Health & Welfare Plans Newsletter

September 25, 2020

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[Guidance Overview]

HHS Takes Action as Part of President Trump's Healthcare Plan

"President Trump unveiled his America First healthcare plan, signing an executive order to deliver Americans better care, lower costs, and more choice, continuing the work that HHS has been doing under his leadership.... HHS: [1] Issued a final rule and guidance from the Food and Drug Administration to open the first-ever pathway for states to use to safely import prescription drugs to lower patients drug costs. [2] Solicited private-sector proposals, as called for in the President's July executive order, on allowing Americans to get lower-cost FDA-approved drugs and insulins from American pharmacies via importation and reimportation. [3] Released the 2021 Medicare Advantage and Medicare Part D Premium landscape, showing that average 2021 premiums for Medicare Advantage plans are expected to decline 34.2 percent from 2017 while plan choice, benefits, and enrollment continue to increase, and that Part D premiums will be down 12 percent from 2017[.]" Icon to read
more

U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

Aligning Your FMLA Policy with the New Massachusetts Paid Family Medical Leave Law

"There is still time to adjust FMLA policies, but one aspect of a typical FMLA policy might require prompt attention: the method for calculating the 12-month period applicable to an employee's leave entitlement. Most employers use the 'rolling look-back' method, but this option is not available under the PFMLL. If an employer wishes to change its FMLA policy to align with the PFMLL in this area the employer must bear in mind that FMLA regulations require 60 days' notice to employees before making a change." Icon to read more

Hirsch Roberts Weinstein LLP

[Guidance Overview]

DOL Agrees -- Partially -- with New York Court Decision on FFCRA

"[If an employer had excluded from FFCRA leave-eligible employees who merely supported healthcare providers but were not performing medically related services, the employer should begin permitting those employees who no longer fall within the healthcare provider definition to take leave under FFCRA.... Employers that may be subject to the New York court opinion ... may wish to consult with counsel to determine the appropriate course of action in light of the fact that the DOL's modified regulation does not conform in every respect to the court's opinion." Icon to read more

Lockton

Exceptional Usefulness and Quality icon2020 End of Year Plan Sponsor 'to Do' List, Part 1: Health and Welfare Plans

"Amidst a once in a 100-year pandemic, many employers found themselves having to furlough and lay-off employees due to the related economic downturn. As a result, many Americans found themselves without health and life insurance when they needed it most.... Depending on the outcome of the election, 2021 could bring significant changes to our employer-based health care system, but for now, ACA remains the law of the land and employers must continue to comply with its requirements. " Icon to read more

Snell & Wilmer

Comparing Insulin Prices in the U.S. to Other Countries

"Insulin prices have increased dramatically over the past decade in the United States. This report presents results from international price comparisons of insulins using a price index approach. The average gross manufacturer price for a standard unit of insulin in 2018 was more than ten times the price in a sample of 32 foreign countries: $98.70 in the U.S., compared with $8.81 in the 32 non-U.S. OECD countries for which we have prescription drug data." Icon to read more

Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

OCR Releases Guidance on HIPAA for Mobile Health Technology

"The increased use of mobile health applications and other related tools to assist healthcare providers with facilitation of telehealth capabilities, also comes with an increased risk of data breaches and improper disclosures of protected health information (PHI) to unauthorized individuals. The features of OCR's new Health apps are a great starting point for HIPAA covered entities and businesses associates that utilize mobile health apps, and want to ensure compliance with their HIPAA obligations." Icon to read more

Jackson Lewis

Health Insurer Pays $6.85 Million to Settle Data Breach Affecting Over 10.4 Million People

"Premera Blue Cross (PBC) has agreed to pay $6.85 million to [OCR] and to implement a corrective action plan to settle potential violations of the [HIPAA] Privacy and Security Rules related to a breach affecting over 10.4 million people. This resolution represents the second-largest payment to resolve a HIPAA investigation in OCR history." Icon to read more

U.S. Department of Health and Human Services [HHS]

Hacker's Theft of Over Six Million Individuals' PHI Leads to $2.3 Million HIPAA Settlement

"In April 2014, a cyberhacking group used compromised credentials to remotely access the BA's information system through its virtual private network (VPN). Although the BA was initially unaware of the incident, it received notice of the intrusion from the FBI eight days after it occurred. Despite this notice, however, the attacker's impermissible access continued until August 2014." Icon to read more

Thomson Reuters Practical Law

Colorado Court of Appeals: Terms of Employer's Vacation Policy Control Whether Accrued, Unused Vacation Time Must Be Paid Out at Separation

"The case addressed an unsettled question under the Colorado Wage Claim Act -- namely, whether accrued, unused vacation time must be paid out at separation of employment where an employer's vacation policy states that it will not be. The Court of Appeals held that such time need not be paid out at separation ... [This] decision ... adds fodder to a judicial debate over payout of vacation time that is likely to be resolved by the Colorado Supreme Court in 2021." [Blount, Inc. v. Colorado Dept. of Labor and Employment, Division of Labor Standards and Statistics, No. 2018CA2455 (Col. App. Sep. 24, 2020)] Icon to read more

Holland & Hart LLP

Focus on Supreme Court Seat Fuels Uncertainty for Employer Health Plans

"Employers will be wise to give some thought to how they might react to different outcomes. For example, if some common provisions eliminated by the ACA ... were permitted again, would an employer reshape their plan design to curb costs? If the employer 'play-or-pay' mandate (the 30-hour rule) were struck down, would an employer move full-time eligibility back to 40 hours?" Icon to read more

Mercer

[Opinion]

ACA Architect Predicts the Future of Healthcare

"The ACA was essentially the most conservative way to expand health insurance to 20 million people. There's nothing to the right of the ACA that can bring coverage.... It's too expensive in the sense that single payer is a transfer of the burden on the private sector, to the burden of putting it explicitly on taxation, and people don't like that transfer.... After decades of trying to figure out market-based solutions to cost control, I don't think there are any. I think it's time to regulate healthcare prices." Icon to read more

Jonathan Gruber, Ph.D., via American Healthcare Journal

Benefits in General

ERISA Advisory Council to Meet October 22

"[T]he 202nd open meeting of the [ERISA Advisory Council] will be held via a teleconference on Thursday, October 22, and Friday, October 23, 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] Examining Top Hat Plan Participation and Reporting, and [2] Considerations for Recognizing and Addressing Participants with Diminished Capacity." Icon to read more

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

Employer May Be Held Liable for Service Provider's Error

"The Second Circuit Court of Appeals ... has held that a plaintiff properly pled her breach of fiduciary duty claim for equitable relief against an employer in connection with a third party administrator's clerical error in calculating life insurance benefits payable to her under the employer's ERISA welfare plan." [Sullivan-Mestecky v. Verizon Communications Inc., No. 18-1591 (2d Cir. Jun. 1, 2020)] Icon to read more

The Wagner Law Group

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Lifestyle Spending Accounts: Animal, Mineral, or Vegetable?

"Lifestyle spending accounts are a trending after-tax benefit consisting of employer after-tax reimbursement of lifestyle products and services such as personal coaching, fitness wear and gear, pet boarding, personal training, etc. Employers choose a yearly maximum and only pay out documented reimbursement requests, up to the maximum limit. Employer deducts reimbursed amounts as taxable compensation to employees. Just wondering if anyone out there has formally classified this 'benefit' as either a payroll practice, benefit plan, or addressed potential constructive receipt issues." Icon to read more

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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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