Health & Welfare Plans Newsletter

August 22, 2018

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[Guidance Overview]

Texas Continues to Be Hotbed for Paid Sick Leave Activity

"On August 16, the San Antonio City Council voted and passed the Earned Paid Sick Time Ordinance [which] is scheduled to go into effect for most employers on August 1, 2019 ... Earlier this year, Austin became the first Texas municipality to enact a paid sick leave ordinance.... On August 17, the Texas Court of Appeals for the Third District granted a request to enjoin the Austin ordinance's October 1, 2018 effective date.... The fate of the Austin ordinance likely will dictate whether the SA Ordinance goes into effect as scheduled." Seyfarth Shaw LLP

[Advert.]

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IRS Ruling Addresses Employer's Use of VEBA Assets

"According to the IRS, amending the trust would require amounts that were initially contributed to fund health benefits for collectively bargained retirees to be used instead to fund benefits for active collectively bargained employees. However, the IRS concluded that transferring assets to a separate subaccount for this purpose was not fundamentally inconsistent with the premise on which the employer's earlier deduction was based.... The IRS also concluded that the proposed trust amendment adding a subaccount would not result in any portion of the trust reverting to the employer's benefit." Thomson Reuters Practical Law

Editor's Pick Putting Employees at the Center of Your Cancer Benefits Strategy (PDF)

36 pages. "Because cancer is a complex illness, and throughout the cancer journey, employees may struggle with finding the right clinical support, figuring out what benefits are available to them and how to deal with emotional needs and workplace issues that often arise. The guidance and resources employers make available are often not utilized to their fullest extent.... This guide will help you organize, coordinate and provide the best possible experience for your employees[.]" Northeast Business Group on Health [NEBGH]

HSAs Can Reduce Your Employees' Fear of High Deductibles

"[T]he easiest way to put your employees' minds at ease is for you to contribute to their HSA to provide a cushion.... Another option would be to offer a match of employee contributions.... [Consider] attaching a Post-Deductible Health Reimbursement Arrangement (HRA)." OneDigital Health and Benefits

Number of Increases in Drug Prices Drops After Release of Administration's Drug Pricing Blueprint

"Using manufacturer-reported prescription pharmaceutical prices, we observe that the number of price increases has been reduced considerably since the release of the President's Drug Pricing Blueprint, compared to the same time period in the year prior. Since the Blueprint's release, there are 60% fewer brand name product price increases in 2018 compared to the same period in 2017, and 54% more brand and generic product price decreases combined." Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

[Advert.]

What Employers Need to Know About ACA 'Pay or Play' Mandates

Sponsored by Lorman and BenefitsLink

Sept. 18 webinar will clear up any confusion about the ACA 'Pay or Play' mandates and help employers to avoid penalties. Discount for BenefitsLink readers .


CMS Administrator Vows to Defend Pre-Existing Conditions Despite ACA Legal Challenge

"[CMS Administrator Seema Verma] told members of the Senate Committee on Homeland Security and Governmental Affairs that she is 'deeply concerned about individuals with pre-existing conditions' and advocated for ensuring those with pre-existing conditions have access to the necessary coverage. 'If the law changes in any way, shape or form around that, we would work with Congress to address that issue to make sure they had the appropriate protections in place,' Verma said." FierceHealthcare

2018 Midyear HSA Research Report

"HSA consumers had accumulated $51.4 billion in their HSA at the end of June, a year over year increase of 20.4%.... The total number of HSAs grew to 23.4 million at the end of June, up 11.2% from a year ago.... Overall, accounts grew by 5.2% in the first half of 2018, compared with 5.0% in 2017, 8.5% in 2016, and 5.5% in 2015.... HSA investment assets reached an estimated $9.8 billion at the end of June, up 45% year over year.... Direct employer relationships are the leading driver of new account growth, accounting for 42% of new accounts opened in the first half of 2018." Devenir

[Opinion]

When We Find a Cure, Price It Like Netflix to Ensure Access

"[A]ccess and profits can easily go hand in hand. Netflix has shown how to do it, delivering almost unlimited blockbuster entertainment for a monthly fee. While that doesn't translate directly to the way individuals buy medicines, it does have lessons for state governments trying to take care of thousands of sick poor people. Louisiana, for one, is paying attention and may soon try Netflix-like contracting with manufacturers." Dana P. Goldman, via The Hill

[Opinion]

Three Essentials for Negotiating Lower Drug Prices

"The international approach to achieving lower drug prices comprises three core elements. First, other developed countries build market power by aggregating their purchasing to gain negotiating leverage with drug companies.... Second, other countries use an authoritative group of experts to systematically assess the value of individual drugs, using the best available information on benefits and expenses.... Third, with value assessments in hand, other countries enter a negotiating process and stand behind it." The Commonwealth Fund

Executive Compensationand Nonqualified Plans

[Official Guidance]

Text of IRS Notice 2018-68: Guidance on Section 162(m) as Amended by the Tax Cuts and Job Act (PDF)

"Section 162(m)(1) generally limits the allowable deduction for a taxable year for remuneration by any publicly held corporation paid with respect to a covered employee. The [Tax Cut and Jobs Act of 2017] made significant amendments to Section 162(m), and provided a transition rule applicable to certain outstanding arrangements (commonly referred to as the grandfather rule). Stakeholders have submitted comments indicating that they would benefit from initial guidance ... on the amended rules for identifying covered employees and the operation of the grandfather rule, including when a contract will be considered materially modified so that it is no longer grandfathered. This notice addresses these limited issues. The Department of the Treasury and the [IRS] anticipate that further guidance ... will be issued in the form of proposed regulations[.]"
Internal Revenue Service [IRS]

[Guidance Overview]

IRS Issues Critical 162(m) Grandfathering Rules

" Notice 2018-68 provides guidance on: [1] What constitutes a written binding contract in effect on November 2, 2017 (hint, it may require a legal judgment). [2] What constitutes a material modification of a written binding contract. [3] The types of remuneration that may remain deductible (protected from the new rules under the grandfather exception). [4] The extent to which certain individuals employed in 2017 and the future will become and remain covered employees subject to the deductibility limit."
Winston & Strawn LLP

[Guidance Overview]

IRS Issues Initial Guidance on the Application of Section 162(m) After Tax Reform

"[T]he existence of a written binding contract on November 2, 2017, is not by itself sufficient to qualify the arrangement for the transition rule. The Notice clarifies that: Compensation is payable under a written binding contract that was in effect on November 2, 2017 only if the corporation is obligated under applicable law to pay the compensation under the contract if the employee performs services or satisfies vesting conditions.... The Section 162(m) amendments apply to a written binding contract that is renewed after November 2, 2017. [ Notice 2018-68 ] provides guidance on specific contractual terms that would result in a contract renewal and when a material modification would occur."
Thomson Reuters Practical Law

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Lois Baker, J.D., President
David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager

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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