Health & Welfare Plans Newsletter

December 18, 2020

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[Guidance Overview]

Regs Provide Cost-Sharing Change Flexibility for Grandfathered Health Plans

"Although the annual cost-of-living adjustment to the required minimum HDHP deductible has not yet exceeded the threshold that would cause loss of grandfathered status, grandfathered HDHPs will be able to increase their cost-sharing to meet a future minimum deductible adjustment without losing grandfathered status.... The economic impact analysis included with the final regulations estimates that 400,000 firms sponsor ERISA-covered plans that are grandfathered or include a grandfathered benefit package option, and that these plans cover 19.1 million participants and beneficiaries." Icon to read more

Thomson Reuters / EBIA

[Guidance Overview]

Guidance on Maintaining Grandfathered Status Under the ACA

"The guidance provides some new flexibility to grandfathered health plans in terms of testing to review whether certain increases in cost-sharing cause the plan to lose grandfathered status. However, the final rule does not significantly change the rules applicable to grandfathered plans. The rule will apply to plan changes that take effect on or after June 15, 2021." Icon to read more

Segal

[Guidance Overview]

Upcoming Deadline iconNew York State Proposes Paid Sick Leave Law Regs

"The PSLL requires all New York private employers to provide paid sick leave, which employees may begin using as of January 1, 2021. The amount of sick leave that employers must provide their employees annually depends on the employer's size and income. On December 9, 2020, the NY [DOL] published proposed regulations clarifying a number of issues relating to the PSLL as summarized [in this article]." Icon to read more

Epstein Becker Green

[Guidance Overview]

Exceptional Usefulness and Quality iconUpcoming Deadline iconWhat New York Employers Need to Know About Sick Leave

"We have employees that work in New York, as well as outside of New York. Do we include out-of-state employees when determining employer size? ... We are a New York based company but have some employees who work outside of the state. Are those employees eligible for NYPSL? ... Can we impose a waiting period on an employee's ability to use sick leave benefits at the beginning of the employee's employment? ... How much notice is an employee required to give before using leave? ... We have a PTO policy that does not separate out sick leave. Is this sufficient? ... If we frontload sick time leave at the start of the year, are we able to pro-rate the leave for a new hire during the year?" Icon to read more

Fisher Phillips

Use of Low-Value Health Care Services Rises After Satisfying Health Plan Deductibles (PDF)

"[T]he likelihood of receiving low-value health care services increased by as much as 83 percent, depending on the service, for those who had satisfied their plan's deductible relative to those who had not.... The largest effect was seen for colorectal cancer screenings.... [T]hese findings underscore the need to implement provider-facing initiatives to reduce low-value care -- and ensure that policies are aligned with consumer cost sharing to achieve low-value-care avoidance." Icon to read more

Employee Benefit Research Institute [EBRI]

Surprise Billing Protections on the Cusp of Becoming Law

"The new legislation, if enacted, would protect consumers from surprise bills for: 1) emergency services delivered by out-of-network providers, including emergency air transport, or by out-of-network facilities; and 2) nonemergency services provided by out-of-network providers in network facilities and for which patients do not consent. Consumers' costs would be limited to cost-sharing amounts that apply to in-network services; providers are banned from billing for any higher amounts." Icon to read more

The Commonwealth Fund

Text of Ninth Circuit Opinion: Equitable Estoppel Available to Provider When Insurer Failed to Assert Anti-Assignment Claim (PDF)

14 pages. From the court's syllabus: "The panel held that plaintiff, [a healthcare provider who sued as an] assignee of its patients, sufficiently alleged that defendant waived or was equitably estopped from raising an anti-assignment provision in ERISA plan documents as a reason for denying the benefits claim for the first time in litigation. Specifically, defendant confirmed that ERISA plan benefits were available during pre-surgery conversations, plaintiff submitted the claim form to defendant indicating that it sought to recover benefits via a patient assignment, and defendant either denied in full or underpaid the claims during the administrative claim process without asserting the anti-assignment provision as a ground for denying a full reimbursement." [Beverly Oaks Physicians Surgical Center, LLC v. Blue Cross Blue Shield of Illinois, No. 19-55820 (9th Cir. Dec. 17, 2020)] Icon to read more

U.S. Court of Appeals for the Ninth Circuit

Exceptional Usefulness and Quality iconDistrict Court Opinion Provides Playbook for Assessing Disability from 'Chronic Fatigue Syndrome'

"This new case provides a helpful playbook of arguments to make in assessing chronic fatigue, or self-reported, disability types of cases." [Lukianczyk v. Unum Life Ins. Co. of America, No. 20-223 (E.D. Cal. Dec. 4, 2020)] Icon to read more

Lane Powell PC

Court Says Burnout Not a Serious Health Condition Under the FMLA

"One Alabama federal trial court recently ... held that a firefighter-paramedic's burnout or chronic fatigue did not constitute a serious health condition as defined by the FMLA.... [The employee] never presented any evidence that he had been diagnosed with such a condition -- either before or after his resignation." [Blake v. City of Montgomery, No. 19-243 (M.D. Ala. Oct. 6, 2020)] Icon to read more

McAfee & Taft

Pandemic-Related Paid Sick Days and Leave to Expire Dec. 31 — with No Extension in Sight

"Unions and workers' rights and consumer advocacy groups are this week waging a last-ditch effort to get Congress to extend the program into 2021. They argue that the program is a critical component helping to prevent the spread of the virus and providing financial assistance to struggling families. They also assert that a number of unwise exemptions -- plus a lack of enforcement and public awareness -- have limited the program's effectiveness." Icon to read more

Kaiser Health News

[Opinion]

National Paid Sick Leave: Achieving Universal Worker Coverage

"[R]esearch suggests access to paid sick leave carries a host of important benefits for individuals, employers, public health, the economy and government spending. To address cost concerns, [the authors] offer a modified version of the reimbursement mechanism used in the [FFCRA] to allow employers to anticipate their paid sick leave costs and access federal reimbursement quickly for above-average costs." Icon to read more

Urban Institute

Benefits in General

[Official Guidance]

IRS Regulatory Agenda, Fall 2020 (Employee Benefit Items)

Numerous employee benefits items, some of which are:

Proposed Rules

  • Notice to Participants of Consequences of Failing to Defer Receipt of Qualified Retirement Plan Distributions; Expansions of Applicable Election Period and Period for Notices
  • Definition of Church Plan
  • Application of Nondiscrimination Requirements, Backloading Limitations, Certain Plan Termination Rules, Benefit Limitations, and Top Heavy Rules to Statutory Hybrid Plans
  • MEPs and the Unified Plan Rule
  • Guidance on the Timing of the Use or Allocation of Forfeitures in Qualified Retirement Plans
  • Voluntary Employees' Beneficiary Association (VEBA) Regulations
  • Income Tax Withholding on Certain Periodic Retirement and Annuity Payments Under Section 3405(a)
  • SECURE Act Modifications to Certain Rules Governing 401(k) Plans
  • Guidance on 401(a)(9) Required Minimum Distributions

Final Rules

  • Definition of Dependent Under Section 152
  • Reporting and Notice Requirements for Deferred Vested Benefits Under Section 6057
  • Application of Normal Retirement Age Regulations to Governmental Plans
  • Nondiscrimination Relief for Closed Defined Benefit Plans
  • Withholding on Certain Retirement Plan Distributions Under Section 3405(a) and (b)
  • Guidance Under Section 162(m)
  • MEPs and the Unified Plan Rule
  • Contribution Limits Applicable to ABLE Accounts
  • Application of the Employer Shared Responsibility & Certain Nondiscrimination Rules to HRAs and Other Account-Based Group Health Plans Integrated With Individual Health Insurance Coverage or Medicare
 Icon to read more

Internal Revenue Service [IRS], U.S. Department of the Treasury

Press Releases

EBRI Names New Board of Trustee Leaders
EBRI [Employee Benefit Research Institute]

Most Popular Items in the Previous Issue

OCR Report on 2016-2017 HIPAA Audits: Most Covered Entities and Business Associates Not in Compliance (PDF)
U.S. Department of Health and Human Services [HHS], Office for Civil Rights [OCR] Health Information Privacy Division

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

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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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