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June 25, 2020 logo logo
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View COVID-19 News and Resources

[Guidance Overview]

Plans Not Required to Cover COVID-19 Tests in All Situations

"Group health plans (and insurers) are not required to cover tests for employment purposes or public health surveillance.... Only COVID-19 tests that meet federal standards must be covered at no cost by group health plans and insurers.... Group health plans must cover COVID-19 tests intended for at-home testing when the test is one that meets government standards and is ordered by an attending healthcare provider who has determined that the test is medically appropriate."


[Guidance Overview]

ACA Section 1557 Rule Changes and Bostock

"The Supreme Court's decision in Bostock did not automatically invalidate the new HHS regulations. Still, the Supreme Court dealt a significant blow to HHS's legal analysis in support of the rule changes. HHS cited to the government's position before the Supreme Court in Bostock seven times to support its interpretation of federal civil rights laws to only prohibit discrimination on the basis of biological sex at birth, which the Court squarely rejected. Legal challenges to HHS's rulemaking are already being filed." [Bostock v. Clayton County, Ga., No. 17-1618 (S. Ct. June 15, 2020)]

The Wagner Law Group

[Guidance Overview]

IRS Guidance on Employer-Based Leave Donation Programs for COVID-19 Relief Organizations

"If the employer's leave policy has a 'use it or lose it' provision, there may be an increased cost to the employer if employees who would otherwise lose accrued leave due to non-use instead elect to convert the unused leave time into an employer charitable donation under the program. There may be additional state leave laws that influence when and how leave may be donated in states where the employer conducts business."

Faegre Drinker

[Guidance Overview]

Massachusetts Announces Individual Mandate Figures for 2021

"The applicable maximum deductibles for 2021 are: Individual coverage deductible: $2,700; Individual coverage separate prescription deductible: $330; Family coverage deductible: $5,400; Family coverage separate prescription deductible: $660."

The Wagner Law Group

Administration Wins District Court Ruling on Health Care Price Disclosure

"[HHS] Secretary Alex Azar called the decision ... 'a resounding victory' for ... efforts to open up the convoluted world of health care pricing so patients and families can make better-informed decisions about their care.... But the American Hospital Association ... announced it would appeal. [The industry] argues that forcing the disclosure of prices negotiated between hospitals and insurers amounts to coercion." [American Hospital Ass'n v. Azar, No. 19-3619 (D.D.C. Jun. 23, 2020)]

House Democrats Introduce New Healthcare Coverage Bill

"[The bill] would expand the availability of ACA subsidies to additional income brackets, make premium tax credits (PTCs) more generous, eliminate the 'family glitch,' fund outreach and navigators, fund state-based reinsurance or subsidy programs, fund state efforts to set up their own marketplaces, and rescind Trump-era guidance on state waivers under Section 1332. Most of these priorities have been included in prior ACA legislation or considered as stand-alone bills in the House and Senate."

Katie Keith, in Health Affairs

Buyer Beware: Tax Complications Can Thwart Vacation Buyback Programs

"PTO buyback and cash-out programs can trigger constructive receipt for employees who do not elect cash.... Programs that allow employees to carry forward unlimited accrued PTO could, under certain facts, be considered a nonqualified deferred compensation plan that is subject to Internal Revenue Code section 409A ... Employers should ensure these programs are structured to achieve business needs without causing unintended tax consequences for employees."

Eversheds Sutherland

Georgia Governor Expected to Sign Bill Curbing Surprise Medical Bills

"On June 17, 2020, the Georgia General Assembly passed legislation that is designed to curb unexpectedly high medical bills. Governor Brian Kemp is expected to sign the legislation, House Bill 888, into law. The bill requires insurers to cover emergency services regardless of whether the provider is in a patient's insurance network. Medical providers and insurance companies will enter an arbitration process to determine the amount of reimbursement, effectively removing patients from the billing calculus."

Morris, Manning & Martin, LLP

Benefits in General

Editor's Pick Fiduciary Exception to Attorney-Client Privilege for ERISA Plans (PDF)

"This practice note explains the doctrine commonly referred to as the fiduciary exception to the attorney-client privilege.... [It] also explains how the fiduciary exception doctrine has been used to try to obtain communications ordinarily protected by the attorney work product doctrine. The principles outlined in this practice note can help employee benefits counsel and their clients better understand how best to protect the privacy of their communications and how to anticipate when these communications may be open to examination by plan participants."

Proskauer Rose LLP, via Lexis Practice Advisor

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QSEHRA and Medigap Premiums

"Business has a premium-only QSEHRA just covering health insurance premiums (not dental, vision premiums etc.). An employee will be going on Medicare soon. While I know Medicare part B, Medicare Advantage (part C), part D, and Medicare Supplemental premiums may be reimbursed under QSEHRAs, is it fair to cover the supplemental/voluntary medicare premiums like Part D or Medigap premiums for this employee if we only cover primary health insurance premiums for employees with marketplace or other health insurance coverage?"

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