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Health & Welfare Plans Newsletter

September 22, 2023

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[Official Guidance]

Draft 2023 Instructions for IRS Form 1095-A: Health Insurance Marketplace Statement (PDF)

Sep. 21, 2023. "Form 1095-A is used to report certain information to the IRS about individuals who enroll in a qualified health plan through the Health Insurance Marketplace. Form 1095-A is also furnished to individuals to allow them to take the premium tax credit, to reconcile the credit on their returns with advance payments of the premium tax credit (advance credit payments), and to file an accurate tax return."  MORE >>

Internal Revenue Service [IRS]

[Guidance Overview]

Agencies Extend Comment Period for MHPAEA Proposed Regs (PDF)

"Plan sponsors, insurers, TPAs, and others with an interest in the mental health parity rules and the NQTL comparative analysis requirement now have additional time in which to submit feedback to the agencies."  MORE >>

Thomson Reuters / EBIA

[Guidance Overview]

Upcoming Deadline icon Gag Clause Attestations Due from Group Health Plans by December 31

"[P]lans [should] reach out to those Vendors that have not proactively notified them that any contracts between their group health plan and the Vendor that were entered into or renewed on or after December 27, 2020 do not violate the CAA's gag clause prohibition. If a Vendor is unwilling to provide such a confirmation, existing contracts will need to be carefully reviewed to ensure that there is no language that would constitute a prohibited gag clause to allow the plan to make an accurate attestation."  MORE >>

Morgan Lewis

[Guidance Overview]

Exceptional Usefulness and Quality icon Dependent Care FSA Limit Challenges

"The dependent care FSA limit presents multiple challenges for non-calendar plan years, short plan years, married employees, mid-year new hires, and W-2 reporting."  MORE >>


[Guidance Overview]

State Paid Family Leave Law Updates

"[Maine has enacted a] Paid Family and Medical Leave Benefits Program with contributions beginning in January 2025, and paid leaves commencing January 1, 2026.... [T]he Minnesota Paid Family Medical Leave bill creates a family and medical leave insurance program ... [B]oth payroll tax deductions and leave benefits will be effective January 1, 2026.... A number of states have passed laws authorizing the creation of a paid family leave insurance product. Unlike state mandated programs (such as the ones described above), these products are voluntary and can be offered by the employer, or in some instances can be purchased on a voluntary basis by employees."  MORE >>


[Guidance Overview]

Georgia Update: Voting Leave, No Sunset on Kin Care

"Georgia employers must provide employees with unpaid time off to vote in any municipal, county, state, or federal political party primary or election, either on one of the days designated for advance in-person voting or on the day of the primary or election.... The second change was to repeal the sunset provision in Georgia's sick leave law ... [which] was scheduled to be repealed, or to 'sunset,' effective July 1 ... Effective May 1, the law was amended to remove the sunset provision, so this law is here to stay."  MORE >>

Constangy, Brooks, Smith & Prophete LLP

Fourth Circuit Rejects Surcharge as Equitable Remedy Under ERISA

"The majority decision appears to foreclose, in the Fourth Circuit, ERISA claims to recover make-whole, monetary relief under section 502(a)(3) and limits monetary relief to unjust enrichment claims to those that can 'trac[e] those unjust gains to 'specifically identified funds that remain in the defendant's possession or against traceable items that the defendant purchased with the funds.' ... The court's overturning of its own precedent and the panel split could foreshadow a petition for rehearing en banc and a petition to the Supreme Court would not be surprising[.]" [Rose v. PSA Airlines, Inc., No. 21-2207 (4th Cir. Sep. 11, 2023)]  MORE >>

Miller & Chevalier

District Court: Guidelines for Mental Health and Medical/Surgical Claims Need Not Be Identical

"[The court] observed that, despite the fact that the plan used separate criteria, it nevertheless defined 'medically necessary' in the same way for both mental health and medical/surgical treatment ... [and that] the guidelines the plan used for applying the medical necessity limitation to mental health treatment and medical/surgical treatment were developed using similar processes. Based on the foregoing, the court determined that the plan's two sets of guidelines were comparable[.]" [L.D. v. United Healthcare Insurance, No. 21-00121 (D. Utah Jul. 28, 2023)]  MORE >>

The Wagner Law Group

U.S. Employers to See Biggest Jump in Healthcare Costs in a Decade in 2024

"Benefit consultants from Mercer, Aon and Willis Towers Watson see employer healthcare costs jumping 5.4% to 8.5% in 2024 due to medical inflation, soaring demand for costly weight-loss drugs and wider availability of high-priced gene therapies.... [O]ver two thirds of employers either do not plan to shift any cost increase to their staff or will pass on less than the expected rise in 2024."  MORE >>

Reuters; free registration may be required

Key Health Plan Cost Trend Drivers for 2024

"[T]he projected annual cost trend for outpatient prescription drugs is expected to be approaching almost 10 percent, the highest rate of all health benefit cost trend estimates.... Per-person cost trend for open-access PPO/POS plans is projected to be 6.8 percent. Specialty drug trend is projected to be 14.5 percent.... [O]ver the last two years, anti-obesity medications and drugs to treat migraines showed the greatest growth."  MORE >>


Ending Pay for PBM Performance: Consequences for Prescription Drug Prices, Utilization, and Government Spending

"Proposed 'delinking' legislation would prohibit Pharmacy Benefit Managers (PBMs) from being remunerated based on the rebates and discounts they negotiate for drug insurance plans serving Medicare beneficiaries. This policy would significantly change drug pricing and utilization and shift billions of dollars annually from patients and taxpayers to drug manufacturers and retail pharmacy companies. Annual federal spending on Medicare Part D premiums would increase $3 billion to $10 billion plus any concomitant increase in Medicare subsidies for out-of-pocket expenses."  MORE >>

National Bureau of Economic Research [NBER]; purchase may be required for full document

California Proposes State-Wide Long Term Care Insurance Program

"[T]he Task Force proposed a progressive payroll tax that may be split between employers and employees, as well as five different program design options that range from $36,000 in supportive LTC benefits to $144,000 in comprehensive long-term care services and support (LTSS)."  MORE >>


Transportation Benefits: A Return-to-Office Perk

"Qualified transportation benefits apply to transportation between an employee's residence and place of employment. Benefits may be funded by the employer and/or by the employee on a pre-tax basis, subject to monthly dollar limits indexed annually. These programs are not subject to ERISA nor the cafeteria plan rules and allow employees to change benefit amounts during the year for any reason."  MORE >>


Benefits in General

Employee Benefits in the United States, March 2023

"Retirement benefits were available to 94 percent of private industry union workers and 68 percent of private industry nonunion workers in March 2023 ... Among private industry workers, paid sick leave was available to 86 percent of union workers and 77 percent of nonunion workers while paid family leave was available to 23 percent of union workers and 27 percent of nonunion workers.... Ninety-six percent of private industry union workers and 69 percent of private industry nonunion workers had access to medical care benefits."  MORE >>

U.S. Bureau of Labor Statistics [BLS]

Employee Benefits Jobs

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Selected New Discussions

Gag Clause Attestation and Changing Coverage

"I can't seem to find any guidance on filing the attestations where the carrier or method of funding has changed since 2020. For example, a plan was self-insured from 2020 through 2022, then became fully insured in 2023. The fully insured carrier's attestation would not cover (in reality, even if it does on paper) the plan's compliance for 2020, 2021, and 2022 when it was self-funded. In that case, if the self-funded TPA is not filing the attestation for the plan sponsor for years before 2023 (as some are not) would the plan sponsor file an additional attestation on its own? Presumably similar circumstances will continue to arise for non-calendar year plans that change carriers/funding methods."

BenefitsLink Message Boards

Webcasts and Conferences
(Health & Welfare Plans)

Open Enrollment Comes but Once a Year


NFP Corp.

Projected 2024 Health Plan Cost Trends

October 5, 2023 WEBINAR


Last Issue's Most Popular Items

Action Steps Health Plans Should Take Now in Response to New DOL Guidance on Mental Health Parity

Foley & Lardner LLP

Code Section 4980D and Violations of the NQTL Analysis Requirement Under the Proposed MHPAEA Regs

McDermott Will & Emery

COBRA Notice Litigation Update: Recent Decision Signals Some Skepticism of Plaintiffs' Claims

Groom Law Group

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

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