Health & Welfare Plans Newsletter

October 2, 2018

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[Guidance Overview]

DOL Rules Time Spent on Wellness Activities Not Compensable Under the FLSA

"[T]he facts of the opinion included the following wellness activities: [1] attending a health education class; [2] taking an employer-facilitated gym class or using the employer-provided gym; [3] participating in telephonic health coaching and online health education classes; [4] participating in Weight Watchers; and [5] voluntarily engaging in a fitness activity." Kilpatrick Townsend

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[Guidance Overview]

NYC Amends Earned Safe and Sick Time Rules and FAQs

"[E]mployers now must distribute their written safe and sick time policies personally to employees in at least three situations ... The Amended Rules also add a written policy requirement for non-sick paid leave policies.... [J]oint employers will be held individually and jointly liable for violations of all applicable OLPS laws and rules, including ESSTA and the Amended Rules, and satisfaction of any associated penalties or restitution.... The Amended Rules remove provisions about calculating sick time payment for employees paid on a piecework basis." Seyfarth Shaw LLP

Wisconsin Court of Appeals Rules an EOB is Sufficient Notice of Coverage Denial

"The Court ... held that the monthly EOBs were clear and unambiguous that coverage had been denied and that, under the coordination of benefits provisions of the policy, he was required to exhaust all other available coverages, including Medicare Part B.... [This case] does indicate that courts are willing to equate an insurer's Explanation of Benefits to a monthly bank account statement as sufficient notice of account activity." [ Anderson v. WEA Trust , Appeal No. 2017AP2386 (Wis. Ct. App. Aug. 23, 2018; unpub.)]
Michael Best

Plan's Limitation Period That Was Not Disclosed in Final Denial Letter Was Unenforceable

"[The court] held that a health plan's 180-day contractual limitations period for filing suit was unenforceable against a covered dependent because the plan's final benefits denial letter failed to disclose the limitations period. On the merits of the claim, however, the court concluded that the plan's benefits denial for the dependent's treatment at a residential treatment center was reasonable and must be upheld." [ Stacy S. v. The Boeing Co. Employee Health Benefit Plan (Plan 626) , No. 15-72 (D. Utah Sept. 25, 2018)]
Thomson Reuters Practical Law

Health Insurance Costs Accelerating for Employees

"Nationwide, the average annual deductible for single coverage rose to $1,808 in 2017 an increase of $112 or 6.6%. Nearly half of workers enrolled in employer-sponsored plans had a deductible at or above $1,300 for an individual or $2,600 for a family. Average annual out-of-pocket limits for single-coverage work-sponsored plans rose to $4,246 nationwide, an increase of $147, or 3.6%, in 2017." HealthLeaders Media

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Health Insurance Industry Insider to Employers: Learn to Negotiate

"Bartlett pitched a bold strategy. Step one: Tell the state's hospitals what the plan would pay. Take it or leave it. Step two: Demand a full accounting from the company managing drug costs. If it wouldn't reveal any side deals it had with drugmakers, replace it. Bartlett's strategy would expose a culture in which participants fail to question escalating costs and the role each part of the health care industry plays in them." National Public Radio [NPR]

Recent Trends and Characteristics of Employees with High Prescription Drug Spending

"The share of people with employer coverage who have high drug spending has increased in recent years ... People with high drug spending are older, on average, than those with little or no drug spending ... Workers and their family members with certain diagnoses have much higher average drug spending... People with out-of-pocket drug spending over $1,000 represent a small share of enrollees, but a larger share of drug spending." The Peterson-Kaiser Health System Tracker

Health Savings Accounts: Some Frequently Asked Questions and Answers (PDF)

"If an employee terminates employment, can an employer retrieve the employer contributions it made to the terminated employee's HSA account? ... If an employer contributes to HSAs and is subject to FMLA, is the employer required to continue HSA coverage during FMLA leave like other health plan coverage? ... Is a plan document, summary plan description, Annual 5500 reporting, or COBRA continuation coverage required for HSAs, like other plans? ... How does the state tax treatment of HSAs differ from federal tax treatment?" EPIC

South Carolina Expands Telemedicine to Physician Assistants, Advanced Practice Registered Nurses

"Under the new South Carolina law, PAs and APRNs may establish a relationship with a patient via telemedicine -- as long as certain standards are met. For example, an APP cannot prescribe medication over the phone when an in-person physical exam is necessary for diagnosis. A simple questionnaire without an appropriate evaluation (involving patient history, mental status evaluation, physical exam, diagnostic/testing, etc.) will not suffice. Also, the APP must make follow-up care available if needed." Womble Bond Dickinson

GAO Report: Postal Retiree Health Benefits -- Unsustainable Finances Need to Be Addressed

"About 500,000 postal retirees receive retiree health benefits. The Postal Service Retiree Health Benefits Fund pays most of the costs. The Postal Service has not made $38.2 billion in required payments to this fund through fiscal year 2017. If it makes no more payments, [OPM] projects the fund will be depleted in fiscal year 2030. [GAO] highlighted several approaches to address this shortfall, such as requiring most eligible retirees to participate in Medicare, increasing cost-sharing, or reducing benefits." [GAO-18-602: Published: Aug 31, 2018. Publicly Released: Oct 1, 2018] U.S. Government Accountability Office [GAO]

Analysis of 12-Month Short-Term Costs and Availability (PDF)

"The average lowest premium for ACA-compliant coverage for a 40-year-old woman is $349 per month (in the surveyed markets). By contrast, the average lowest premium for short-term coverage for a 12-month plan is $107 per month, a savings of $242 per month or 69 percent.... The average price for 90-day plans was $65 per month, compared to the $107 price point for a 12-month term." eHealth

[Opinion]

Employers Could Slash Their Health Costs Overnight -- So, Why Don't They?

"The authors say the only thing that really holds down costs is giving money to the employees and letting them buy their own health care.... The most striking examples to start with are the markets for cosmetic and LASIK surgery -- two areas where third party payers have never been involved. In both fields there is price transparency and price competition. Patients never wonder what they are going to pay. A package price covers doctor, nurse, anesthetist, the facility and anything else that might be involved. There is no $100 aspirin tablet showing up as a surprise on the final bill." John C. Goodman, via Forbes

Benefits in General

Editor's Pick Employee Benefits in the Supreme Court: October 2018 Update (PDF)

32 pages. "[T]he Court has been concerned with who can bring claims involving employee benefits, what kind of claims can they bring, what kind of remedies can they seek -- issues uniquely in the purview of courts, as distinguished from plan sponsors, administrators, fiduciaries or regulators -- and whether State laws implicating employee benefits will be enforced, as frequently as it has considered substantive issues affecting employee benefits. Of the 129 cases, 69 involved retirement arrangements, 33 involved health plans, 19 involved disability benefits, and 15 involved life insurance, leave or fringe benefit arrangements." Eversheds Sutherland

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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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