Health & Welfare Plans Newsletter

January 22, 2021

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[Guidance Overview]

Exceptional Usefulness and Quality and Usefulness iconHoney, I Shrunk the Incentive: EEOC Proposes Wellness Regs

"EEOC regulations proposed in the final days of the Trump Administration would, if finalized, reduce the permissible incentive for participatory wellness programs to a de minimis amount -- such as a water bottle or T-shirt.... The Biden Administration has withdrawn the proposed regulations from publication in the Federal Register ... Although they may not be finalized in their current form, the proposed regulations reflect the thinking of the EEOC on how small an incentive must remain (answer: very small) in order to preserve the voluntariness of a participatory wellness program. As such, employers cannot afford to ignore them." Icon to read more

E is for ERISA

[Guidance Overview]

EEOC Issues Proposed Regs on Employer Wellness Programs

"[T]he EEOC proposal would permit employers to offer only a de minimis incentive in exchange for employee's or family members' participation in a wellness program that contains inquiries about their manifestation of diseases or disorders, and similarly offers the examples of a water bottle or a gift card of modest value as clearly de minimis. However, unlike the ADA rules, there is no exception from the de minimis rule for health contingent wellness programs." Icon to read more

The Wagner Law Group

[Guidance Overview]

Health Plan Changes in the Consolidated Appropriations Act, 2021

"Most changes are effective for the first plan year beginning on or after January 1, 2022, requiring group health plan sponsors to consider these changes in plan design and the vendor selection process that will start in the next few months for 2022 calendar year plans. In addition, decision-makers on health plan vendor contracts will be required to review new required disclosures from such vendors which are intended to shine a new light on compensation arrangements for various service providers to group health plans. Disclosures must include both direct and indirect compensation to service providers." Icon to read more

Jackson Walker

[Guidance Overview]

The Doctor Will See You Now -- via Telemedicine -- and It May Qualify as Treatment Under the FMLA

"[An] eligible employee who tells you that the doctor's visit was via videoconference should be granted FMLA leave ... But, keep in mind that telephone calls without video, letters, emails, and text messages alone are not considered treatment under the FMLA." Icon to read more

Bradley

[Guidance Overview]

DOL Sets 2021 Penalties for Health & Welfare Benefit Plan Violations

"The year-over-year inflation increase for 2021 is 1.182%.... [A] chart shows the 2021 and 2020 maximum (and in some cases, minimum) penalties for certain health and welfare plan violations assessed after Jan. 15." Icon to read more

Mercer

Fifth Circuit Ruling May Make HIPAA Enforcement More Difficult for HHS

"[T]he court emphasized that the plain language of the Encryption Rule only requires that a covered entity have a 'mechanism' for encryption in place; a covered entity's failure to encrypt three devices did not mean that it 'never implemented 'a mechanism' to encrypt anything at all.' ... The court held that HHS could not prove that M.D. Anderson 'disclosed' ePHI 'without proving that someone 'outside' the entity received it,' a standard that the agency conceded could not be met in that case, and that would be difficult to meet generally." [Univ. of Texas M.D. Anderson Cancer Center v. HHS, No. 19-60226 (5th Cir. Jan. 14, 2021)] Icon to read more

Dentons

HHS Finalizes Exchange Rules for Premium Payments Made by ICHRAs and QSEHRAs

"The preamble notes that this portion of the regulations is intended to help overcome insurers' confusion about whether they must accept payments from an ICHRA or QSEHRA, which commenters stated has been an obstacle to the implementation of these payment options." Icon to read more

Thomson Reuters / EBIA

Health Savings Account Balances, Contributions, Distributions, and Other Vital Statistics, 2019

"The average end-of-year balance ($2,672) was higher than the average beginning-of-year balance ($2,187). The average balance increase was even larger when analyzing only accounts that had received either an employee or employer contribution in 2019 ($2,232, increasing to $3,055).... Accounts that received an employer contribution had higher total contributions ($2,846 vs. $2,455) and more frequently contained investments other than cash (9 percent vs. 7 percent).... 63 percent of HSAs experienced a distribution in 2019." Icon to read more

Employee Benefit Research Institute [EBRI]

Lawsuit Challenges Georgia's 1332 Waiver

"[T]he plaintiffs argue that the 2018 guidance and waiver approval are contrary to Section 1332, exceed the scope of the agencies' authority (by allowing states to waive non-waivable provisions of the ACA), and are arbitrary and capricious.... Georgia's waiver agreement includes some unique terms and conditions relative to waivers in other states. Those terms seem designed to limit the federal government's ability to suspend or terminate Georgia's waiver. But the federal government can do so as long as it complies with relevant procedures." [Planned Parenthood Southeast, Inc. v. Azar, No. 21-117 (D.D.C. complaint filed Jan. 14, 2021)] Icon to read more

Health Affairs Blog

Third Circuit Clarifies Sufficiency of Discussions of Social Security Disability Insurance Awards in Adverse Disability Benefit Determinations Under Pre-2018 ERISA Claims Procedure Regulation

"The sufficiency of fiduciary discussions of SSA awards in adverse benefit determinations will continue to be challenged in litigation, particularly with the DOL's 2018 [claims procedures regs]. While Addington's applicability to this (relatively) new regulation is yet to be tested, the decision clarifies that, with respect to claims filed prior to April 2018, a fiduciary's statement that its review 'included vocational and medical assessments that were not considered by the SSA' constitutes a sufficiently detailed explanation for which a fiduciary should not be penalized or prejudiced when litigating in the Third Circuit." [Addington v. Senior Vice President Human Resources Consol Energy, Inc., No. 19-2959 (3d Cir. Dec. 30, 2020)] Icon to read more

Robinson & Cole LLP

Benefits in General

ERISA Exhaustion Defense Still Viable in Some Jurisdictions (PDF)

"A recent decision out of the U.S. District Court for the Northern District of Georgia  ... reminds us that defending ERISA breach of fiduciary duty claims based on a plaintiff's failure to exhaust a plan's administrative remedies is a viable option in some federal court jurisdictions." [Fleming v. Rollins, Inc., No. 19-5732 (N.D. Ga. Nov. 23, 2020)] Icon to read more

Barclay Damon LLP

Selected Discussions
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DCFSA Rollover from 2020 -- Does it Require Offset to 2021 DCFSA Limit?

"Some publications indicate that the DCFSA limit of $5,000 for 2021 needs to be adjusted for any rollover amounts from 2020 (i.e., if P rolls over $2,000 from 2020 DCFSA, their 2021 DCFSA election cannot exceed $3,000). Does anyone agree with this?" Icon to read more

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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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