Selected Discussions
on the BenefitsLink Message Boards

Schedule A for Welfare Benefit Plan?

"I have it in my mind that a Schedule A is not required to be attached to a 5500 for a service provider of a welfare benefit plan where the service provider did not pay any fees or commissions to an insurance agent. Correct?"

BenefitsLink Message Boards

Press Releases

Pentegra Announces Three Executive Promotions
Pentegra Retirement Services

Most Popular Items in the Previous Issue

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2020 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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