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Tracking Full-Time Employees for Employer Play or Pay: Look-Back Measurement Under Final IRS Regulations
March 6, 2014 WEBCAST
(Thomson Reuters / EBIA)

Roadmap to Compliance with the Employer Shared Responsibility Provisions under the Affordable Care Act
March 25, 2014 WEBCAST
(ABA Joint Committee on Employee Benefits)

Roth Contributions: New Opportunities and Pitfalls
March 27, 2014 WEBCAST
(American Society of Pension Professionals & Actuaries (ASPPA))

Claims Under the Affordable Care Act: Understanding Liability in a Whole New World
March 27, 2014 WEBCAST
(ABA Joint Committee on Employee Benefits)

30th International Congress of Actuaries
March 30, 2014 in DC
(International Actuarial Association)

Top Ten Most Common Section 409A Pitfalls
April 3, 2014 WEBCAST
(King & Spalding LLP)

HIPAA Compliance: Are You Ready if a Breach Occurs? Privacy, Security, HITECH, Record Retention and Preparedness for a Compliance Audit
April 29, 2014 WEBCAST
(ABA Joint Committee on Employee Benefits)

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Text of Agencies' Request for Information Regarding Healthcare Provider Non-Discrimination
"Section 2706(a) of the Public Health Service Act ... as added by [the ACA] ... states that a 'group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider's license or certification under applicable state law.' ... [An April 2013] FAQ states that, for this purpose, to the extent an item or service is a covered benefit under the plan or coverage, and consistent with reasonable medical management techniques specified under the plan with respect to the frequency, method, treatment or setting for an item or service, a plan or issuer shall not discriminate based on a provider's license or certification, to the extent the provider is acting within the scope of the provider's license or certification under applicable state law. The FAQ also states that section 2706(a) ... does not require plans or issuers to accept all types of providers into a network and also does not govern provider reimbursement rates, which may be subject to quality, performance, or market standards and considerations.... [T]he Departments are requesting comments on all aspects of the interpretation of section 2706(a) of the PHS Act. This includes but is not limited to comments on access, costs, other federal and state laws, and feasibility." (Internal Revenue Service [IRS]; Employee Benefits Security Administration [EBSA]; Centers for Medicare & Medicaid Services [CMS])

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Text of CMS Final Rule for the Basic Health Program
154 pages. Excerpt: "This final rule establishes the Basic Health Program (BHP), as required by section 1331 of the [ACA]. The BHP provides states the flexibility to establish a health benefits coverage program for low-income individuals who would otherwise be eligible to purchase coverage through the Affordable Insurance Exchange ... This final rule also sets forth a framework for BHP eligibility and enrollment, benefits, delivery of health care services, transfer of funds to participating states, and federal oversight. Additionally, this final rule amends another rule issued by [HHS] in order to clarify the applicability of that rule to the BHP." (Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services)

Text of CMS Final Rule for Federal Funding of the Basic Health Program; Methodology for 2015
"This document provides the methodology and data sources to determine the federal payment amounts made to states in program year 2015 that elect to establish a Basic Health Program ... to offer health benefits coverage to low-income individuals otherwise eligible to purchase coverage through Affordable Insurance Exchanges." (Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services)

Use Care Before Choosing 'Skinny Plan' Option to Address Employer Shared Responsibility Requirements
"While a properly implemented 'skinny plan' option may work for many employers with self-insured health plans, getting past the Code Section 4890H(a) employer shared responsibility payment doesn't necessarily mean that the employer won't face liability under Code Section 4980H.... [A]n improperly designed skinny plan ... could trigger much greater liability than the penalty that the employer hoped to avoid by using the skinny plan." (Solutions Law Press)

Don't Forget: ACA Requirements for Emergency Room Coverage
"The rules do not require a plan to cover emergency services, but provide that if a plan covers any benefits with respect to services in a hospital emergency department, then coverage for emergency services must be provided: [1] without the need for prior authorization, even if the services are out-of-network; [2] without regard to whether the provider of services is an in-network provider; [3] if the services are performed out-of-network, without imposing any administrative requirement or limitation on coverage that is more restrictive for out-of-network than in-network services ... [4] without regard to any other term or condition of coverage[.]" (Faegre Baker Daniels)

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The Newton Strategy Group is engaging brokers/consultants serving benefits administration and HR managers involved in making selections around eligibility and/or enrollment vendors. Respondents familiar with third party SaaS software providers (e.g. Benefitfocus, bswift) are especially needed. Respondents who complete the study will receive a $50 Amazon gift card. Click here .

Allowing Noncompliant Health Insurance Policies; Benefits and Payment Parameters Rule (Part 3: IRS Reporting Rules)
"One of the most difficult issues addressed by the rule is the requirement that reporting entities report the Social Security numbers of covered individuals and their dependents. Insurers do not necessarily collect this information, and individuals may be reluctant to provide their Social Security numbers to insurers.... The final rule allows reporting entities to report a birth date instead of a Social Security number, but only if the entity was unable to obtain a Social Security number after making reasonable efforts to secure it." (Timothy Jost in Health Affairs Blog)

Allowing Noncompliant Health Insurance Policies; Benefits and Payment Parameters Rule (Part 2)
"The final rule contains a number of provisions affecting the small employer or SHOP exchange. Employers in the federally facilitated SHOP exchange may either offer a single stand-alone dental plan or permit their employees to choose any stand-alone dental plan offered at a particular actuarial value level by the FF-SHOP. The rule authorizes HHS to establish a timeframe for employers to pay SHOP premiums and provides a formula for prorating premiums for coverage lasting less than a month." (Timothy Jost in Health Affairs Blog)

First Circuit: Statute of Limitations Began When Lower-Than-Demanded Monthly Payments Started, and Did Not Apply Separately for Each Payment
"Ordinarily, a cause of action for ERISA benefits accrues when a fiduciary denies a participant benefits. In this case, the Court continued, MetLife allowed Riley's LTD claim, but with its first check for $50, MetLife denied his explicit assertion that any award of that sum was inaccurate. This was not a complete repudiation or a formal denial of all LTD benefits. But it was a clear repudiation of Riley's assertion that he was entitled to more than the amount MetLife actually awarded. The Court concluded that this repudiation, of which Riley was aware, caused Riley's cause of action to accrue, thereby causing the statute of limitations to start to run.... The Court [also] concluded that here, when the act complained of is a one-time miscalculation, the statute of limitations does not start separately for each payment." [ Riley v. Metropolitan Life Insurance Company , No. 13-2166 (1st Cir. Mar. 4, 2014)] (Cary Kane ERISA Lawyer Blog)

Tax Court Allows Deductions for Some Unreimbursed Travel Expenses During Temporary Employment
"This case was brought under special procedures for small tax cases and cannot be cited or treated as precedent for any other case.... [It affirms] that temporary employment that is intended to last for a period of less than one year -- like a similarly limited temporary assignment from a regular job -- does not cause a person's 'tax home' to change, and thus may permit business travel expense deductions for properly substantiated expenses. The case also highlights the substantiation requirements for travel expenses, which also apply to employers' accountable plan reimbursements." [ Snellman v. Comm'r , T.C. Summ. Op. 2014-10 (Feb. 3, 2014)] (Thomson Reuters / EBIA)

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Interaction of the Affordable Care Act with Other Laws

This March 17 webinar will discuss strategies, potential traps for the unwary, and best practices for integrating rules under the ACA with other laws. Special BenefitsLink discount .

HIPAA Audits: Three Key Topics
"Risk assessments, encryption of end-user devices and contingency planning are likely to be among the key areas that auditors will examine ... [The U.S. Department of Health and Human Services' Office for Civil Rights (OCR)] has had staff working on developing protocols for the audit program for the last 18 months since the 2012 pilot audit program wrapped up ... The audit program will be carried out by staff from OCR's central and regional office[.]" (HealthcareInfoSecurity.com)

Two-Year Extension of CMS Transition Policy Allowing Renewal of Certain Noncompliant Policies and Hardship Exemptions
"It is important to note that this guidance gives individuals an exemption from the individual mandate penalty, but does not make them eligible for a premium tax credit for their noncompliant policies. It comes on the heels of a separate CMS Bulletin announcing that, under certain circumstances, retroactive premium tax credits (i.e., subsidies) will be available to individuals who were unable to enroll in a qualified health plan through an Exchange during the 2014 initial enrollment period ... Although neither of these bulletins currently has direct application for many employers, continued availability of subsidies for coverage purchased outside an Exchange could raise new issues if extended into periods when employers become subject to shared responsibility penalties -- which are specifically only triggered by full-time employees who receive a subsidy through an Exchange." (Thomson Reuters / EBIA)

Impact of Allowing Additional Two Years for Noncompliant Insurance Policies Likely to Be Small
"Some actuaries of major health plans ... did view the administration's policy as potentially moving healthy people out of those pools and increasing uncertainty about the health composition of those risk pools in 2014. But others expected the decision to have a limited effect, given that only 28 states are allowing the practice. RAND estimates that the administration's policy might increase 2015 premiums by 1 percent." (The Commonwealth Fund)

Five Takeaways from Gallup's Poll on the Uninsured
"The Gallup poll doesn't fully answer how many have signed up because of the law, but it shows that the rate of people who say they're primarily covered by Medicaid increased from 6.6 percent to 7.4 percent since the end of 2013.... The rate of people who say they're covered by a current or former employer dropped from 45.5 percent to 43.4 percent from the end of 2013. Meanwhile, the rate of people who say they're covered by a plan paid for by themselves or a family member increased from 17.2 percent to 18.1 percent over the same time." (The Washington Post; subscription may be required)

Fired Employee Declined FMLA and Broke Attendance Rules
"Escriba's argument rested on the erroneous assertion that simply mentioning an FMLA-qualifying reason for an absence triggers all the Act's protections. The 9th Circuit found that nothing in FMLA stops an employee from deferring the exercise of his or her FMLA rights. The preservation of future FMLA leave is a compelling and practical reason why an employee might wish to do so." [ Escriba v. Foster Poultry Farms, Inc. , No. 11-17608 (9th Cir. Feb. 25, 2014)] (Thompson SmartHR Manager)

Mayor Approves Newark Paid Sick Leave; Ordinance Expected to Take Effect Mid-June 2014
"As anticipated, Newark Mayor Luis Quintana approved an ordinance requiring private employers to provide paid sick leave to employees who work in Newark at least 80 hours per year. The ordinance is expected to take effect in mid-June, provided no further changes are made." (Ford & Harrison LLP)

Text of Actuarial Valuation Report for the State of California Retiree Health Benefits Program as of June 30, 2013 (PDF)
"Fully funding retiree healthcare benefits increases cash contributions by 103 percent from $1.78 billion to $3.62 billion; however, the result is a smaller increase in the expected balance sheet liability at fiscal year end 2014. Under the full funding scenario, the balance sheet liability is expected to increase from $16.12 billion at fiscal year end 2013 to $16.42 billion at fiscal year end 2014. The partial funding policy also controls the growth in the balance sheet liability and reduces the expected balance sheet liability at fiscal year end 2014 by approximately 8 percent from $19.46 billion to $17.81 billion." (Gabriel Roeder Smith & Company)

California Bill Would Repeal 60-Day Cap on Waiting Periods for HMOs and Group Health Insurance
"California Senate Bill 1034 ... would repeal language in the Health & Safety and Insurance Code that currently limits waiting periods under small and large group HMO contracts and health insurance policies to a maximum of 60 days. The new bill, if enacted, would prohibit insurers and HMOs from imposing any waiting or affiliation period under group coverage in the small and large-group markets.... In the preamble to the final regulations [on ACA eligibility waiting periods, DOL, HHS and IRS] make clear that state insurance laws may impose more stringent waiting period rules than the federal standard." (E is for ERISA)

Text of Comments by ERIC to Agencies on Amendments to Excepted Benefits Proposed Regs (PDF)
"ERIC 's comments include the following recommendations with respect to the proposed regulations: [1] The Department should provide a safe harbor definition of 'significant benefits.' [2] Disease management and other wellness programs that do not offer significant medical benefits should be eligible for the excepted benefit exclusion available to EAPs. [3] The Departments should clarify that providing more generous benefits under a plan does not cause an EAP to be considered to be coordinating benefits with another group health plan.... [4] The rule prohibiting the coordination of benefits provided under an EAP and a major medical plan should be interpreted broadly in specified instances. [5] The Departments should confirm that EAPs that are excepted benefits are also exempt from the PCORI fee. [6] EAPs that are excepted benefits should be exempt from COBRA's requirement." (The ERISA Industry Committee [ERIC])

Healthcare Lessons From Europe
"[At] the same time Obamacare has created an expanded federal role in health care, other countries that have been operating government-run health programs for decades are furiously seeking to reform their dysfunctional and financially unsustainable systems before they unravel. Perhaps most notably, 'enlightened' social democracies in Europe are looking toward market-based solutions to meet the twin challenges of accommodating consumer flexibility and choice while containing high costs." (U.S. Chamber of Commerce)

IRS Finalizes Section 83 Regs for Compensation, FICA, and Pension Funding Rules (PDF)
"The definition of 'substantial risk of forfeiture' for purposes of the deferred compensation rules in Code section 409A ... also provides, in part, that compensation is subject to a substantial risk of forfeiture if the right to the deferred amount is conditioned on either the performance (but not the refraining from performance) of substantial future services (i.e., a length-of-service requirement) or the occurrence of a condition related to the purpose of the compensation (e.g., a performance requirement) and the possibility of forfeiture is substantial.... Although its position is unknown at this point, the IRS ultimately may expand the regulations for sections 409A and 457(f) to mirror the positions in the final section 83 regulation." (Buck Consultants)

Text of Comments by ABA Business Law Section to SEC on Proposed Pay Ratio Rules (PDF)
55 pages. Excerpt: "We believe that the Commission has appropriately proposed -- and ultimately should adopt -- rules that afford registrants reasonable flexibility in preparing and presenting the mandated pay ratio disclosure. More specifically, given the difficulties likely to be encountered by many registrants in collecting the data necessary to prepare the required disclosure, as well as the reality that the compliance alternatives contemplated by the proposals minimize meaningful comparability across registrants, many of our comments and recommendations are based on our view that uniformity of the pay ratio disclosures among registrants should not be the paramount goal of the final rules." (Business Law Section, American Bar Association)

What Looks Like a Duck and Quacks Like a Duck
"All too often the defense of executive pay is presented as a series of formulaic methodologies to be utilized by corporate leadership (with the support of consultant intervention) to refute their critics. However, even as these diverse calculations try to make their point the wider audience remains confused, skeptical and unconvinced, so how has the argument been advanced? The executive reward process will still look bad." (Compensation Cafe)

NBCH Names Health Care Analyst and Commentator Brian Klepper New CEO National Business Coalition on Health

CEFEX and fi360 Provide Details of Certification Program to SEC Office for Compliance Inspections And Examinations Centre for Fiduciary Excellence (CEFEX)

October Three Joins Abelica Global as U.S. Member Firm October Three, LLC

LOMA Secure Retirement Institute Introduces Latest Retirement Course LOMA

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