Health & Welfare Plans Newsletter

June 20, 2018

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National Renewable Energy Laboratory (NREL)
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GreatBanc Trust Company
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Administration Eases Way for Small Businesses to Buy Insurance in Bulk

"By effectively shifting small-business coverage into the large-group market, it exempts such plans from ACA requirements for 10 'essential' health benefits, such as mental health care and prescription drug coverage, prompting warnings of 'junk insurance' from consumer advocates. Supporters say the new [DOL] rules, which the government estimated could create health plans covering as many as 11 million people, will lead to more affordable choices for some employers." Kaiser Health News

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New Association Health Plan Rules Present Opportunity for Small Businesses

"Key highlights of the new rules ... [1] Permits associations in different industries or businesses that share a common geographic locale (such as, state or city) to offer health plans.... [2] Allows sole proprietors to participate in an AHP. [3] Allows existing AHPs to continue on under the previous regulations.... [4] Associations that are interested in forming a fully-insured health plan are expected to be able to do so beginning on September 1, 2018. [5] The final regulations say associations must still have a substantial purpose other than providing healthcare coverage." Mercer

OCR Provides Reminder About Fundamental Aspect of Physical Security for PHI

"One aspect of security that is lurking in plain sight is the workstation. The Security Rule ... focuses on two key areas: [1] controls on physical access to the facility or area where systems which process Protected Health Information (PHI) operate; and [2] protecting the individual system components like workstations. The May OCR newsletter highlights some important issues relating to the workstations that handle PHI."
Poyner Spruill LLP

Grab Some Ibuprofen: State Mandates May Create Reporting Headaches

"Two states -- New Jersey and Vermont -- have enacted mandates so far this year. Massachusetts has had an individual mandate in place since 2007.... Although the federal mandate will carry no penalties starting next year, employer reporting and disclosure requirements remain in place. Employers with workers in states imposing an individual mandate face dual reporting -- at the state and federal level -- and may need to distribute double the number of individual tax notices on health coverage." Mercer

Employer Actions to Help Prevent Opioid Misuse and Reduce the Risk of Addiction

"[E]mployers [should] actively engage in conversations with the health plans and PBMs they work with and ask if their efforts and their work with clinicians include the following: [1] Strategies to mitigate risk of addiction before starting and periodically when continuing opioid therapy; [2] Limits on opioid prescriptions for acute pain to short durations. Three days or less will often be sufficient; [3] Use of immediate-release opioids when starting therapy for chronic pain instead of extended release/long-acting opioids; [4] Use of the lowest effective dose when prescribing opioids; and, [5] Avoidance of concurrent prescribing of opioids and benzodiazepines whenever possible." National Business Group on Health [NBGH]

[Advert.]

31st ECFC Annual Symposium

Sponsored by ECFC [Employers Council on Flexible Compensation]

The 31st Annual ECFC Symposium combines networking and professional development to provide those involved in healthcare consumerism with practical advice, education and updates on the regulatory front.


Fourth Circuit Finds Insurer Not Liable for Employer's Mistake

"The Fourth Circuit found in favor of an insurer on a claim for life insurance benefits, finding the insured's failure to submit the required evidence of insurability was not excused by his employer having wrongly deducted premiums for that coverage from his pay.... [T]he court found the employer, and not LINA, was tasked with day-to-day administration of the plan ... LINA was not responsible for notifying the decedent of the EOI requirement, and therefore could not be liable for a breach of that duty." [ Gordon v. CIGNA Corp. , No. 17-1188 (4th Cir. May 15, 2018)]
Seyfarth Shaw LLP

Court Focuses on Definition of 'Regular Occupation' in Disability Benefits Dispute

"[The district court found that] [1] The fact that Unum requested additional information and proof that plaintiff satisfied the elimination period after relying on information provided by plaintiff's employer does not qualify as a moving target.... [2] [T]he Dictionary of Occupational Titles is an acceptable source for nationwide job descriptions and classifications." [ Dahlka v. Unum Life Ins. Co. of Am. , No. 17-245 (W.D. Wis. June 12, 2018)]
Lane Powell PC

A Guide to Marketplace Special Enrollment Period Triggers and Timing (PDF)

"[C]ertain events that occur during the year can trigger a special enrollment period (SEP), when a person may be able to newly enroll in a Marketplace plan or change to a different plan outside of the open enrollment period. This [9-page] chart lists the various events that can trigger an SEP in the Marketplace, the timing for when people can access these SEPs, and when coverage through a particular SEP becomes effective." Center on Budget and Policy Priorities

[Opinion]

Texas v. United States: What Did The DOJ Do? (PDF)

"The error in the DOJ's position is that it views Congress's decision to repeal the individual mandate through the lens of the 2010 decision to pass the ACA and the Supreme Court's decision in NFIB . In 2010, Congress made explicit findings that the individual mandate was essential to the guaranteed issue and community rating provisions, implying that the other two would not function if the individual mandate was struck down."
National Health Law Program [NHeLP]

Executive Compensationand Nonqualified Plans

[Official Guidance]

Text of FASB ASU 2018-07: Stock Compensation (Topic 718) -- Improvements to Nonemployee Share-Based Payment Accounting

188 pages. "The areas for simplification in this Update involve several aspects of the accounting for nonemployee share-based payment transactions resulting from expanding the scope of Topic 718, Compensation -- Stock Compensation, to include share-based payment transactions for acquiring goods and services from nonemployees. Some of the areas for simplification apply only to nonpublic entities." Financial Accounting Standards Board [FASB]

Could Your 401(k) or Pension Plan Help Mitigate the Loss of Deductions Under Section 162(m)?

"The QSERP or SERP-Swap was a highly tax-efficient method for providing deductible and secure compensation for executive employees under a tax-qualified 401(k) or pension plan ... The possibility of providing additional tax deductible benefits to executives under a pension plan is a strategy that may not work for most companies, but definitely will work for some public companies." Winston & Strawn LLP

Selected Discussionson the BenefitsLink Message Boards

Need for an SBC for HSAs under Various Scenarios

An SBC seems to be required for a stand-alone HRA. And if the HRA is integrated with the medical plan, then it's possible to have the health plan SBC cover the HRA as well, but if it doesn't, the HRA will need an SBC. And the SBC requirement doesn't extend to stand-alone 'excepted benefits' plans such as dental or vision plans, and many FSA's (if they are HIPAA 'excepted benefits'). Agree? BenefitsLink Message Boards

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David Rhett Baker, J.D., Editor and Publisher
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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2018 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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