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Moving from Theory to Implementation of Healthcare Reform: An Overview for Employers of New Guidance, Strategies and Case Studies (PDF)

18 pages. Slides from a presentation. Fabulous examples. Excerpt: ACA changes impact notices typically distributed with open enrollment materials. 1. Notice of Special Enrollment Rights. 2. General Notice of Preexisting Condition Exclusion. [An MP3 recording of the presentation is available at http://www.vorys.com/healthcarereform.]'(Maybe say in the excerpt that an MP3 recording is available at http://www.vorys.com/healthcarereform )

Insurance Agents Held to Be Employees for ERISA Purposes

"Agents who are supposedly independent are not like franchisees who must follow all of the franchisor's rules.... Insurance companies may also want to consider: [1] Carving out agents they deem to be independent contractors from ERISA plans; [2] Not referring to agents as employees in training and personnel manuals; [3] Adding a term to agents' agreements expressly stating when the agreement will be renewable; [4] Allowing the agents to control their book of business, or, at the very least, having discretion in selling their agency and in writing business for other insurance carriers."

The Fiduciary Duty to Locate Missing Participants

"The DOL has only published guidance outlining the procedures that a terminating retirement plan should follow to locate missing participants, and that ongoing plans should follow before making automatic rollover distributions to an IRA for participants who are owed small-sums (between $1,000 and $5,000). Despite this lack of guidance, the DOL has been asserting in recent audits that a retirement plan's failure to identify and locate a missing participant is a breach of fiduciary duty ... even when the retirement plan has followed its procedures and has relatively few missing participants."

New York's Paid Family Leave Law Becomes Effective January 2018

"An employer may apply to the chair of the New York State Workers' Compensation Board for approval as a self-insured employer by September 30, 2017. To be approved as a self-insured employer, an employer must: [1] provide PFL benefits at least as favorable as required by the PFLL; [2] demonstrate the ability to make PFL payments; [3] submit certain financial information; [4] file with the chair an agreement to pay disability and PFL benefits; [5] assume all liability for PFL benefits that exceed the funds collected in excess of the maximum contribution amount; [6] post a surety bond; [7] allow the chair to examine its operations and records; and [8] file annual reports."

7,000 Insurance Agents Held to Be Employees for ERISA Purposes

"[T]he Court concluded that the evidence supported both sides but that the amount of control American Family exercised (or could have exercised) tipped the scales in favor of employee status. At the same time, the Court noted that prior case law has been 'nearly unanimous' in finding insurance agents to be independent contractors and that the resolution of damages will be 'unusually complicated.' " [Jammal v. American Family Ins. Group, No. 13-437 (N.D. Ohio Aug. 1, 2017)]

More Uncertainty for Wellness Programs

"The judge in a recent court case ordered the [EEOC] to develop the administrative record supporting rewards of up to 30% of the cost of health coverage for participation in wellness programs. If the EEOC is unable to defend the size of the reward, the EEOC may have to change its wellness program rules.... Now employers are left to wonder what the EEOC will do, when the EEOC will do it, and how to design their wellness programs in the interim.... The IRS and DOL wellness program rules remain in effect. WARNING: The DOL is auditing compliance and will follow up on participant complaints."

Mental Health Parity: Can You Show That Your Health Plan Complies?

"On June 16, 2017, the [DOL] published a draft of a model form that an employee (or his or her representative) could use to request documentation of compliance with the [MHPAEA]. If an employer receives this type of request (even if not on the DOL's model form), it has just 30 days to respond. If an employer doesn't respond in 30 days, penalties of up to $110 per day may apply."

Court Faults Employer for Failing to Provide Accurate Information Regarding Life Insurance Conversion

"The judge faulted WellStar for not understanding its life insurance policy and incorrectly assuming that its former employee was still covered.... The court considered the fact that WellStar did not follow its own written procedures in determining it had breached its duty to the plaintiff." [Erwood v. Life Ins. Co. of North America and Wellstar Health System, Inc. Group Life Ins. Program, No. 14-1284 (W.D. Penn. Apr. 13, 2017)]

HHS Releases Final Rule on ACA Marketplace Stabilization

"One of the main provisions of the final rule is the authority for insurers to sell less-generous policies that will feature lower premiums, but higher deductibles. Under this new provision, insurers can now sell policies that are four percentage points below ACA standards, compared with two percentage points under current regulations. Another provision, aimed at creating a more stable pool of enrollees, will reduce the current open enrollment period in half."

Are Individually Designed Retirement Plans an Endangered Species?

"As a result of the IRS' changes to its determination letter program, [plan sponsors should]: [1] Ensure that an annual review is performed for all retirement plans to confirm compliance with the IRS' Required Amendment List and Operational Compliance List. Document the annual review in the plan administrator minutes; amend the plans as required, and conduct operational audits to document your diligence.... [2] Carefully scrutinize all proposed amendments to the plan for potential issues. You will no longer be able to clean up problematic language during the determination letter process.... [3] Consider whether a pre-approved plan can satisfy the plan's design and legal requirements."