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Health & Welfare Plans Newsletter

January 10, 2024


[Official Guidance]

Text of HHS-Developed Risk Adjustment Model Algorithm 'Do It Yourself' Software Instructions for the 2023 Benefit Year (PDF)

28 pages; Jan. 9, 2024. "Beginning with the 2023 benefit year, [CMS] finalized removal of the current severity illness factors from the adult models and replaced them with new severity and transplant indicators ... The 2023 benefit year risk adjustment models use the Version 07 HHS-HCC classification, first implemented in the 2021 benefit year[.]" [Also available: Technical Details (XLSX) and 2023 Benefit Year Risk Adjustment SAS Version of HHS-Developed Risk Adjustment Model Algorithm Software (ZIP)]  MORE >>

Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

Health Plan Issues in 2024: A Look Ahead

"The main themes for group health plans in 2024 will be mental health parity, transparency, prescription drugs, and preventive care ... What's expected: [1] New Mental Health Parity rules ... [2] Pharmacy Benefit Manager disclosures and drug coupon guidance ... [3] Final rules on level funded and fixed indemnity plans ... [4] More transparency guidance ... [5] Preventive care litigation and OTC expansion ... [6] Surprise billing adjustments."  MORE >>

Arthur J. Gallagher & Co.

[Guidance Overview]

DOL Proposes Rescinding Prior Rule Relating to Association Health Plans

"The preamble to the Proposed Rule indicates that that the DOL considered revising the rule to strip out the provisions the District Court vacated, but concluded the AHP Rule could not be applied in any meaningful way without those provisions.... [T]he preamble also states the DOL is not aware of any AHPs that currently exist in reliance of the AHP Rule."  MORE >>

Groom Law Group

[Guidance Overview]

Minnesota Issues Guidance Interpreting New Earned Sick and Safe Time Law

"The FAQ Guide explains that only hours worked in Minnesota count toward ESST accrual.... [An] employer cannot require an employee to use ESST for leave, even if the employee misses work for a reason covered by the statute.... [An] employer does not have to pay ESST to employees for a workplace closure unrelated to inclement weather or a state or local public emergency."  MORE >>

Jackson Lewis P.C.

[Guidance Overview]

Updated Rates for San Francisco Paid Parental Leave Ordinance for 2024

"The contribution rate is relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO). The city of San Francisco requires most employers with twenty or more employees worldwide to supplement PFL benefits received by employees to bond with a new child."  MORE >>

Jackson Lewis

Eleventh Circuit Holds FMLA Retaliation Requires 'But-For' Showing

"The Eleventh Circuit's decision acknowledges that it potentially creates a Circuit split over the threshold a plaintiff must meet to unlawful retaliation in a case based on circumstantial evidence. The 'but-for' standard is a higher threshold than the 'motivating factor' standard applied by other Circuits." [Lapham v. Walgreen Co., No. 21-10491 (11th Cir. Dec. 13, 2023)]  MORE >>


Lawsuit Claims UnitedHealthcare Uses AI to Deny Majority of Medicare Advantage Extended-Care Facility Claims

"plaintiffs claim that UnitedHealthcare used its 'nH Predict' AI algorithm to wrongfully deny elderly patients' claims for post-acute care, including stays in skilled nursing-care facilities and in-home care. When patients appeal the denials of coverage to federal administrative law judges, about 90% of the denials are reversed." [Estate of Lokken v. UnitedHealth Group, Inc., No. 23--3514 (D. Minn. complaint filed Nov. 14, 2023)]  MORE >>

Hall Benefits Law

Key Features When Evaluating New Open Enrollment Software

"Beyond streamlining HR processes, [open enrollment] software helps empower HR teams to identify risks and improvements, fostering agility within the organization. The impact benefits employees, too, through user-friendly tools that not only assist in the enrollment process but also help them work towards achieving their health and financial goals.... Here are five key features to look for when comparing your open enrollment software options."  MORE >>


Legislation Proposed to Simplify and Expand Use of HSAs

"[T]he Simplify and Expand Health Savings Accounts Act [HR 6857] ... would help increase use of Health Savings Accounts (HSAs) by: [1] Increasing the maximum contribution for HSAs up to $10,000 for individuals and $20,000 for joint accounts. [2] Allowing HSA funds to be used for Direct Primary Care Arrangements."  MORE >>


Guide for Employers on the Core Components of Obesity Care

"This article focuses on the core components of obesity care and the need for employers to offer a comprehensive obesity benefit (COB) as part of employee insurance coverage."  MORE >>

Journal of Occupational and Environmental Medicine

Menopause: The Next Frontier in Employee Benefits

"The first step to supporting employees experiencing menopause in the workplace is awareness and education.... Because each individual experiences menopause differently, policies such as flexible worksite location and paid time off can allow employees to accommodate the myriad of symptoms that they may experience."  MORE >>

Brown & Brown, Inc.

Benefits in General

[Guidance Overview]

DOL Announces Final Rule on Determining Independent Contractor Status

"The DOL announced the new final rule addressing worker classification under the FLSA. In addition to the six-factor test, the new rule allows for the consideration of additional factors relevant to the overall question of economic dependence, The new rule goes into effect on March 11, 2024."  MORE >>

Ogletree Deakins

[Guidance Overview]

DOL Issues Final Rule on Independent Contractor Definition Under the Fair Labor Standards Act

"The Final Rule jettisons an earlier attempt under the prior Administration to modernize and simplify how to determine who is an employee and who is a contractor by focusing on two core factors. The Final Rule instead purports to return to an ambiguous totality-of-the-circumstances approach, while also placing a thumb on the scale in favor of more workers being deemed employees under the FLSA."  MORE >>

Seyfarth Shaw LLP

Fiduciary Liability: 2023 in Review and a Look Ahead to 2024

"2023 did see two relatively new types of lawsuits, one type being brought against plan sponsors and another type being brought by plans and their sponsors. Four suits brought by one law firm against four different plan sponsors, alleging improper use of forfeited plan funds, may not ultimately result in plaintiff recoveries and a resulting trend. The second potential trend, suits by welfare benefit plans against service providers, doesn't directly implicate fiduciary insurance since the plans are plaintiffs and not defendants."  MORE >>

Willis Towers Watson

Press Releases

DOL Files Suit Against Defunct Maryland Computer Forensics Company for Unremitted Contributions to 401(k) Profit Sharing Plan

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

NFP Appoints Tony Greene President of Its Executive Benefits Division

NFP Corp.

Vitality and Tangelo Launch Partnership to Deliver Food as Medicine Benefits


DOL Files Suit Against Defunct Baltimore Payroll Processing Company for Failure to Remit Employee Contributions to 401(k) Plan

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

Webcasts and Conferences
(Health & Welfare Plans)

SCOTUS Update: When Do Courts Defer to Agency Interpretations of Statutes

January 24, 2024 WEBINAR

Groom Law Group

Last Issue's Most Popular Items

$160k HIPAA Penalty Warns Health Plans and Other Covered Entities to Deliver Timely Access to Protected Health Information

Solutions Law Press

Text of Final DOL Regs: Employee or Independent Contractor Classification Under the Fair Labor Standards Act

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

Can Employers Help Lower Health Care Prices Through Self-Insured Plans?

Health Care Cost Institute

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BenefitsLink® Health & Welfare Plans Newsletter, ISSN no. 1536-9595.

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