Health & Welfare Plans Newsletter

August 4, 2020

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Tap to Pay for Transit
August 20, 2020 WEBCAST
ECFC [Employers Council on Flexible Compensation]

Curbing FMLA Abuse: What the Law Can Teach Us
August 25, 2020 WEBCAST
Worldwide Employee Benefits Network [WEB] - Dallas Chapter

The New World of Mental and Behavioral Health
August 26, 2020 WEBCAST
ISCEBS {International Society of Certified Employee Benefit Specialists]

Flexible Compensation: Not Just for Healthcare Anymore - How TPAs Can Help Mitigate Financial Worries During Times of Crisis
August 27, 2020 WEBCAST
ECFC [Employers Council on Flexible Compensation]

FMLA
September 9, 2020 WEBCAST
Miller Johnson

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[Official Guidance]

Text of CMS FAQs: Validity of Telehealth and Telephone Services for Risk Adjustment Program During COVID-19 (PDF)

Updated Aug. 3, 2020. "Any service provided through telehealth that is reimbursable under applicable state law and otherwise meets applicable risk adjustment data submission standards may be submitted to issuers' External Data Gathering Environment (EDGE) servers for purposes of the [HHS]-operated risk adjustment program.... HHS has given additional consideration to the treatment of telephone-only services in the HHS-operated risk adjustment program and is announcing additional codes that will be valid for 2020 benefit year data submissions[.]"

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

[Official Guidance]

Text of CMS Temporary Policy on 2020 Premium Credits Associated with the COVID-19 Public Health Emergency (PDF)

"CMS is providing this additional flexibility to allow health insurance issuers in the individual and small group markets to temporarily offer premium credits for 2020 coverage to support continuity of coverage for individuals, families and small employers who may struggle to pay premiums because of illness or loss of incomes or revenue resulting from the COVID-19 public health emergency.... Issuers wishing to provide premium credits for 2020 coverage must, in advance of providing these credits, receive the applicable regulator's permission to provide premium credits as outlined in this bulletin, or CMS's permission in states where CMS is the primary enforcer of the applicable federal requirements.... In their requests to provide these credits, issuers must indicate the fixed percentage by which they intend to provide credits against 2020 premium amounts and the month(s) in 2020 to which the credits would apply."

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

[Guidance Overview]

Editor's PickWhen Can an Employer Have Mistaken HSA Contributions Returned by the HSA Custodian?

"Although the general rule is that all employer HSA contributions are nonforfeitable, there are three situations that permit employers to correct an error by requesting the HSA custodian return mistaken contributions.... [1] Employee was never HSA-eligible ... [2] Employer contributions exceed statutory limit ... [3] Clear documentary evidence of an administrative or process error."

ABD Insurance & Financial Services

[Guidance Overview]

HHS's Final Rule Under ACA Section 1557 Brings Challenges

"The 2020 Rule also eliminates the requirement that covered entities send nondiscrimination notices and 'tagline' translation notices in at least 15 languages with all 'significant communications.'.... Covered entities are still required to take reasonable steps to ensure meaningful access [limited English proficiency] individuals."

Vorys

[Guidance Overview]

Everything You Need to Know About New York's Forthcoming Statewide Paid Sick Leave Law

"How much paid sick leave will employees receive? ... What are permissible uses of NYPSL? ... How does NYPSL accrue? ... Does NYPSL have any recordkeeping requirements? ... When can employees start using NYPSL? ... Does accrued but unused NYPSL carry over from year-to-year and is it paid out upon termination? ... Are employers required to restore employees to their same position upon conclusion of NYPSL? ... What is the interplay between NYPSL, company policy, and New York City and Westchester paid sick leave? ... What steps should employers take in light of this new law?"

ReedSmith

[Guidance Overview]

DOL Releases New FMLA Optional-Use Forms and Requests Public Input to Facilitate Potential Changes to FMLA Regs

"[W]hile the DOL revised the notice and certification forms, it did not revise the mandatory FMLA notice poster. In addition, the revised forms do not apply to leave provided under the [FFCRA].... The DOL also published a request for information (RFI) asking employers and employees for comments on what each would like to see changed in the regulations to better effectuate the rights and obligations under the FMLA."

Duane Morris LLP

[Guidance Overview]

Administration Proposes to Expand Telehealth Benefits Permanently for Medicare Beneficiaries

"[CMS] is proposing changes to expand telehealth permanently, consistent with the Executive Order on Improving Rural and Telehealth Access that President Trump signed [August 3]. The Executive Order and proposed rule advance our efforts to improve access and convenience of care for Medicare beneficiaries, particularly those living in rural areas."

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

Editor's PickFederal Court Vacates Four Key Aspects of DOL Proposed Regs for Paid Sick and Extended Leave Benefits Under FFCRA

"[1] The Court struck down the Final Rule's 'work availability' requirement. What this means for employers: employees may be eligible for FFCRA-paid leave even if there is no work for them to do.... [2] The Court struck down the Final Rule's definition of 'health care provider.' What this means for employers: employers may not have the option of denying FFCRA paid leave to a broad range of employees who work in the health care field.... [3] The Court partially struck down the Final Rule's intermittent leave provisions. What this means for employers: employers cannot require an employee to secure consent for intermittent leave.... [4] The Court struck down the requirement that employees provide documentation before taking leave. What this means for employers: employers cannot condition leave on advanced documentation." [New York v. U.S. Dept. of Labor, No. 20-3020 (S.D.N.Y. Aug. 3, 2020)]

Foley & Lardner LLP

Editor's PickNew York Federal Judge Vacates Parts of DOL FFCRA Final Regs

"[T]he court determined that the DOL's interpretation of certain ambiguous language in the FFCRA's qualifying absences, namely the prerequisite 'unable to work (or telework) due to a need for leave because' was not reasonable under Chevron.... [T]he intermittent leave provisions in the regulations were not fully shielded from the August 3 decision ... The court vacated the part of the regulation's documentation provision stating that employees must provide the required documentation before their PST or EFML absence, finding that this requirement is inconsistent with the timing set forth in FFCRA notice provisions.... The August 3 decision took issue with the regulations' definition of 'health care provider' as compared to that under the FFCRA,8 specifically by deeming the former overbroad as compared to the original statute." [New York v. U.S. Dept. of Labor, No. 20-3020 (S.D.N.Y. Aug. 3, 2020)]

Seyfarth Shaw LLP

Editor's Pick Federal Court Strikes Down Parts of DOL Regs on COVID-19-Related Paid Leave

"While the DOL will likely appeal the decision and it may be overturned in whole or in part, employers who receive leave requests should keep in mind that these parts of the DOL regulations have now been found by one court to be invalid. Perhaps most importantly, health care providers should consider the impact of the decision before excluding certain employees from the benefits of paid FFCRA leave." [New York v. U.S. Dept. of Labor, No. 20-3020 (S.D.N.Y. Aug. 3, 2020)]

Jackson Walker

Tech Companies Are Offering Parents Additional Benefits as COVID-19 Threatens Schools' Return

"Instead of ping-pong tables or free-flowing alcohol, tech companies are now offering help with parenting, which could be particularly useful as many children begin the school year from home as coronavirus cases continue to rise. Some of the biggest tech companies are offering additional paid time off, are paying for backup child care, or both."

MarketWatch

One in Four Companies Changed Employee Health Benefits Since the COVID-19 Pandemic -- Will Working Americans Notice?

"[O]ne-in-four (27%) organizations have changed employee health benefits since the COVID-19 pandemic began in March. Given these changes and the amplified importance of maintaining physical, mental and financial health, this year's annual enrollment marks a critical moment when employees need to spend time understanding and evaluating their options. Yet, 79% of employees don't anticipate spending extra time evaluating benefits this year compared to what they have done in the past."

Fidelity

Editor's Pick Reference Guide: 2021 Guidelines and Thresholds Under the ACA (PDF)

"Eligibility for subsidies in the Marketplace is determined in part by using specific percentages and thresholds that are indexed and change each enrollment year.... This reference guide lists all the indexed guidelines and thresholds that change each enrollment year."

Center on Budget and Policy Priorities

California, House File Reply Briefs in ACA Challenge

"The briefs from California and the House reiterate the same arguments made in earlier briefs and the lower courts. They argue that [1] the individual plaintiffs and the Texas-led states do not have standing to sue; [2] the individual mandate, with a $0 penalty, remains constitutional; and [3] the mandate, even if unconstitutional, is severable from the rest of the ACA." [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

Katie Keith, in Health Affairs

Benefits in General

Tenth Circuit Decision Puts New Emphasis on Including Discretionary Authority Language in Summary Plan Descriptions

"[It] is now Tenth Circuit law that, in order to obtain deferential review, a plan administrator must either [1] furnish participants its plan documents -- even if the participant has not requested them -- or [2] ensure that its summary plan description explicitly states that the plan administrator (or relevant fiduciary) has discretionary authority to determine benefits eligibility and construe the plan's terms." [Lyn M. v. Premera Blue Cross, No. 18-4098 (10th Cir. Jul. 24, 2020)]

Mayer Brown

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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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