Health & Welfare Plans Newsletter

June 26, 2020

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View COVID-19 News and Resources

[Guidance Overview]

DOL Addresses Health Plan Coverage for Return-to-Work COVID Testing and Other Issues

"The guidance clarifies that testing conducted to 'screen for general workplace health and safety, for public health surveillance, or for any other purpose not primarily intended for individualized diagnosis or treatment' is not covered under the FFCRA/CARES Act mandate.... The FAQs suggest that plans must provide notice 'within a reasonable timeframe' in advance of any cutback to the cost-free testing at the conclusion of the emergency period unless the plan had originally notified participants of the general duration of the benefits."

Seyfarth Shaw LLP

[Guidance Overview]

Feds Carve Out Workplace COVID-19 Testing from Guaranteed Coverage and More

"The latest guidance offers additional clarity on the scope of testing requirements, surprise bills, and when testing must be covered. The agencies also address non-testing issues such as wellness programs, mental health parity, and individual coverage health reimbursement arrangements (HRAs)."

Katie Keith, in Health Affairs

[Guidance Overview]

DOL Releases Proposed Updates for MHPAEA Compliance Tool

"Additional examples signal [DOL's] increased expectations for plan sponsors.... The examples and suggestions in the proposed tool highlight the [DOL's] expectations that plan sponsors will be performing MHPAEA assessments and carefully monitoring and documenting their parity compliance."

Segal

[Guidance Overview]

What Are the Employer Requirements with Respect to the ACA Exchange Notice?

"The ACA requires employers to provide the Exchange Notice to new hires within 14 days of their start date, but there are no fines or penalties for failure to comply.... There is no requirement to provide another Exchange Notice to employees after they receive the notice upon hire.... Portions of the DOL's model Exchange Notice are very outdated at this point.... [The authors] recommend modifying the model Exchange Notice slightly to update the relevant dates and affordability percentage calculation information."

ABD Insurance & Financial Services

[Guidance Overview]

IRS Proposes Regs on Disallowance of Employer's Deduction for Commuting Benefits

"The proposed regulations still concentrate on the disallowance of employer deductions for parking expenses, but they also address transportation in commuter highway vehicles (vanpooling) and transit benefits, and explain how certain exceptions allow some qualified transportation fringes to be deductible."

Thomson Reuters / EBIA

[Guidance Overview]

Colorado Employers Face Two Rounds of New Paid Sick Leave Mandates

"Colorado now joins the growing number of states requiring most employers to provide paid sick leave -- not only extending COVID-19-related sick leave protections to take effect immediately, but also creating a traditional paid sick leave requirement beginning January 1, 2021."

Fisher Phillips

Editor's Pick Brief of Respondent States to Supreme Court: Entire ACA Should Be Invalidated (PDF)

66 pages. "In the end, petitioners defend the ACA as good policy ... Not only are those policy arguments incorrect, but they miss the point. Policy considerations cannot create Article I power. The ACA contains an unconstitutional command that can no longer be saved as a tax. The ACA itself insists that its other major health-insurance reforms rise and fall with this unconstitutional command. And those reforms were the core of the ACA.... The policy merits of the ACA can neither save section 5000A nor sever what Congress expressly conjoined." [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

State of Texas, 23 Other States

Editor's Pick Brief of Federal Respondents to Supreme Court: Entire ACA Should Be Invalidated (PDF)

82 pages. "The individual mandate no longer can be sustained as a valid exercise of Congress's Article I authority ... The Court upheld the mandate only by adopting a saving construction of 26 U.S.C. 5000A, characterizing the mandate as the predicate to a tax. But Congress has now eliminated the tax, removing the basis for that construction.... The individual mandate cannot be severed from the remainder of the ACA. Congressional findings incorporated into the ACA's text clearly indicate that Congress would not have adopted the guaranteed-issue and community-rating provisions absent the individual mandate's requirement to purchase insurance ... The ACA's remaining provisions are likewise inseverable, because it is evident that Congress would not have enacted them without the individual mandate and the guaranteed-issue and community-rating provisions.' [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

United States of America: U.S. Department of Justice [DOJ], U.S. Department of Health and Human Services [HHS], Internal Revenue Service [IRS]

Emergency Paid Sick Leave: DOL Enforcement Efforts on the Rise

"While actual enforcement was delayed at first, lately the DOL has become quite active in prosecuting cases against businesses. Employers should be aware of these recent developments, and take steps to evaluate their own compliance with their new obligations under federal law."

Littler

Employers Urge Policy Changes as Senate Panel Examines Telehealth Issues

"ERIC and ABC will continue urging lawmakers to designate standalone telehealth and other remote care services as an 'excepted benefit' under current rules so that it can be offered to more employees on a permanent basis. ERIC and ABC also strongly cautioned Congress to reject any mandates relating to telehealth that would impede employers' flexibility to innovate and pursue value-based care."

Mercer

CMS Special Trends Report: Enrollment Data and Coverage Options for Consumers During the COVID-19 Public Health Emergency (PDF)

"The number of consumers gaining coverage in states with Exchanges using the HealthCare.gov platform through the [loss of minimum essential coverage special enrollment period (MEC SEP)] is higher for the 2020 coverage year than for any of the prior coverage years in this report with approximately 487,000 consumers gaining coverage through the loss of MEC SEP ... By month, the largest gain [MEC SEP] enrollments occurred in April 2020, with enrollments increasing by 139 percent when compared to April 2019. The number of consumers gaining Exchange coverage through the [MEC SEP] dropped by about one-third from April 2020 to May 2020, but continued to be significantly higher -- by 43 percent -- than in May of 2019."

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

Press Releases

Most Popular Items in the Previous Issue

Fiduciary Exception to Attorney-Client Privilege for ERISA Plans (PDF)
Proskauer Rose LLP, via Lexis Practice Advisor

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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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