Health & Welfare Plans Newsletter

December 30, 2020

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[Guidance Overview]

DOL Green Lights Telemedicine Visits to Support FMLA Leave, Allows Electronic FMLA Posting

"[T]he DOL issued an FAQ earlier this spring greenlighting telemedicine visits under the FMLA through December 31, 2020. Yesterday's guidance now extends this concept permanently. In this latest guidance, however, DOL made clear that video conferencing would be critical to meeting FMLA's requirements, noting that 'communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an 'in-person' visit.' ... DOL also was wise to address an employer's posting requirements in an increasingly remote workplace." Icon to read more

FMLA Insights

[Guidance Overview]

New Health Plan Reporting Required for Pharmacy Benefits and Drug Costs

"Given the volume of information and the expectation that reporting will be required before the end of 2021, plan sponsors and health plan issuers will need to begin considering putting in place mechanisms to ensure the appropriate data will be collected in order to complete the required reporting. In addition, it is likely that vendor agreements, such as pharmacy benefit management and administrative services agreements, will need to be revisited to ensure data collection and reporting expectations are appropriately reflected and necessary protections are in place." Icon to read more

Winston & Strawn LLP

[Guidance Overview]

Surprise Medical Billing Protections Coming for Participants in 2022

"Beginning in 2022, employer-sponsored health plans will be required to pay providers certain emergency and out-of-network charges that would have otherwise been balance billed to participants.... Employers had generally favored setting a standard for determining the amounts providers would have to be paid. Rather than take that approach, the act sets up a negotiation and arbitration system. Healthcare providers generally favored this approach." Icon to read more

Ogletree Deakins

[Guidance Overview]

2021 Appropriations Act Adds New Restrictions on 'Gag Clauses' for Health Plans

"It is not atypical for an administrative services agreement or pharmacy benefit management agreement to contain provisions that restrict disclosure of certain proprietary information to plan sponsors or their business associates. These new transparency provisions should be incorporated into any new or future requests for proposals. In addition, health plan sponsors and fiduciaries should review their service provider contracts and HIPAA business associate agreements to ensure that they do not contain the prohibited provisions, and make any necessary amendments." Icon to read more

Winston & Strawn LLP

[Guidance Overview]

Relief Provided from Flexible Spending Account 'Use It or Lose It' Rule

"While many plans have already had annual enrollment for 2021 so that participants cannot change elections to address these new permissive carryovers, the Act also permits unused amounts from 2021 to be carried over to 2022. In addition the Act permits employers to allow elections to be changed by participants during plan years ending in 2021 to alter the employee's contribution toward their 2021 health flexible spending account and dependent care flexible spending account." Icon to read more

Jackson Walker

[Guidance Overview]

New Temporary Special Rules for Flexible Spending Accounts

"The act permits plan sponsors to implement the following voluntary changes for health and/or dependent care FSAs: Unlimited carryover.... Extended grace period.... Election changes.... Post-termination reimbursements from health FSAs.... Carry forward for aged-out dependents in dependent care FSA.... [C]alendar year plans adopting these voluntary changes will generally need to be amended by December 31, 2021." Icon to read more

Bradley

[Guidance Overview]

Year-End Stimulus Bill Permits Extension of FFCRA Leave

"Covered employers are permitted to extend partially paid FFCRA leave and to claim a payroll tax credit for qualifying leave taken through March 31, 2021. FFCRA rights expire on December 31, 2020, for employees of covered companies who do not voluntarily elect to extend the benefits. Employers must still accommodate employees with disabilities and comply with employee protections mandated by state and local laws." Icon to read more

Pillsbury Winthrop Shaw Pittman LLP

[Guidance Overview]

Expiration of the FFCRA and California COVID-19 Supplemental Paid Sick Leave: What Now?

"Employers with employees who had been on FFCRA leave, which will expire on December 31, 2020, should evaluate the circumstances of continued leave ... Employers allowing employees to continue their FFCRA leave up to the original leave entitlement may claim the payroll tax credit until March 31, 2021. Employers should evaluate what leaves and benefits may be available to employees seeking time off for COVID-19 related reasons, beyond the FFCRA and California COVID-19 Supplemental Paid Sick Leave law." Icon to read more

Dentons

[Guidance Overview]

Massachusetts Paid Family and Medical Leave vs. the FFCRA

"For employers with employees working in Massachusetts, [the optional extension of leave under the FFCRA] may introduce some confusion as to how the FFCRA leaves will interact with leaves allowed under Massachusetts Paid Family and Medical Leave (MAPFML) which become available January 1, 2021.  In some cases, the FFCRA and MAPFML leaves will accrue concurrently." Icon to read more

OneDigital Health and Benefits

Transparency Rule for Hospitals Upheld on Appeal

"The American Hospital Association had sued to stop the initiative from taking effect. But in June, a federal judge in the District of Columbia ruled that the new rules were legal. The hospital trade group appealed ... On [December 29], a panel for the U.S. Circuit Court of Appeals in the District of Columbia unanimously upheld the district court's ruling.... The rule, first proposed in July 2019, could upend the $1 trillion hospital industry by unveiling rates long guarded as trade secrets." [American Hospital Association v. Alex Azar, II, No. 20-5193 (D.C. Cir. Dec. 29, 2020)] Icon to read more

The Wall Street Journal; subscription may be required

Benefits in General

[Guidance Overview]

Exceptional Usefulness and Quality iconFinal UBIT Regs Likely to Affect Many Benefit Plan Investors

"While the Notice and Proposed Regulations provided some helpful approaches to simplify the new rules for benefit plan investors, the IRS resisted making additional changes along these lines in the Final Regulations. For example, the IRS did not increase the thresholds for 'qualifying partnership interests' described in the Proposed Regulations and rejected the request of some commenters to grandfather partnership interests held before August 21, 2018. Similarly, the IRS declined to allow aggregation of all investment activities by benefit plans, regardless of the ERISA policy considerations cited by commenters. Nevertheless, the Final Regulations did make some important changes to the Proposed Regulations[.]" Icon to read more

Groom Law Group

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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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