Health & Welfare Plans Newsletter

January 12, 2021

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[Official Guidance]

Text of EEOC Opinion Letter: Individual Coverage Health Reimbursement Arrangements (ICHRA) under the ADEA

Jan. 7, 2021. "An older employee who purchases an individual health insurance plan using funds drawn from an ICHRA may bear a greater proportion of the health insurance plan's cost relative to the proportion than he or she would bear at a younger age, or relative to the proportion that younger ICHRA participants would bear. Nevertheless, the arrangement ... does not violate the ADEA under these circumstances. The ADEA's prohibition against less favorable health insurance plans for older employees only applies to plans that are offered or provided by the employer. Individual health insurance plans that are purchased by the employee from independent third parties, with no involvement from the employer in the selection of the plans, do not fall into this category.... [E]mployers that choose to increase the contributions to an older employee's ICHRA to offset age-based increases to his or her health plan costs will not violate the ADEA." Icon to read more

U.S. Equal Employment Opportunity Commission [EEOC]

[Guidance Overview]

EEOC Reproposes Wellness Program Incentive Limits Under the ADA and GINA

"The EEOC repeatedly cites the outcome of the AARP litigation as effectively requiring the agency to issue wellness program incentive standards that do not harmonize the incentive levels under Title II of GINA with those allowed under the 2013 HIPAA regulations.... [T]he EEOC also invites comments on its reproposals regarding: [1] Possible justifications under GINA Title II for adopting a higher-than-de minimis incentive level for health-contingent wellness programs that are part of or qualify as a group health plan. [2] The maximum amount of such an incentive." Icon to read more

Thomson Reuters Practical Law

[Guidance Overview]

EEOC Issues New Proposed Wellness Regulations

"The EEOC's interpretive guidance that is published with the ADA Proposed Rule lists water bottles and gift cards of nominal value as examples of de minimis incentives.... [A] $50 monthly premium penalty, a gym membership, and airline tickets are given as examples of incentives that would not be de minimis.... [H]ealth-contingent wellness programs that are part of a group health plan -- whether activity-only or outcome-based -- are excepted from the de minimis incentive limit under the ADA Proposed Rule, while participatory wellness programs -- programs that simply require employees to complete a health risk assessment or undergo a biometric screening, for example -- are subject to the de minimis incentive limit. " Icon to read more

Ice Miller LLP

[Guidance Overview]

Exceptional Usefulness and Quality iconConsolidated Appropriations Act, 2021: Top Practical Considerations on FSA, Election Change Relief

"Have you communicated with your administrator for the healthcare FSA and dependent care FSA to confirm their capabilities for implementing these rules? ... Would you permit the entire amount or some lower amount to be carried over? ... What impact would the carryover or grace period have on health savings account (HSA) eligibility? ... Are your administrators able to administer the ordering rules that enable employees to use FSA dollars from two different plan years for the entire next plan year? ... [H]ave you considered the potential impact this may have on your COBRA notices? ... How would you communicate the changes to employees?" Icon to read more

Jackson Lewis P.C.

[Guidance Overview]

Year-End Stimulus Bill Includes ERISA Disclosure Requirements for Certain Group Health Plan Service Providers

"[T]he disclosure requirement is limited to brokers and consultants -- it does not apply, for example, to insurance providers or pharmacy benefit managers (PBMs).... Because plan sponsor payments are excluded from the definitions of 'direct compensation' and 'indirect compensation,' it would appear that a broker or consultant paid solely by the plan sponsor is not subject to this rule. However, if the broker or consultant is receiving 'indirect' compensation from other sources, such as an insurance company, then the rule may apply if that compensation reaches the $1,000 threshold." Icon to read
more

Morgan Lewis

[Guidance Overview]

Changes to the California Family Rights Act and Small Employer Family Leave Mediation

"Assembly Bill 1867 established a new Small Employer Family Leave Mediation Pilot Program.... [1] Who may use this program? ... [2] When to request mediation? ... [3] What happens when a request for mediation is made?" Icon to read more

FordHarrison

Exceptional Usefulness and Quality iconPaid Sick and Personal Leave Laws and State Gatekeepers

"This update expands on our initial Infographic, tracking the expansion of paid sick leave laws, both in terms of geography and variations, over the last two years and examining the status of the nation's anti-local sick leave law stockpile." Icon to read more

Seyfarth

How Many Americans Have Lost Jobs with Employer Health Coverage During the Pandemic?

"[B]etween February and June 2020, 7.7 million workers lost jobs with ESI, and the ESI of these workers covered 6.9 million dependents, for a total of 14.6 million affected individuals. [An] Urban Institute report in July concluded that, on average from April to December 2020, 7.3 million workers and their dependents would lose ESI as a result of the recession.... A direct estimate from the BlueCross BlueShield Association suggests that only 3.1 million people lost ESI between March and September." Icon to read more

The Commonwealth Fund

Takeaways from the First Days of the CMS Price Transparency Rule

"[1] Early compliance varies widely among hospitals. [2] CMS might crack down harder than initially expected. [3] There are unanswered questions about who CMS considers employed physicians and their inclusion in the mandate. [4] Price transparency is not going anywhere." Icon to read more

HealthLeaders Media

Economic Report Card for the ACA's Employer Mandate

"The March 2015 CBO baseline estimated $167 billion in net revenue from the employer mandate from 2016 to 2025.... CBO was off by nearly two orders of magnitude.... [F]or 2016, the CBO projected $9 billion in revenue from the mandate penalty.... IRS reported penalties of $420 million assessed for tax year 2016, and after dispute resolution, $142 million collected. While complete information is still not available from the IRS for tax year 2017, preliminary data indicates a similar gap.... Furthermore, the cost of enforcement is not trivial." Icon to read more

The White House

Benefits in General

[Official Guidance]

Text of IRS Proposed Regs: Mandatory 60-Day Postponement of Certain Tax-Related Deadlines by Reason of a Federally Declared Disaster

27 pages. "This document contains proposed regulations relating to the new mandatory 60-day postponement of certain time-sensitive tax-related deadlines by reason of a Federally declared disaster. This document also contains proposed regulations clarifying the definition of 'Federally declared disaster.' These proposed regulations affect individuals who reside in or were killed or injured in a disaster area, businesses that have a principal place of business in a disaster area, relief workers who provide assistance in a disaster area, or any taxpayer whose tax records necessary to meet a tax deadline are located in a disaster area. This document invites comments from the public regarding these proposed regulations." Icon to read more

Internal Revenue Service [IRS]

[Guidance Overview]

2021 Appropriations Bill Includes New and Expanded Relief for Employee Benefit Plans

"Flexible Spending Account carryovers and grace period extensions permitted for plan years ending in 2020 and 2021.... Health care FSA reimbursements for terminated participants.... Carry-forward opportunity for aged-out dependents.... Surprise medical billing.... Safe harbor to avoid a partial plan termination.... Coronavirus related distributions permitted from money purchase pension plans.... Non-COVID related disaster distributions." Icon to read more

Hunton Andrews Kurth LLP

Press Releases

HERO Ushers in New Research Leadership
Health Enhancement Research Organization [HERO]

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2021 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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