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Health & Welfare Plans Newsletter

October 12, 2022

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[Guidance Overview]

IRS Final Regs Adopt 'Family-Friendly' Health Care Affordability Test

"The IRS ... issued final regulations adopting an affordability test for employer-sponsored minimum essential coverage for purposes of the Sec. 36B premium tax credit that takes into consideration the cost of covering an employee's family members in addition to that of the employee. The final regulations adopt largely unchanged the proposed regulations it issued in April 2022[.]"  MORE >>

Journal of Accountancy


EnsuredCompliance® Plan Documents & Non-Discrimination Testing

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[Guidance Overview]

IRS Finalizes 'Family Glitch' Regs Ahead of 2023 Open Enrollment Period

"The final rule means that family members who are offered unaffordable job-based family coverage will be newly eligible for subsidized marketplace coverage. Though not all of the newly eligible are expected to do so, the final rule ensures that eligible family members -- primarily children and women -- have the option of enrolling in affordable marketplace coverage. Federal officials expect the number of individuals with subsidized marketplace coverage to increase by about 1 million people."  MORE >>

Health Affairs Forefront

[Guidance Overview]

Final Rules and FAQs Issued for Federal IDR Process

"Plan sponsors with fully insured benefits can rest easy because insurance carriers will likely handle the details behind the [No Surprises Act (NSA)] and any provider payment disputes. However, if you are a plan sponsor of self-funded benefits, then you should reach out to your third-party-administrator to ensure that there is a process in place to handle any facility or provider payment disputes within the NSA framework. Plan documents and SPDs will need to be updated as well."  MORE >>

Assured Partners

Can Sending a Message via Facebook Messenger Constitutes a FMLA Leave Request? Maybe.

"Roberts and Slater had a history of communicating about work issues using Facebook Messenger. More particularly, Roberts and Slater had routinely communicated about his ongoing health condition, absences, and return to work via messaging, and neither Slater nor anyone else at Gestamp had objected to that method in the past.... Message to employers: Have a written policy setting out the procedure employees must follow when requesting leave or reporting absences." [Roberts v. Gestamp West Virginia, LLC, No. 20-2202 (4th Cir. Aug. 15, 2022)]  MORE >>

McAfee & Taft

Tenth Circuit Finds Termination of Long-Term Disability Benefits Justified by Video Surveillance

"[T]he court agreed with Reliance Standard's initial decision that the surveillance videos justify terminating benefits ... The court explained that Reliance Standard did not need expert medical testimony to interpret the surveillance videos.... 'The relevance of that evidence to her disability status is beyond question.' The court also found that Reliance Standard did not have to state what jobs it believes Gielissen can perform given her abilities shown in the surveillance videos." [Gielissen v. Reliance Standard Life Ins. Co., No. 21-1377 (10th Cir. Oct. 7, 2022)]  MORE >>

Roberts Disability Law

Sixth Circuit Finds Denial of Long-Term Disability Benefits Supported by Lack of Objective Medical Evidence

"The court rejected Eberle's argument that the reviewers made improper credibility determinations by discounting her complaints of pain. Instead, the court explained the reviewers focused on the objective evidence, as required by the Plan. The court found that the medical reviews constituted substantial evidence supporting Prudential's claim decision." [Eberle v. Am. Elec. Power Sys. Long-Term Disability Plan, No. 21-4224 (6th Cir. Oct. 7, 2022)]  MORE >>

Roberts Disability Law

First Circuit Rules That Life Insurer Had Fiduciary Duty to Make Timely Coverage Determination

"In May of this year, ... the Eighth Circuit discussed the system by which employers and insurers divide the duties of administering employee life insurance coverage. ... In particular, the Eighth Circuit described the arrangement in [that case] as 'a haphazard system of ships passing in the night.' Until that system changes, we will see more cases like this week's [First Circuit decision,] which has a similar fact pattern and a similar resolution." [Shields v. United of Omaha Life Ins. Co., No. 21-1290 (1st Cir. Oct. 4, 2022)]  MORE >>

Kantor & Kantor LLC

Alert (High Risk Issue) icon First Circuit: Insurer Must Make 'Reasonably Proximate' Coverage Determinations

"The First Circuit ruled that while the employer was Named Fiduciary and Plan Administrator, the insurer is a 'functional fiduciary' because it had discretionary authority with respect to eligibility determinations.... As a result, such an insurer has a fiduciary duty to those employees to make eligibility determinations for each employee from whom the insurer accepts premium payments. According to the First Circuit, this decision must be reasonably proximate to the acceptance of those premiums." [Shields v. United of Omaha Life Ins. Co., No. 21-1290 (1st Cir. Oct. 4, 2022)]  MORE >>

The Wagner Law Group

Employers Face Tricky Benefits Year Amid Inflation, Tight Labor Market

"Companies anticipate a median 7% increase in medical costs for next year but know passing that on to employees could be disastrous in a tight labor market ... The inflationary pressure is accelerating the adoption of apps, telehealth and other digital tools that streamline the process of connecting patients with providers ... Employers and health insurers are encouraging workers to catch up on screenings, annual physicals and immunizations post-pandemic, aware that the cost of deferred care could exacerbate an already tough cost environment."  MORE >>


Can State Prescription Drug Affordability Boards Address High-Cost Prices?

"Policymakers hope that granting these new regulatory bodies varying authorities -- like capping payments on drug spending by states and increasing transparency -- can help make medicines more affordable for consumers and release pressure on state health care budgets. However, their effectiveness remains an open question[.]"  MORE >>

The Commonwealth Fund

U.S. Department of Education Releases New Guidance on Pregnancy and Related Conditions

"[T]he OCR fact resource is designed to remind school communities (including students, faculty, families, and educators) that Title IX protects students and employees from discrimination based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from pregnancy. The resource also discusses issues such as discrimination, exclusion, medical and other benefits and services, and leave policies."  MORE >>

Jackson Lewis P.C.

CMS Explores Establishment of a National Directory of Healthcare Providers

"CMS has sent out a request for information on the feasibility of establishing a government-run national directory of healthcare providers and services as a means to improve care access, reduce clinician burden and support interoperability.... A national directory that's developed and maintained by CMS ... 'could serve as a 'centralized data hub' for directory and digital contact information containing the most accurate, up-to-date and validated data in a publicly accessible index,' the RFI states."  MORE >>

Healthcare Financial Management Association [HFMA]; free registration required


Medicare Advantage Is a 'Cash Monster' Absconding with Billions

"The New York Times published a well-researched, clearly-presented, and hard-hitting article about the Medicare Advantage diagnostic upcoding money machine.... Eight of the 10 biggest Medicare Advantage insurers -- representing more than two-thirds of the market -- have submitted inflated bills, according to the federal audits.... Another estimate ... suggested the overpayments in 2020 were double that, more than $25 billion.... A study from the Kaiser Family Foundation ... found the companies typically earn twice as much gross profit from their Medicare Advantage plans as from other types of insurance."  MORE >>

Physicians for a National Health Program [PNHP]

Benefits in General

[Guidance Overview]

IRS Provides Hurricane Ian Disaster Relief and Extension for CARES Amendments

"The IRS has extended to February 15, 2023, a variety of tax deadlines for taxpayers affected by the hurricanes.... Given the timing of the disaster, this extension is vital for Form 5500 filers. Very importantly, the due date of Form 5500 is specifically extended. This extension is not limited to businesses in the affected states. It also applies to 'Taxpayers who are unable on a timely basis to obtain information necessary for completing the forms from a bank, insurance company, or any other service provider because such service provider's operations are located in a covered disaster area."  MORE >>

Ferenczy Benefits Law Center

[Guidance Overview]

DOL Proposed Independent Contractor Rule May Have Implications for Individual Agents and Brokers

"The new proposal would require that workers be considered a company's employees, who are entitled to more benefits and legal protections than contractors, when they are 'economically dependent' on the company ... The DOL said it will consider workers' opportunity for profit or loss, the permanency of their jobs, and the degree of control a company exercises over a worker, among other factors. The changes could leave employers responsible for complying with laws relating to FICA, health care, retirement plans and federal regulations that protect employees."  MORE >>

[Guidance Overview]

What's Old Is New Again: DOL Proposes a Sort-of-New Employee v. Independent Contractor Rule

"[T]he proposed rule would codify an Administrator's Interpretation that was issued by the Obama Administration DOL in 2015 and that was rescinded by the Trump Administration DOL in 2017.... In addition to the WHD proposed rule, the IRS has its own set of rules.... Some states, like Michigan, have rules too.... The state of California enacted law AB 5 in 2019 that presumes an individual is an employee unless the hiring entity can prove three specific elements."  MORE >>

Warner Norcross & Judd LLP

Is It Time for ERISA to Be Amended to Cover Cyber Crimes? (PDF)

"[F]iduciaries and persons handling [plan] funds must be bonded to protect against fraud and dishonesty. This article will discuss this required ERISA bond and the interplay of other types of insurance coverage, and conclude with a recommendation that Congress amend ERISA to require insurance to address cyber crimes."  MORE >>

Fox Rothschild LLP

Employee Benefits Jobs

View job as Non-Qualified Client Service Manager
            for Newport, an Ascensus Company

Non-Qualified Client Service Manager

Newport, an Ascensus Company


View job as Non-Qualified Client Service Manager for Newport, an Ascensus Company

Press Releases

Survey Reveals Employees Cutting Spending on Wellness & Necessary Healthcare Impacting 2023 Benefits Decisions


Dechert Expands its Transactional Capabilities with New York-Based ERISA Partner, John Schuch

Dechert LLP

Aon Pooled Employer Plan Reaches $1 Billion in U.S. Plan Assets and Commitments

Aon plc

Webcasts and Conferences
(Health & Welfare Plans)

Preparing for Year-End and a Look Ahead for Plan Sponsors: Health and Welfare

October 13, 2022 WEBCAST

Groom Law Group

Understanding the New DOL Independent Contractor and Gig Economy Guidance

October 18, 2022 WEBCAST


Preparing for Year-End and a Look Ahead for Plan Sponsors: Retirement

October 20, 2022 WEBCAST

Groom Law Group

Last Issue's Most Popular Items

Text of IRS Notice 2022-41: Additional Permitted Election Changes for Health Coverage Under Section 125 Cafeteria Plans (PDF)

Internal Revenue Service [IRS]

Text of IRS Final Regs: Affordability of Employer Coverage for Family Members of Employees

Internal Revenue Service [IRS]

DOL Announces Proposed Rule on Classifying Employees, Independent Contractors; Seeks to Return to Longstanding Interpretation

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

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

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