Health & Welfare Plans Newsletter

April 27, 2020

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View Coronavirus (COVID-19) News and Resources

[Official Guidance]

Text of CMS FAQs: 2019 Benefit Year Cost-Sharing Reduction (CSR) Data Submission (PDF)

"Will [CMS] permit issuers to submit CSR data for the 2019 benefit year? ... Where can issuers find more information on how to complete the CSR data submission and restatement processes?"

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

[Guidance Overview]

New Jersey Enacts Permanent Leave Law Expansions in Response to COVID-19

"This newly enacted legislation ... affects New Jersey's Earned Sick Leave Law, Family Leave Act, and Temporary Disability Benefits Law, altering them to increase coverage in public health emergency situations.... [T]hese alterations are permanent and apply to public health situations beyond the COVID-19 crisis."

Mintz

[Guidance Overview]

State of New York Mandates Permanent Paid Sick Leave

"The legislation delineates an employer's responsibility based on number of employees or, in some instances, revenue. [1] Employers with four or fewer employees and a net income of $1 million or less: 40 hours unpaid sick leave. [2] Employers with four or fewer employees and a net income of greater than $1 million: 40 hours paid sick leave. [3] Employers with between five and 99 employees: 40 hours paid sick leave. [4] Employers with 100 or more employees: 56 hours paid sick leave."

Duane Morris LLP

[Guidance Overview]

Editor's Pick State-Mandated or Encouraged Insurance Premium Payment Grace Periods, and the Risks They Pose to ERISA Plan Sponsors

"In response to the coronavirus pandemic, state insurance departments have issued directives prohibiting insurers from canceling certain kinds of policies due to the nonpayment of premiums, requiring the insurer to provide a grace period before canceling, or strongly encouraging carriers not to cancel policies.... From a fiduciary perspective, leading employees to believe they have coverage under a plan with respect to which the employer is not paying the premium for several weeks can create fiduciary breach issues if, in fact, the insurer is merely pending coverage or retroactively terminates coverage when the employer is not able to pay the back premium on time."

Lockton

Supreme Court Opinion: Risk Corridor Payments Must Be Made to Health Plan Insurers (PDF)

43 pages. "[C]ontrary to the Government's view, Section 1342's obligation-creating language does not turn on whether Congress expressly provided 'budget authority' before appropriating funds.... [T]he Government contends that the existence and extent of its obligation here is 'subject to the availability of appropriations.' ... But that language appears nowhere in Section 1342, even though Congress could have expressly limited an obligation to available appropriations or specific dollar amounts. Indeed, Congress did so explicitly in other provisions of the [ACA].... [T]he plain terms of the Risk Corridors provision created an obligation neither contingent on nor limited by the availability of appropriations or other funds.... The next question is whether Congress impliedly repealed the obligation through its appropriations riders. It did not." [Maine Community Health Options v. U.S., No. 18-1023 (S. Ct. Apr. 27, 2020)]

Supreme Court of the United States

U.S. Supreme Court Rules for Insurers Over $12 Billion Obamacare Claims

"The 8-1 ruling authored by liberal Justice Sonia Sotomayor paves the way for a significant one-time cash infusion for major companies such as Humana Inc, Anthem Inc and Centene Corp. The justices reversed a lower court’s ruling that Congress had suspended the government’s obligation to make such payments." [Maine Community Health Options v. U.S., No. 18-1023 (S. Ct. Apr. 27, 2020)]

Reuters

U.S. Health Insurers Reap Benefit as Elective Care Cuts Offset Coronavirus Costs

"As Americans delay elective surgeries and avoid doctors and hospitals during the coronavirus pandemic, healthcare spending declines have more than offset the added costs of COVID-19 care, insurance executives and experts say, boosting U.S. health insurer profits. Those gains, however, could be short term, depending on how quickly the coronavirus outbreak subsides and healthcare business begins to return to something close to normal."

Union Leader

Proposed New York City Essential Workers Bill of Rights Provides Sick Leave for Independent Contractors

"Introductory Bill No. 1926 ... would expand coverage of the New York City Earned Safe and Sick Time Act (ESSTA) to include individuals who previously were not entitled to paid sick leave. If this bill is passed then any person providing labor or services for remuneration within the city of New York for more than 80 hours in a calendar year will be considered an employee, unless the hiring entity demonstrates that [specific] conditions are satisfied[.]"

Littler

More Paid Sick Leave in Massachusetts? Bill Would Add Up to 80 Hours of Emergency Leave

"The Massachusetts legislature is considering expanding the state's generous paid sick leave statute to add up to 80 hours of emergency paid sick leave for use in times of a declared state of emergency or disaster. While inspired by the current COVID-19 pandemic, the bill would make these benefits permanent, and the benefits would be available during any future state of emergency or disaster. If passed, the statute would take effect immediately, include a private right of action, and subject employers to mandatory triple damages -- even for good faith or technical mistakes."

Fisher Phillips

Coronavirus and On-Site Clinics: What Plan Sponsors Need to Know

"In March 2020, Mercer interviewed several large clinic vendors and found that many were making changes to their services, including offering limited services or converting to virtual/telehealth services. The clinics had taken actions such as conducting telephone pre-screenings for flu or cold illnesses, offering 'pop-up' screening sites for pre-screened patients in parking lots or other off-campus sites, and rescheduling -- or transitioning to virtual -- preventive services such as biometric exams, physicals, vaccinations and wellness visits.... For plan sponsors with an on-site clinic, there are new ways the clinic vendor can provide valuable resources during the coronavirus pandemic."

International Foundation of Employee Benefit Plans [IFEBP]

Roundup of Selected State Health Developments, First Quarter 2020 (PDF)

12 pages. "States pushed through insurance guidance to ease the impact on patients, employers and the healthcare system. Many jurisdictions also broadened or established leave programs to meet the immediate needs of employees and their families.... This GRIST summarizes selected state health-related developments and COVID-19 efforts in the first quarter of 2020."

Mercer

Benefits in General

Sixth Circuit Offers Fresh Look at ERISA Exhaustion of Remedies Requirement

"A [recent] concurring opinion ... by U.S. Circuit Judge Amul Thapar of the Sixth Circuit raises provocative questions about the administrative exhaustion doctrine in ERISA cases and suggests that other aspects of ERISA litigation are also ripe for reexamination.... [N]either ERISA Section 503 ... [nor] any other statutory provision in ERISA mandates administrative exhaustion. Nonetheless such a requirement has been created and uniformly enforced by all federal courts." [Wallace v. Oakwood Healthcare, Inc., No. 18-2316 (6th Cir. Mar. 31, 2020)]

DeBofsky Sherman Casciari Reynolds P.C.

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Press Releases

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Description of the Tax Provisions of the CARES Act
Joint Committee on Taxation [JCT], U.S. Congress

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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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