Health & Welfare Plans Newsletter

December 31, 2020

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[Official Guidance]

Text of Updated DOL Q&As: Families First Coronavirus Response Act (FFCRA)

Updated on Dec. 31, 2020, to add Q&As 104 and 105:

  1. I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020?
  2. I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? 
 Icon to read more

Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

[Official Guidance]

Text of CMS Guidance: Treatment of Risk Corridors Recovery Payments in the Medical Loss Ratio and Rebate Calculations (PDF)

14 pages. "The purpose of this guidance is to describe how issuers must treat the [risk corridor] payment amounts recovered as a result of the Supreme Court decision in their MLR and rebate calculations. On September 30, 2020, CMS published a draft of this guidance and invited public comments. CMS has received comments and questions from 16 issuers, issuer associations, and state regulators, and has made several revisions in this final guidance document in response to the comments." Icon to read more

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

[Guidance Overview]

Virtual Posters: New DOL Guidance on Federally-Mandated Notices in a Virtual Workplace

"For employers who are embracing remote work as part of a long-term strategy, [Field Assistance Bulletin 2020-7] is welcome news. Here are some practical considerations for employers taking that approach: [1] Consider designing an easily accessible space in your company intranet or employee portal for federal and state posters. [2] Consider making your company intranet/portal appear automatically on employees' computers upon logging in. [3] If you have multiple groups of employees, covered by different laws (e.g., a group involved in government contracts, or groups in different states), ensure that each group can tell which posters are applicable." Icon to read more

FordHarrison

[Guidance Overview]

Stimulus Redux: What the New Law Means for Welfare Benefit Plans

"[1] Flexible spending arrangements (FSAs) ... [2] Surprise billing ... [3] Mental health and substance use disorder benefits ... [4] Transparency rules ... [5] Reporting on pharmacy benefits ... [6] Student loan repayments ... [7] Disclosure of compensation for service providers ... [8] Deductible medical expenses." Icon to read more

Seyfarth Shaw LLP

[Guidance Overview]

New Stimulus Deal Brings Additional Health Care Cost Transparency Rules

"The transparency provisions of the stimulus bill ... prohibit so-called gag clauses in agreements between payors and providers that aim to prevent the disclosure of certain information. In particular, group health plans and health insurers may not enter into agreements with health care providers, third-party administrators, or managers of provider networks that would restrict the plan or the insurer's ability to access and share cost or quality of care information in certain circumstances.... These rules are in addition to the transparency requirements set forth in regulations issued [in November] ... establishing disclosure requirements for group health plans and health insurers related to participant cost-sharing, in-network negotiated rates, historical out-of-network allowed amounts, and drug pricing information." Icon to read more

Ballard Spahr LLP

[Guidance Overview]

Stimulus Legislation Temporarily Relaxes Flexible Spending Arrangement Rules

"Plan sponsors that elect to adopt the expanded carryover or extended grace period rules should notify participants of the changes as soon as possible.... If a health FSA is amended to temporarily permit terminated employees to continue participation for the remainder of the plan year, plan administrators should coordinate the new process with the plan sponsor's COBRA procedures.... To mitigate against experience losses, a participant should not be permitted to elect a new annual contribution amount that, as of the election change date, is less than the greater of the amount contributed in 2021 and the amount of reimbursements received in 2021." Icon to read more

Nixon Peabody LLP

[Guidance Overview]

Flexible Spending Account Plan Carryovers

"Because many FSA Plan plan years begin on January 1, 2021, employers who wish to allow employees to make changes in their FSA Plan contribution elections to take into account the availability of roll over funds from the 2020 plan year that were not anticipated when they made their elections during the fall 2020 open enrollment period may do so under the change in election amount relief[.]" Icon to read more

Ropes & Gray LLP

[Guidance Overview]

Employer Options for Continuing FFCRA Paid Leave

"Most employers created FFCRA paid leave policies that expressly expire on December 31, 2020. If an employer decides to provide extended FFCRA paid leave to employees, it may need to update its FFCRA policy to reflect that it will be in effect through March 31, 2021.... Even if an employer chooses not to provide FFCRA leave in early 2021, some state and local laws may require an employer to provide COVID-19-related paid leave to employees. In addition, many states have general paid leave laws set to go into effect on January 1, 2021[.]" Icon to read more

Godfrey & Kahn S.C.

[Guidance Overview]

Upcoming Deadline iconCalifornia Significantly Expands Its Family and Medical Leave Law

"[S]tarting January 1, 2021, CFRA will apply to employers with only 5 or more employees ... Other critical changes include the ability of employees to take leave to care for grandparents, grandchildren, siblings and domestic partners, in addition to parents, children and spouses, and the availability of leave for qualifying military exigencies." Icon to read more

Dentons

[Guidance Overview]

Massachusetts Opens Applications for PFML Bonding Leave for 2020 Births or Child Placements and Releases Emergency Regs Modifying Bonding Leave Period for Acute Care Hospitals

"Covered individuals may apply for up to 12 weeks of family bonding leave for the birth, placement or adoption of a child in 2020 ... The leave must be taken with 12 months of the qualifying event. The application for other types of leave are expected to open on January 1, 2021.... [T]he Department has issued Emergency Regulations that allow an employee of an acute care hospital to request that the period for taking PFML bonding leave for a birth, adoption or foster care placement that occurred during calendar year 2020, be extended beyond the normal 12-month post-birth/placement period as long as the employee completes the leave by December 31, 2021.... The Department also issued another set of Emergency Regulations to reflect statutory changes to definitional terms recently enacted by the Legislature." Icon to read more

Seyfarth Shaw LLP

Exceptional Usefulness and Quality iconBest Practices for Communicating with Employees on Medical Leave and Utilizing Intermittent Leave Schedules

"[An] employer should not assign any work to employees on FMLA/CFRA leave in order to avoid interference claims. Necessary communications about work assignments should be brief, done sparingly, and not require the employee to travel to the workplace. The employer may also send e-mails to employees, but should not expect employees on leave with remote access to respond prior to returning." Icon to read more

Liebert Cassidy Whitmore

Short-Term and Long-Term Disability Benefits for Civilian Workers in 2020

"Short-term disability insurance was available to 40 percent of civilian workers in March 2020, and long-term disability insurance was available to 35 percent. Access to these benefits varies by wage group. Nine percent of workers in the lowest wage group had access to long-term disability insurance, compared with 59 percent of workers in the highest wage group." Icon to read more

U.S. Bureau of Labor Statistics [BLS]

[Opinion]

Will CHIRA Introduce Additional Regulatory Oversight and Litigation in Health Insurance Markets?

"When you consider that some states, like New Jersey, have a combined Banking & Insurance Department and that much of the business of insurance regulation is fraud prevention (that is fraud AGAINST insurers) there are very few resources remaining for states to oversee a trillion-dollar industry with any degree of effectiveness." Icon to read more

Burypensions

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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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