Health & Welfare Plans Newsletter

April 14, 2020

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View Coronavirus (COVID-19) News and Resources
View Coronavirus (COVID-19) Webcasts

[Official Guidance]

Text of CMS Memo: Postponement of 2019 Benefit Year HHS-Operated Risk Adjustment Data Validation (PDF)

"CMS is exercising enforcement discretion to adopt a temporary policy of relaxed enforcement to postpone issuer requirements related to the 2019 benefit year HHS-RADV process. This will result in a delay of the timeline for release of 2019 benefit year HHS-RADV error rates, as well as the publication of 2019 benefit year HHS-RADV results to issuers."

Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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[Guidance Overview]

DOL's Corrections to FFCRA Regs Fix Contradiction on Concurrent Leave

"As revised, the regulation allows employers to require employees to use employer-provided paid time off and paid Emergency Family Medical Leave concurrently, except in certain circumstances. First, the employer may not require concurrent use of employer-provided paid time off if the employee is already using Emergency Paid Sick Leave under the Act and Emergency Family Medical Leave simultaneously.... Second, an employer may only require an employee to use paid time off concurrently if that employer-provided leave could otherwise be used to care for a child."

Hunton & Williams LLP

[Guidance Overview]

Agencies Issue Guidance on CARES Act Reimbursement of Paid Leave for Government Contractors Related to COVID-19

"Section 3610 of the [CARES] Act authorizes agencies to reimburse contractors for the cost of paid leave incurred to keep contractor or subcontractor personnel in a 'ready state' to the extent that the personnel were [1] unable to access a government-approved facility, and [2] unable to telework because their jobs could not be performed remotely.... DOD issued a class deviation ... that provides a framework for contracting officers to authorize payment of paid leave (including sick leave) costs resulting from the COVID-19 crisis.... NASA issued a general FAQ document geared towards helping contractors understand the agency's response to COVID-19.... ODNI released a short memorandum emphasizing its desire for the Intelligence Community to apply Section 3610 'to the greatest extent possible.' "

Wiley Rein LLP

[Guidance Overview]

FAQs Clarify FFCRA and CARES Act Health Plan Requirements

"[A]ll employer group health plans must comply with the FFCRA and CARES Act changes -- including both fully insured and self-funded plans, regardless of whether the group health plan is subject to ERISA  ... [T]he new requirements don't apply to retiree-only plans, nor do they apply to excepted benefits, such as limited-scope dental or vision plans, most medical flexible spending accounts, on-site medical clinics, and most employee assistance plans (EAPs)."

Miller Johnson

[Guidance Overview]

Months After Ordering Plans to Disregard Sub-Regulatory Guidance, Administration Learns to Love the Informal FAQs

"The FAQs confirm that [1] the guidance only applies to 'group health plans' and health insurance issuers, but not to excepted benefits offered through employers.... [2] plans must not only cover the costs of screenings to detect a current COVID-19 infection, but they also must cover blood tests to detect antibodies that would indicate the individual previously had COVID-19.... [3] the plan cannot impose cost-sharing, prior authorizations or medical management requirements on testing or related services."

Seyfarth

[Guidance Overview]

San Francisco and San Jose Expand Paid Sick Leave in Response to COVID-19 Outbreak

"Under the San Francisco ordinance, the emergency leave must be made available to employees in addition to any existing paid sick leave policies (which cannot be modified except to add additional paid leave), while the San Jose ordinance does not apply to employers that provide employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to 80 hours."

ReedSmith

[Guidance Overview]

District of Columbia Expands Sick Leave

"[E]mployers with between 50 and 499 employees that are not healthcare providers must provide two full weeks of paid sick leave ... for employees who need to take leave for any reason for which employees may take leave under the [FFCRA].... Employers can only require certification of the need for leave if the employee uses three or more consecutive working days of paid leave, and cannot require that the certification be provided sooner than one week after the employee returns to work."

Manatt, Phelps & Phillips, LLP

[Guidance Overview]

Los Angeles Adopts Rules to Implement Supplemental Paid Sick Leave Order

"The rules address which paid time off benefits qualify for purposes of the exemption for employers that annually provide at least 160 paid leave hours.... [E]mployees can choose to use [supplemental paid sick leave (SPSL)] 'periodically' until, overall, they use whatever amount of SPSL the order requires employers to provide. The rules do not provide the employer with discretion."

Littler

[Guidance Overview]

Editor's Pick Departments Issue Guidance Under FFCRA and CARES Act Affecting Health Plans

"[T]he FAQs repeat the requirement ... that services relating to COVID-19 diagnostic testing be covered on a first-dollar basis only if the visit results in a test or an order for a test; therefore, it appears that influenza tests, blood tests, and other diagnostic procedures which may be performed to rule out other potential diagnoses can still be subject to regular plan cost-sharing and administration rules if the attending health care provider ultimately determines that a COVID-19 test is not necessary. If a COVID-19 test is ordered by the attending health care provider, it appears that related services must be covered with no cost-sharing even if the patient does not actually get tested."

Winston & Strawn LLP

Updating Health Plans for Coronavirus Changes

"To avoid any unintended liability, employers with fully insured health plans should obtain their issuer's written approval before making any changes in plan eligibility requirements. For self-insured health plans, employers should obtain this prior approval from their stop-loss carriers.... Employers that want to implement [a] special enrollment opportunity should:  Determine whether newly enrolled employees' premiums will be paid on a pre-tax or after-tax basis."

CBIZ

Virtual Care Essential Among Employers, Healthcare Providers in Protecting Health, Well-Being

"As the stark transition to working remotely has grown from 14% among employers before the pandemic to 97% in those surveyed, virtual medical care has grown substantially to provide effective coverage that eliminates risk of potential exposure. In the survey, 86% of employers stated that they are promoting the use of telemedicine, with either a nurse line or virtual visits being offered for medical concerns. Additionally, 58% are increasing access to telebehavioral health, with another 14% planning to do so."

American Journal of Managed Care

Benefits in General

[Guidance Overview]

IRS Extends Filing Deadlines for Employee Benefit Plans

"This relief has very limited applicability.... [A] plan with September 30, 2019, plan year-end [that] originally would have had an April 30, 2020, due date will now have a due date of July 15, 2020. That is the same due date the plan could have requested by filing for an extension using IRS Form 5558. A plan with a May 31, 2020, or June 30, 2020, due date is better off filing for its own extension to August 15, 2020, or September 15, 2020, respectively."

RSM US

[Guidance Overview]

IRS Extends Form 5500 Due Dates for Some Employee Benefit Plans

"IRS Notice 2020-23 postpones, among other relief, the due date for employee benefit plans required to make the Form 5500 series filings due on or after April 1, 2020, and before July 15, 2020. Plans with original due dates or extended due dates falling within this period now have until July 15, 2020, to file their information reports.... The PBGC acknowledged this IRS notice ... but reminded filers there are certain actions listed on the PBGC's Exception List that do not automatically qualify for the relief."

Jackson Lewis P.C.

Press Releases

Most Popular Items in the Previous Issue

Administration Announces Expanded Coverage for Essential Diagnostic Services Amid COVID-19 Public Health Emergency
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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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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