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Health & Welfare Plans Newsletter

June 2, 2023

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[Guidance Overview]

Four Key (and Surprising) Points for Navigating FMLA Leave

"[1] Employers' more generous leave policies do not relieve them of their FMLA leave obligations.... [2] Prior temporary employment may count toward FMLA eligibility.... [3] Employers may not rely on 'undue hardship' to deny FMLA leave.... [4] 'Maternity leave' is an ambiguous term."  MORE >>

Ogletree Deakins

[Guidance Overview]

Be Careful When Calculating FMLA Leave for a Week That Includes a Holiday

"A new [DOL opinion letter] clarifies how ... to calculate [FMLA] leave ... when it's taken during a week that includes a holiday.... If a holiday falls during a week when an employee takes a full workweek of FMLA leave, then a full week is counted as FMLA leave. However, if a holiday falls during a week when an employee works some hours and takes some FMLA leave, the holiday is not counted as FMLA leave, unless the employee was normally scheduled and expected to work on that holiday."  MORE >>

Society for Human Resource Management [SHRM]; membership may be required to view article

[Guidance Overview]

DOL Opinion Letter Sheds Light on Calculating FMLA Leave During a Holiday Week

"In a highly technical opinion letter ... the [DOL] clarified how to calculate FMLA leave usage when an employee takes intermittent leave during a holiday week.... [It is] critical to understand that the term 'workweek,' as defined under the FMLA, is the employee's normal schedule (hours/days per week) prior to the start of FMLA leave. "  MORE >>

FMLA Insights

Tenth Circuit Addresses Insurer Accountability for Claim Denials

"The message the Tenth Circuit's ruling sends to insurers ... clearly establishes that health benefit administrators are required to acknowledge and address the evidence submitted by claimants. A decision will not be upheld simply because it is supported by a doctor's opinion. Instead, insurers must engage with the opinions of the treating doctors and explain their basis for any disagreement." [D.K. v. United Behavioral Health, No. 21-4088 (10th Cir. May 15, 2023)]  MORE >>

DeBofsky Law

Seventh Circuit Affirms Plan Sponsor’s Discretion for Severance Benefits

"The decision affirms that, if the plan so provides, discretionary eligibility criteria for severance benefits is permissible under ERISA. However, plan sponsors should be aware that the exercise of discretion in certain ways can cause issues under other federal laws intended to protect against discrimination ... [and] in the context of a voluntary severance plan, the exercise of discretion with respect to eligibility could negate the voluntary nature of the plan." [Carlson v. Northrop Grumman Severance Plan & Northrop Grumman Corp., No. 22-1764 (7th Cir. May 8, 2023)]  MORE >>

Groom Law Group

Eleventh Circuit Finds Florida Surprise Billing Law Subject to Jury's Interpretation

"Florida's surprise billing law ... requires insurers to pay the 'usual and customary provider charges for similar services in the community where the services were provided' for out-of-network emergency care. The hospitals ... asserted that Cigna underpaid them for out-of-network emergency services, when their own data showed they normally receive five times Cigna's allowance.... The district court agreed with Cigna, but ... the Eleventh Circuit remanded the case with instructions that a jury must decide the 'community' rates." [North Shore Med. Ctr., Inc. v. Cigna Health & Life Ins. Co., No. 22-10514 (11th Cir., May 25, 2023)]  MORE >>

Miller & Chevalier

Maximize Employer-Sponsored Health Plan Savings with Reference-Based Pricing

"Transitioning to an RBP plan can be quite disruptive to plan members and administrators because it represents a significant departure from traditional PPO plans. Some key considerations for those considering an RBP plan are outlined [in this article]."  MORE >>

OneDigital

Spending Among Group Plan Enrollees With Multiple Health Conditions: A Look at High-Cost Claimants in 2021 (PDF)

"An examination of the health care claims of 8.6 million group plan enrollees in 2021 revealed that over 80 percent of top spenders had at least 1 of 5 chronic health conditions -- heart disease, respiratory conditions, musculoskeletal conditions, skin disorders, and nervous system conditions. This Fast Fact reviews the spending of people with one or more of these chronic conditions."  MORE >>

Employee Benefit Research Institute [EBRI]

Out-of-Pocket Spending Among ESI Enrollees Diagnosed with Cancer

"[A]verage total medical spending increased in the quarter leading up to the cancer diagnosis, peaked in the quarter including and following diagnosis and then declined, though post-diagnosis spending remained higher than pre-diagnosis spending throughout the year."  MORE >>

Health Care Cost Institute

'Long Haul' COVID-19 Claims Under a Long-Term Disability Policy (PDF)

"It is imperative that applications for long-term disability due to long-haul COVID-19 ... be scrutinized to determine if a claimant continues to be residually or totally disabled.... Engaging medical experts to review a claimant's medical records will be vital to ensuring that only legitimate claims are paid. It is expected that courts are likely to undertake a fact-based analysis, and as scientists begin better understand the effects of long-haul COVID-19, it is expected that there may be guidelines for diagnosis simi- lar to chronic fatigue."  MORE >>

Stradley Ronon, via Employee Benefit Plan Review

Time for a Commercial Break: Financial Impact of Certain Health Plan Business Practices on Providers (PDF)

16 pages. "Conventional wisdom has been that treating more patients with commercial, or private, health insurance was seen as a good thing from a net revenue point of view ... [D]ata shows that commercial payors reimburse providers at a higher amount on a per-case basis compared with Medicare ... In fact, commercial payors take the longest to pay, require providers to jump through more administrative hoops to get paid, and delay payments to providers via claim denials at a higher frequency than government payors."  MORE >>

Crowe

[Opinion]

Using ERISA as a Sword, Not a Shield: Part 3

"[A] more vigorous assertion of ERISA fiduciary obligations, either by employee-backed litigation or more thoughtful federal regulation (not always an oxymoron) could provide an independent tool to bolster healthcare price transparency that matters and strengthen the combined force of pro-transparency pressure. At a minimum, it could motivate some employers to contract with intermediaries (including better-structured association health plans, independent coverage health reimbursement arrangements, stop-loss insurers, and pharmaceutical benefits managers) that are more accountable to the employee beneficiaries of self-insured plans."  MORE >>

American Enterprise Institute

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Press Releases

NCEO Announces 'The Download,' a Monthly ESOP Communication Resource

National Center for Employee Ownership [NCEO]

Milliman Named 'Best in Class' Defined Contribution Recordkeeper

Milliman

Webcasts and Conferences
(Health & Welfare Plans)

Arbitration of ERISA Claims: Update and Latest Trends

July 13, 2023 WEBINAR

American Bar Association Joint Committee on Employee Benefits [JCEB]

Last Issue's Most Popular Items

Can the HIPAA Privacy and Security Official Position Be Held by a Third Party?

Thomson Reuters / EBIA

Can Your Plan Clear Mental Health Parity Compliance Hurdles?

International Foundation of Employee Benefit Plans [IFEBP]

64% of Women Want Menopause-Specific Benefits

Merrill Lynch

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

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