Health & Welfare Plans Newsletter

August 27, 2020

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[Guidance Overview]

Health Plans May Now Use PHI to Inform Certain Participants about Plasma Donation for Battling COVID-19

"[W]hen using PHI to provide participants with information about plasma donation, a health plan must limit its use and disclosure of a participant's PHI to the minimum amount necessary to accomplish the purpose ... A health plan should disclose information about plasma donation directly to participants. It should not disclose a participant's PHI to a donation center so that the donation center can contact participants about plasma donation (unless the participant has authorized this disclosure)." Icon to read more

Miller Johnson

[Guidance Overview]

Temporary Premium Credits: New Rule Clarifies Risk Adjustment and Medical Loss Ratio Standards

"[C]urrent CMS regulations would require insurers to report premium credits as part of their full earned premium for purposes of the 2020 medical loss ratio (MLR) and the risk adjustment program.... As expected, the new interim final rule addresses those areas with the goal of ensuring accurate reporting of premiums, including premium reductions, for 2020." Icon to read more

Katie Keith, in Health Affairs Blog

[Guidance Overview]

Washington's Paid Family and Medical Leave (PDF)

44 presentation slides. Topics: [1] Overview of the Washington PFML program; [2] How the PFML intersects with other leave laws; [3] Supplemental benefits; [4] Amendments, benefits, and tax issues; [5] PFML question and answers. Icon to read more

Davis Wright Tremaine LLP

[Guidance Overview]

Local Ordinance Has Massive Implications: Supplemental Paid Sick Leave Mandate in Sonoma County

"While the FFCRA applies to companies with fewer than 500 employees, the Sonoma Ordinance covers those employees of companies with more than 500 employees either locally or nationally. Further, the Sonoma Ordinance covers employees who work more than two hours in the unincorporated areas of the County, not applying to Santa Rosa employees, which has passed its own ordinance." Icon to read more

Jackson Lewis

[Guidance Overview]

San Francisco Releases 2021 HCSO Expenditure Rates

"Under the HCSO, Covered Employers with 20 or more employees (50 or more employees for nonprofits) in any quarter are required to make a minimum level of health care expenditures for that quarter for employees who: [1] Have been employed by the employer for at least 90 days, [2] Have performed at least 8 hours of work per week in San Francisco, and [3] Do not meet one of the five exemption criteria ... Even though the April 2020 reporting for 2019 HCSO expenditures was cancelled, employers are still required to make the 2020 quarterly expenditures." Icon to read more

ABD Insurance & Financial Services

Are Your Employees at Risk for Communication Fatigue?

"Communication fatigue ... [is] a particular risk for employees during open enrollment. This season entails an uptick in emails, events, paperwork, and even person-to-person conversations.... One way to address this challenge is to focus on providing value, showing thoughtfulness, and displaying creativity.... [Here] are some ideas to get you going." Icon to read more

Tango Health

Workplace Legal Programs for Protesting Employees: ERISA Considerations

"[An] arrangement where the employer is facilitating legal representation for employees could be considered in an ERISA plan. But a referral-only arrangement where the employer has limited involvement would generally not be an ERISA plan.... [T]he more comprehensive the proposed legal benefit and more involved the employer is in its offering, the more beneficial ERISA coverage may be." Icon to read more

Morgan Lewis

Employer May Face Equitable Remedies for Fiduciary Breach Due to Service Provider's Error

"Two key ERISA issues are highlighted here: the possibility of monetary relief for fiduciary breach, and the importance of monitoring service providers. (While an employer held liable for a service provider's gross negligence might seek recovery from the service provider, contract terms could limit the service provider's exposure.) This case also illustrates the importance of fully investigating possible errors as they arise." [Sullivan-Mestecky v. Verizon Communications Inc., No. 18-1591 (2nd Cir. June 1, 2020)] Icon to read more

Thomson Reuters / EBIA

Retired Hollywood Actors Protest Changes to SAG-AFTRA Health Plan

"As a result of pandemic-fueled financial troubles, SAG-AFTRA on August 12 announced significant raises to premiums and minimum earnings requirements that it says are necessary to keep the entire plan afloat.... Members under 65 will ... have to earn $25,950 or work at least 100 days during a 12-month base earnings period to qualify for coverage. But the biggest change for seniors is that they will no longer be able to count residuals -- which many Hollywood retirees rely on as a fixed income -- towards that minimum earnings count." Icon to read more

Portside

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[Opinion]

The Tradeoff Between Employer Premium Contributions and Wages

"[T]he bulk of the research literature indicates that, one way or another, most of the burden of ever-increasing health care costs falls on the shoulders of workers. That burden may come in the form of lower wages, higher premium contributions, or higher out-of-pocket costs. All these impacts are likely to have more severe consequences for low- and moderate-income workers, but rising health care costs affect the economic well-being of all workers with job-based coverage." Icon to read more

UC Berkeley Labor Center

Benefits in General

Ninth Circuit Rejects Request for Attorney's Fees in ERISA Administrative Appeal

"The court noted that the word 'action', as used in ERISA's fee-shifting provisions, 'generally designates only proceedings in court, not administrative proceedings.' The Ninth Circuit also concluded that awarding the plaintiff attorney's fees in the instant case would result in a rule under which the availability of attorney's fees for an administrative appeal would turn on whether the claimant characterized their claim as either a denial-of-benefits claim under ERISA 502(a)(1)(B) or a fiduciary breach claim under 502(a)(3)." [Castillo v. Metropolitan Life Ins. Co., No. 19-56093 (9th Cir. Aug. 17, 2020)] Icon to read more

The Wagner Law Group

Exceptional Usefulness and Quality iconReopening and Rehiring During the COVID-19 Pandemic -- Critical Employee Benefits and Executive Compensation Considerations

Topics include: [1] Ensure eligibility determinations under retirement and health & welfare plans are correctly implemented. [2] Qualified retirement plans: automatic enrollment; loans. [3] Equity incentive plans. [4] Health & welfare plans: rehire after less than 13-week absence; rehire after 13-week absence; furloughed employees; determination of full-time status. [5] New rules for cafeteria plan elections. [6] How to appropriately report furloughed and laid-off workers to IRS on Forms 1094-C and 1095-C. [7] Impact of new COBRA rules for returning workers. [8] Avoiding 409A penalty taxes in connection with an arrangement that includes separation from service provisions. [9] Necessary retirement, health and welfare plan amendments. Icon to read more

Littler

ERISA Advisory Council to Meet September 17

"[T]he 201st open meeting of the [ERISA Advisory Council] will be held via a teleconference on Thursday, September 17, and Friday, September 18, 2020.... The purpose of the open meeting is for Advisory Council members to hear testimony from invited witnesses and to receive an update from [EBSA]. The Advisory Council will study the following topics: [1] Considerations for recognizing and addressing participants with diminished capacity, and [2] Examining top hat plan participation and reporting." Icon to read more

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Press Releases

Most Popular Items in the Previous Issue

Text of CMS Technical Fact Sheet: CCIIO Premium Reductions Provisions (PDF)
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

Eighth Circuit Upholds Decision to Lay Off Employee Who Was on FMLA Leave
Society for Human Resource Management [SHRM]; membership may be required to view article

View COVID-19 News and Resources

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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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