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Health & Welfare Plans Newsletter

June 16, 2021


[Guidance Overview]

DOL Has Made CAA's Mental Health Parity Documentation a Top Enforcement Priority

"Analyses should explain whether any factors used in creating a NQTL were given more weight than others and the reason(s) for doing so ... [and] must include the precise definitions used and any supporting sources. If the application of the NQTL turns on specific decisions in administration of the benefits, the plan or issuer should identify the nature of the decisions, the decision maker(s), the timing of the decisions, and the qualifications of the decision maker(s)."  MORE >>

Foley & Lardner LLP

[Guidance Overview]

Are Your COBRA Notices Sufficient to Avert a Costly Challenge?

"A spate of recent litigation reminds us that failure to include required information in COBRA election notices may expose the plan sponsor and the plan administrator to claims from participants and beneficiaries. Further, if the information included in COBRA election notices is likely to confuse participants and beneficiaries, there may be potential liability for failure to provide a notice written in a manner calculated to be understood by the average plan participant."  MORE >>

Benefits BCLP

[Guidance Overview]

Massachusetts Enacts Temporary COVID-19 Emergency Paid Sick Leave Law

"[O]nly employees whose primary place of employment is in Massachusetts are eligible for leave under the act. An employee's 'primary place of employment' means the worksite or physical location where the employee spent the greatest percentage of work hours between the dates of January 1, 2020, and April 30, 2021; temporary telecommuting arrangements entered into during this period should not factor into this determination."  MORE >>

Duane Morris LLP

[Guidance Overview]

Massachusetts Uniquely Funds Its Newly Required Emergency Paid Sick Leave

"While all Massachusetts employers – regardless of size – must provide all employees with EPSL, Massachusetts offers an employer reimbursement of up to $850 per week per employee.... [E]mployers can choose to pay employees their regular wages that exceed the law’s cap of $850 per week, but reimbursement is limited to $850 per week."  MORE >>


Can PBMs No Longer Rely on ERISA Preemption to Avoid Certain State Laws?

"Recent court trends suggest that preemption under [ERISA] may not apply to certain state laws that regulate pharmacy benefit managers (PBMs), including state laws governing Maximum Allowable Cost (MAC), which is essentially the process used by a PBM to determine in-network pharmacy reimbursement rates for generic drugs and multi-source brands.... [An] interactive map ... summarizes which states currently have a MAC law in place."  MORE >>

Foley & Lardner LLP

Amazon Opens Employee Health Clinics in Detroit

"Amazon has opened three new health centers in Detroit for its employees through a partnership with Crossover Health, a medical group that works with self-insured employers[.]"  MORE >>

Becker's Hospital Review

Alert (High Risk Issue) icon Colorado Supreme Court Bans 'Use-It or Lose-It' Vacation Policies

"[The Colorado] Supreme Court overturned both the trial court and the lower appellate court to hold that the Colorado Wage Claim Act (CWCA) prohibits the forfeiture of earned vacation pay at the end of employment, even when an employment agreement or policy provides that accrued vacation is not paid out upon separation." [Nieto v. Clark's Market, No. 19SC553 (Col. Jun. 14, 2021)]  MORE >>

Husch Blackwell

Oregon Looks to Provide Parity for Telehealth

"The Bill expands coverage of and reimbursement for telehealth services in Oregon, promoting equitable and safe access to care.... The Bill went into effect on June 1, 2021, continuing a recent trend among states to offer parity for telehealth, encouraging the use of telehealth for providing access to treatment services for its residents."  MORE >>

Sheppard Mullin


Telemedicine Compacts Expand Access to Health Care

"Telemedicine licensure compacts allow licensed health care practitioners to see patients in other states that are also members of the same compact. By joining these compacts, states give their residents needed access to primary care, mental and behavioral health, and other providers.... ERIC is encouraging lawmakers to enact a permanent solution to allow inter-state medical practice. Until then, there are multiple compacts physicians and states can join."  MORE >>

The ERISA Industry Committee [ERIC]

Benefits in General

COVID-19, Cybersecurity Create New Litigation Risks for Benefit Plan Fiduciaries and Service Providers

"As offices moved to remote work in 2020, the risk for cyberhacks heavily increased -- as did the possibility that litigation that could follow.... [E]mployers should be wary of potential COVID-19 litigation that involves financial distress from employees due to job loss, cybersecurity management and data privacy, business interruptions or continuities, and relations within the workforce."  MORE >>

PLANSPONSOR; free registration may be required

The Importance of Plan Documentation

"[E]ven if plan sponsors are providing sufficient oversight, lack of documentation of the oversight is arguably equally as severe as no oversight at all. Here are some common fiduciary responsibilities and how you should document them. [1] Review of the report on service organization's controls ... [2] Documentation of the plan within minutes ... [3] Retention of salary reduction agreements ... [4] Monitoring of inactive accounts."  MORE >>

Berry, Dunn, McNeil & Parker, LLC

Selected New Discussions

Retiree HRA VEBA Can Have Post-Tax Employee Contributions?

"I'm fairly new to the world of VEBAs, but my understanding has always been that in order to have an HRA, there can be no employee contributions. Because a VEBA is just the funding vehicle, how can an association have a post-retirement HRA that is funded by voluntary post-tax employee contributions with a small employer match? I have an IRS approval letter for the VEBA where the plan accurately described itself as voluntary post-tax with a death benefit, but I'm perplexed as to how/why the IRS granted approval to begin with. What am I missing?"

BenefitsLink Message Boards

Press Releases

John Hancock Retirement Introduces New Retirement App for All Participants

John Hancock

TRI-AD Awarded Best & Brightest in the Nation for 2021


Last Issue's Most Popular Items

Employer-Provided Health Coverage: State-By-State 2021 (PDF)

America's Health Insurance Plans [AHIP]

Text of EBSA Information Letter 06-14-2021: Upon Claimant's Request, Plan Fiduciary Must Provide Copy of Audio Recording and Transcript of a Telephone Conversation

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

IRS Clarifies 'Involuntary Termination' for Purposes of COBRA Subsidy Under ARPA

Buchanan Ingersoll & Rooney PC

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587.

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