Health & Welfare Plans Newsletter

March 3, 2020

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[Guidance Overview]

Using Qualified Disaster Relief and Employer-Assisted Charities to Aid Employees Impacted by Natural Disasters and Financial Hardship

"If the natural disaster is a federally declared disaster under Section 139 of the Internal Revenue Code, the employer can make grants to employees from the employer's general assets or from a dedicated fund.... Another option for employers ... is to help create a 501(c)(3) employer-assisted public charity.... Employers can also assist employees through a private foundation, a donor-affiliated fund or by taxable direct grants and reimbursements."

Frost Brown Todd LLC

[Guidance Overview]

HHS Gives New Guidance on Drug Manufacturer Coupons and Out-of-Pocket Maximums

"If the proposed [HHS] rule is finalized, health plans and PBMs would be able to continue to utilize any current practices of excluding drug manufacturer coupons from members' annual cost-sharing amounts in 2021 and beyond.... [S]ome states ... have passed insurance laws that require that the value of drug manufacturer coupons be credited to a member's annual cost-sharing amounts in certain circumstances. While these state laws would not apply to self-funded group health plans, sponsors of fully insured group health plans and insurance carriers should be cognizant of any such restrictions imposed by state law."

Foley & Lardner LLP

New York Insurers Required to Waive Cost-Sharing for Coronavirus Testing

"The New York State Department of Financial Services is requiring New York health insurers to waive cost sharing associated with testing for novel coronavirus, including emergency room, urgent care and office visits.... In addition, the state outlined a series of other actions that New York health insurers are required or advised to take, including keeping New Yorkers informed regarding available benefits, offering -- where possible -- telehealth medical advice and treatment and preparing insurers to cover the costs if a COVID-19 immunization should become available."

Insurance Journal

CDC Advice to U.S. Employers: Be Prepared for Coronavirus

"[E]mployers should plan to be able to respond in a flexible way to varying levels of severity, and be prepared to refine their business response plans as needed. Comparable to response policies you might have in effect for a natural disaster or other crisis, employers and HR managers need to have essential protocols in place to protect employees during an epidemic or pandemic outbreak."

Grooms Benefit Solutions

COBRA Notice Litigation: Cases Are Mushrooming and Settlements Are, Too

"Companies in Florida and, more recently, in New York have seen a flurry of cases over [COBRA] notices.... In these cases, a COBRA notice is provided (typically, by a third-party vendor) to covered persons experiencing a qualifying event, but the litigation is filed against the employer or plan sponsor. While the COBRA notices are not identical to the model notice the DOL has promulgated and omit certain confusing and cumbersome language from the model notice, they still comply with COBRA."

Jackson Lewis P.C.

Supreme Court Takes Up Fifth Circuit Challenge to Affordable Care Act

"The makeup of the Supreme Court has changed since its 2012 decision upholding the ACA, but the five-justice majority in that case is still intact. It remains to be seen whether the Supreme Court truly wishes to revisit (and possibly reverse) its 2012 decision, based on the new elements of the ACA, or whether it simply wants to short-circuit anticipated errors in the district court remand." [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

Seyfarth Shaw LLP

Supreme Court to Hear Challenge to ACA

"Although the Court was silent on the appeal filed by the U.S. House of Representatives, this means the full scope of legal issues in Texas -- from whether the plaintiffs have standing to whether [the] rest of the law can be severed from the individual mandate -- will be considered by the Supreme Court during its next term, which begins in October 2020. The two appeals (from California and Texas) were consolidated, and the Court will schedule one hour of oral argument in the fall, potentially before the November 2020 election. A decision will be issued before the end of the Court's term in late June 2021." [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

Katie Keith, in Health Affairs

Despite Resistance, Surprise Billing Restrictions See Continued Legislative Activity

"[S]tates have taken the lead on protecting patients against surprise bills, as the numerous pending bills before the House on the issue have stalled. Now in 2020, two new state surprise billing laws in Texas and the State of Washington have gone into effect, while Congress is trying anew to make something happen on the federal level."

Sheppard Mullin

Lower-Wage Workers Less Likely Than Other Workers to Have Medical Care Benefits in 2019

"Twenty-four percent of private industry workers in the lowest 10 percent wage category had access to employer-sponsored medical plans in March 2019, while 94 percent of workers with an average wage in the highest 10 percent had access to such plans. As average wages move from the lowest 25 percent of wage earners to the second-lowest 25 percent, access rates rose from 36 percent to 70 percent."

U.S. Bureau of Labor Statistics [BLS]

Union Urges OPM Director to Withdraw Proposal to Limit Paid Parental Leave

"The National Treasury Employees Union ... urged the Trump administration to abandon a legislative proposal that would couple technical fixes to ensure all federal workers can use the newly enacted paid parental leave policy with two new limitations on how feds can use the benefit.... [T]he OPM plan would cap the amount of paid leave at 12 weeks per 'given child,' meaning a set of parents who are both federal workers could only take a combined 12 weeks after they have or adopt a child. And the agency also proposed a vague set of 'limitations' on the use of paid parental leave following the placement of a foster child."

Government Executive

Colorado Continues Its Efforts Towards Paid Family Leave

"[A] new proposed bill ... attempts to create tax incentives to encourage employers to voluntarily support paid parental and medical leave programs. The proposed bill would also encourage employees to save for time away from work during these times, specifically through leave savings accounts for which the employee can contribute up to $5,000 of wages, annually, to pay for leave-related expenses."

Jackson Lewis P.C.

[Opinion]

Pharmacy Groups File Amicus Brief Supporting State Level PBM Regulation

"PBMs increased fees on pharmacies by 45,000 percent simply because they can. They steer patients to their own pharmacies simply because they can. They increase out-of-pocket costs for patients simply because they can. They hold pharmacies hostage to inflexible, one-sided contracts simply because they can. They behave like monopolies simply because they can. It's time to say to the PBMs, "No, you can't," ' said B. Douglas Hoey, NCPA CEO. 'Our brief argues that the states have the obligation and the legal authority under federal law to protect their local businesses and their patients.' " [Rutledge v. Pharmaceutical Care Mgmt. Assoc., Nos. 17-1609 and 17-1629 (8th Cir. June 8, 2018; cert. pet. granted Jan. 13, 2020)]

National Community Pharmacists Association [NCPA]

Press Releases

NCEO Welcomes Milan Havel, Its Newest Staff Member
National Center for Employee Ownership [NCEO]

Upcoming Events About Health & Welfare Plans

Mar. 4
Texas
IRA and HSA Seminar
Ascensus
Mar. 4
District of Columbia
Healthcare Coverage and Costs: Assessing Medicare-Based Approaches
National Academy of Social Insurance [NASI]
Mar. 4
Webcast
Free
All Aboard! It's Time to Comply With the New Jersey Commuter Benefits Law
Ogletree Deakins
Mar. 4
Ohio
What To Do When Culture Sucks
Worldwide Employee Benefits Network [WEB] - Greater Cincinnati Chapter
Mar. 5
Maryland
Integrated Healthcare Delivery, Data Analytics, and Coordinated Care - Reducing the Cost of Care with Kaiser Permanente
Worldwide Employee Benefits Network [WEB] - Baltimore Chapter
Mar. 10
District of Columbia
Free
How to Lower Health Care Costs: Competition, Regulation, and Administrative Expenses
Brookings Institution
Mar. 10
District of Columbia
Affordable Care Act Turns 10
Health Affairs
Mar. 10
Webcast
Free
Litigation Lessons and Minimizing Risks
Trucker Huss

Most Popular Items in the Previous Issue

Annual Report of ABA Subcommittee on the FMLA: 2019 Court Cases (PDF)
American Bar Association Section of Labor and Employment Law, Committee on Federal Labor Standards Legislation, Subcommittee on the Family and Medical Leave Act

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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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