Health & Welfare Plans Newsletter

February 25, 2015

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Employee Benefits Jobs

Product Management Consultant
MassMutual Financial Group
in CT

RPS Market Manager
Associated Bank
in WI

Head of Operations, Retirement Plans Service & Operations
Ameritas Life Insurance Corp.
in OH

Staff Attorney II
UNITE HERE HEALTH
in IL

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Webcasts and Conferences

Medicaid Audio/Webcast
March 11, 2015 WEBCAST
(Conference of Consulting Actuaries)

ACA Best Practices: Annual Reporting and the ?Cadillac? Excise Tax
March 17, 2015 WEBCAST
(HR.com)

Saving for Retirement Using IRAs
March 19, 2015 in NY
(Worldwide Employee Benefits Network [WEB] - New York Chapter)

Retirement Plan Loans to Participants
March 26, 2015 WEBCAST
(IRS [Internal Revenue Service])

View All Webcasts and Conferences



[Guidance Overview]

ACA Countdown to Compliance for Employers (PDF)
135 pages. "52 weekly blog posts that comprise the series ... [which] appeared in the Mintz Levin Employment Matters Blog during 2014. Each of the posts addressed compliance issues affecting employers with a particular, though not exclusive, focus on that law's employer shared responsibility (a/k/a 'pay-or-play) rules. The end of the series coincided with the January 1, 2015 'go live' effective date of the new rules. The issues discussed week-to-week were generally gleaned from newly-issued guidance or developing problems, questions or concerns." (Mintz Levin)


[Advert.]

Set Yourself Apart From Your Peers With the CEBS Designation

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Co-sponsored by the International Foundation of Employee Benefit Plans and the Wharton School of the University of Pennsylvania, the CEBS designation gives you the knowledge and confidence to succeed in today's business environment. Learn More!



[Guidance Overview]

Minimum Value Requirement Means Health Plans Must Cover Physician and Hospital Services
"[CMS] says allowing these designs to be treated as providing [minimum value (MV)] not only would allow an employer to avoid the shared responsibility payment that the statute [imposes when ... not offering coverage], but would harm employees (particularly those with significant health risks) who would find such coverage unacceptable, by denying them access to a premium tax credit for individual coverage purchased through an exchange. It continues by saying that a plan that excludes substantial coverage for inpatient hospital and physician services is not a health plan in any meaningful sense and is contrary to the purpose of the MV requirement." (Thompson SmartHR Manager)

[Guidance Overview]

Beginning the Regulatory Conversation About the Cadillac Tax
"Under the approach to the rule that the IRS is considering, an employer would begin by aggregating all employees who are covered by a particular benefit package, such as a high- or low-option or HMO or PPO plan. Those groups would then be disaggregated into self-only and other-than-self-only coverage. Beyond this, the IRS is considering allowing (but not requiring) health plans to further disaggregate members either based on bona-fide occupation-related criteria (not including health status), or based on a limited number of specific criteria the IRS might list, such as number of individuals in unit, geographic location, or current and former employees. Comments on these different approaches are requested, although since rules applied are supposed to be similar to COBRA rules, the IRS suggests that if it makes changes to these rules it might change COBRA rules as well." (Timothy Jost, in Health Affairs)

[Guidance Overview]

IRS Issues Initial Cadillac Tax Guidance (PDF)
"This anticipated treatment of employee pre-tax contributions to HSAs will have a significant impact on HSA programs. If implemented as the agencies anticipate, it could mean many employer plans that provide for HSA contributions will be subject to the Cadillac tax as early as 2018, unless the employer limits the amount an employee can contribute on a pre-tax basis." (Buck Consultants at Xerox)

[Guidance Overview]

IRS Issues Preliminary Guidance on Cadillac Tax
"The guidance addresses three main subjects under the Cadillac tax: [1] The types of coverage subject to the tax; [2] The method for determining the cost of that coverage; and [3] The dollar limit at which the tax begins to apply.... Significantly, the new notice does not address any delay in the effective date of the tax, which is scheduled to go into effect for taxable years beginning after December 31, 2017." (Ballard Spahr LLP)


[Advert.]

On-Site Employee Health Clinics Summit ? Mar 11-12 2015 ? Atlanta

Sponsored by World Congress

Case studies and strategies from innovative employers to leverage on-site clinics to drive down health costs and increase employee health care accountability through quality care in a convenient setting.



[Guidance Overview]

Applying the Employer Mandate Look-Back Rules
"How do the look-back rules apply to employees who transfer positions or between employers? ... How do the look-back rules apply if the employer changes the measurement method or measurement period for a category of employees? ... What rules apply in the case of mergers and acquisitions?" (Groom Law Group, via PLANSPONSOR)

[Guidance Overview]

Final ACA Reporting Forms Include Some Changes from Proposed Versions
"The instructions to the final Forms 1094-C and 1095-C include several important clarifications and changes from the draft version of the instructions. For example, the final instructions clarify that an ALEM may use Form 1095-C to report with respect to non-employees enrolled in self-funded coverage (e.g., retirees and COBRA beneficiaries). The draft instructions would have required the ALEM to use Forms 1094-B and 1095-B for non-employee participants. This change allows ALEMs to satisfy all of their reporting obligations using Forms 1094-C and 1095-C." (Mazursky Constantine LLC)

[Guidance Overview]

FMLA Modified to Protect Same-Sex Spouses Regardless of Employees' State of Residence
"The revised law is expected to reduce the administrative burden on employers that operate in more than one state or have employees who move among states with different marriage-recognition rules. Employers will no longer need to consider the employee's state of residence to determine the employee's FMLA eligibility. Employers will simply need to know the marriage laws of the states or countries in which the marriages at issue were entered." (McGuireWoods LLP)

Text of Tenth Circuit Ruling That SPDs Did Not Create Vested Right to Company-Paid Retiree Health Benefits (PDF)
"Having reviewed the SPDs at issue in this matter, we conclude Plaintiffs cannot show that any plan contains clear and express language promising vested benefits.... Plaintiffs argue the SPDs in Group 1 are ambiguous because they contain conflicting provisions -- one promising lifetime benefits and the other reserving the right to alter or terminate the plan ... Read in context, no reasonable person in the position of a plan participant would have understood any of the language identified by Plaintiffs as a promise of lifetime health or life insurance benefits. That same reasonable person would have understood the Plans permitted the amendments made by Defendants." [Fulghum v. Embarq, No. 13-3230 (10th Cir. Feb. 24, 2015)] (U.S. Court of Appeals for the Tenth Circuit)

Retirement Plan Form 5500 Is Done; Now What About Your Welfare Benefit Plan?
"With the advent of the required U.S. Department of Labor's EFAST2 electronic filing of the Form 5500 return, the DOL has a comprehensive database to compile information on companies' retirement plans, an exercise that the DOL is pursuing vigorously. DOL's focus is on scrutinizing companies that file a Form 5500 for a large retirement plan that requires a financial statement audit (generally those with more than 100 participants) to determine whether the company is also filing a Form(s) 5500 for its welfare benefits." (EisnerAmper)

Beware of Stop-Loss Coverage Gaps When Choosing a Self-Funded Major Medical Plan (PDF)
8 pages. "Several national and regional suppliers have developed self-funded arrangements consisting of administrative services, provider networks, and stop-loss coverage to protect against unusually large claims. Many of these arrangements are well constructed, and many of these suppliers are highly regarded. But there is often a significant lack of coordination between the general coverage terms of the underlying self-funded group health insurance plans (which are subject to the ACA's insurance market and other reforms) and the terms of the accompanying stop-loss coverage (which is not considered health insurance and therefore is not subject to the ACA). This gap in coverage could result in major unanticipated claims liability for the unwary firm that adopts a self-funded arrangement." (Mintz Levin)

Majority of Employers Spend 16 Percent or More of Health Care Budget on Pharmacy Benefits
"Seventy-seven percent of employers spend 16 percent or more of their total healthcare budget on pharmacy benefits for their employees, with nearly five percent of employers spending more than 30 percent on pharmacy ... These results are up from 71 percent and 2.3 percent respectively in 2013 and indicate how employers can look to spend their pharmacy dollars more effectively." (Buck Consultants at Xerox)

Major Insurers Are Finally Revealing One of Healthcare's Greatest Mysteries
"Some of the country's largest health insurers are coming together to reveal the prices they pay for dozens of medical services across the country in an effort to help consumers become savvier shoppers. All the information can be found at Guroo.com , a site ... that was built by a health-care nonprofit group with information from United Healthcare, Humana, Aetna and Assurant Health. The transparency effort is a nod to the growing trend of patients being asked to pay more out of their own pockets, as insurers try to manage their costs and steer customers toward preferred health-care providers." (The Washington Post; subscription may be required)

Why Broker Health Plan Fee Agreements No Longer Work
"A carrier can retain 10 percent of the annual premium and pay a broker 5 percent. It can keep 11 percent and pay a broker 4 percent. It can keep 12 percent and pay a broker 3 percent, or it can keep 15 percent and pay the broker nothing. The idea that a broker can 'save' an employer money by going on a fee basis in the new world of health reform is, in and of itself, a demonstration of a lack of knowledge of PPACA.... In fact, a broker who works on a fee arrangement as opposed to a commission will end up costing an employer more. The employer will end up paying 15 percent overhead to the carrier and, in addition to that amount, the employer will pay another fee to the broker." (Craig Gottwals, in LifeHealthPro)

Obamacare's Max Deductible to Hit $6,850 in 2016
"The maximum deductible will rise to $6,850, up 3.8% from this year's $6,600 ceiling and about 8% above 2014's $6,350 limit. Meanwhile, the penalty for employers that don't offer coverage to most full-timers will rise a like amount to $2,160 per employee, up from this year's $2,080 fine.... The nearly 8% gain in the maximum deductible and out-of-pocket limit is about double the two-year increase in the amount that subsidized individuals may be required to pay for the second lowest-cost silver plan." (Investor's Business Daily)

King v. Burwell: What a Subsidy Shutdown Could Mean for Health Insurers
"Under the Affordable Care Act, health insurers have been big winners, enrolling record-high numbers and earning strong profits. Consumers, meanwhile, are benefiting from increased competition in the marketplaces -- with 25 percent more insurers participating in 2015 than 2014, with no increase in average nationwide premiums. A Subsidy Shutdown would reverse these dynamics. More than 7 million people in states with federally run marketplaces could lose their subsidies." (The Commonwealth Fund)

HHS Has No Fix If Court Nullifies Health Care Subsidies
"Answering a question from a member of Congress, Health and Human Services Secretary Sylvia M. Burwell said on Tuesday that the Obama administration would have no way to fix 'the massive damage' if the Supreme Court were to strike down the current system of subsidies for those who need financial help to buy health insurance.... The letter appeared to be released in an effort to continue to build public support for the subsidy system under the [ACA], even as that system has appeared to be under a significant threat in the Supreme Court." (SCOTUSblog)

IRS to Forego Collecting Underpaid Taxes Arising from HHS Mistake
"The Obama administration took a step on Tuesday toward containing the damage from sending the wrong Obamacare tax data to hundreds of thousands of taxpayers. The 50,000 taxpayers who filed returns based on inaccurate subsidy data they got from the government will not need to file amended returns and the IRS won't collect for any underpayment, the Treasury Department said.... Taxpayers who are owed a larger subsidy can file an amended return." (Politico)

More Than Half of ACA Subsidy Recipients Must Repay Some Portion
"Fifty-two percent of the clients seen by H&R Block Inc. who received subsidies ... in 2014 underestimated their income and must repay a portion of the subsidies, with the average repayment $530 ... In addition, the average tax penalty for not having insurance was $172, an indication that most taxpayers are paying more than the flat fee of $95 per adult[.]" (Bloomberg BNA)

[Opinion]

State Expectations: Setting The Record Straight In King v. Burwell
"The King petitioners allege that the Internal Revenue Service overstepped its authority by issuing regulations authorizing residents of states with federally run exchanges to access premium tax credits. The petitioners claim that Congress intentionally limited access to premium tax credits to residents of state-based exchanges as a way to encourage states to run their own exchanges. In support, some state officials claim that they interpreted the law in this manner and that it impacted their state's decision not to operate a state-run exchange. These assertions, like their analysis of the statutory language, fall flat under any serious scrutiny, however." (Christine Monahan, Kevin Lucia, and Sabrina Corlette, in Health Affairs)

Benefits in General; Executive Compensation

SEC Proposes Disclosure Rule for Hedging Transactions by Directors, Officers and Employees (PDF)
"The proposed rule implements Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and covers a much broader range of transactions than hedging policies adopted at most public companies. The proposed rule would not require a public company to prohibit hedging type transactions. It is appropriate for issuers at this time to consider the extent to which the scope of their existing hedging policies differs from the proposed rule." (McDermott Will & Emery)

Retention Compensation Plans -- Please Stay!
"On its face, [a] retention compensation [strategy is] another form of long-term deferred compensation; but it is different in that retention rewards are typically in place because of a specific event or set of circumstances triggering the need.... If the goal is to merely retain someone without regard to performance or engagement, they can be successful. However, if it is the only vehicle in place, such plans can be merely giveaways for tenure." (Findley Davies)

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