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Employee fired for violating terms of optional short-term disability program can proceed with FMLA claims

Fri, 05/11/2018 - 19:06

An employee who was terminated for failing to comply with the requirements of an optional disability program in which he did not want to participate could proceed with his FMLA interference and retaliation claims, a federal district court in Tennessee ruled. The court denied his former employer’s summary judgment motion, finding evidence that it never approved his request for FMLA leave and instead placed him on the disability program, then fired him because he allegedly violated some of the terms of the program.

FMLA leave request.

When the employee became ill in June 2013, he emailed his supervisor that he intended to take 36 hours of FMLA leave and would complete the requisite paperwork. His supervisor responded, “OK.” Three days later, a nurse practitioner diagnosed him with a viral infection and filled out an FMLA certification, in which she verified he was ill and could not perform his job because of his illness. The employee continued to be paid through the company’s short-term disability plan, which provided for situations when employees could not work because of illness. The plan stipulated that if an illness lasted more than 36 hours, employees must provide medical evidence confirming their disability and submit certain paperwork within two days of the employer requesting it.

Not cleared to return.

On June 17, the employee attempted to return to work. However, a nurse in the company’s work reentry department examined him and sent him home, informing his supervisor that the employee’s medical condition required not only his absence from work, but medical clearance to return. A few days later, he returned to his physician’s office, where a nurse practitioner again documented his illness as a viral infection. The employee asked his physician to complete a second FMLA form and send it to his employer. In early July, a nurse practitioner prepared another FMLA certification, which stated that he was unable to work through July 11. The employee heard rumors that the employer planned to fire him, but his supervisors expressed no issues with his FMLA leave, so he believed he was on FMLA-protected leave.

Paperwork required.

Later in the month, a company nurse told the employee she had not received necessary paperwork from his medical providers concerning his short-term disability. Based on that conversation, the employee believed the issue was documentation of disability leave, not FMLA paperwork. So he twice obtained new disability and FMLA paperwork, and personally delivered them to the company’s medical department. In August, however, the medical department nurse insisted she had not received his disability paperwork. The employee claimed she told him she only needed his disability, but not his FMLA paperwork. The nurse obtained his medical records, which contained neither the disability paperwork nor evidence of medical restrictions. The employee then obtained new FMLA and disability forms detailing his medical restrictions, stating the restrictions would be in effect for another one or two weeks, and explaining that he had a mandatory follow-up appointment in three days. Again, the employee personally delivered the forms to the company nurse.

Before his follow-up appointment, the employer terminated the employee, stating he did not comply with the process of providing evidence of disability, so his extended absence was not in compliance with the short-term disability plan. The employer asserted that after firing the employee, it discovered he had held side jobs with other employers, which constituted additional grounds for termination under the plan. The employee filed suit, alleging FMLA interference and retaliation.

FMLA interference.

The court denied the employer’s motion for summary judgement on the FMLA interference claim, rejecting its argument that it never denied the employee’s request for FMLA leave, so it could not have interfered with his FMLA rights. That the employer did not expressly deny his FMLA request did not establish that it did not interfere with his FMLA rights, though. The evidence showed that the employer did not permit him to take the 12 weeks of FMLA leave to which he was legally entitled. He had not yet exhausted his FMLA leave, and he gave the company’s medical department a new medical certification which entitled him to additional FMLA leave. Yet, the employer fired him just two days later.

The employer contended that it fired the employee for failure to show a disability under the short-term disability plan, unrelated to his FMLA rights. However, the court found evidence from which a reasonable jury could find he did not violate the plan. He submitted the disability paperwork within two days of the employer requesting it, which was within the timeframe required by the plan, and the paperwork contained work-related restrictions. It was factually disputed whether the employee properly complied with the employer’s previous requests for documentation, which required a jury’s assessment.

After-acquired evidence.

The court also rejected the employer’s argument that after-acquired evidence of the employee’s side jobs which violated the company’s short-term disability plan, entitled it to summary judgment on the FMLA interference claim. The employer claimed the employee had operated a newspaper while he was receiving disability benefits, and that it would have fired the employee had it known at the time. However, the employee operated the newspaper-he was not an employee of the newspaper, and the disability plan only prohibited working as an employee of another employer while on the plan.

The employer also contended that the employee helped his father with cattle-ranching while on disability, but the employee denied it. Although the employee stated that ranching activity was year-round, the evidence did not clearly establish that he engaged in ranching specifically during the time he was on disability.

FMLA retaliation.

The court also refused to dismiss the employee’s FMLA retaliation claim. The employer argued there was no causal connection between his FMLA-protected activity and his termination because it fired him for failing to comply with the requirements of the disability plan. However, the employee presented evidence not only of close temporal proximity between his FMLA leave and his discharge, but also that he did not initially apply for disability benefits, and the plan did not require him to do so while on medical leave. The employer could not force him to accept a paid leave program in lieu of FMLA leave when the employee indisputably requested FMLA leave.

There was no evidence the employer placed the employee on FMLA leave even though he requested it. Rather, the employer forcibly placed him on its short-term disability plan for which he did not originally apply, and for which he filled out paperwork only at the employer’s request. A jury could find the employer’s stated reasons for discharging him were pretextual given that it fired him for not honoring the terms of an optional disability plan in which he did not voluntarily participate.

SOURCE: McMurray v. Eastman Chemical Co. (E.D. Tenn.), No. 2:16-CV-270, April 16, 2018.
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Spencer’s Benefits NetNews – May 11, 2018

Fri, 05/11/2018 - 19:02
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IRS allows $6,900 to be used as HDHP family coverage deduction limit for 2018

The IRS modified the annual limit on deductions for contributions to health savings accounts (HSAs) allowed for individuals with family coverage under a high deductible health plan (HDHP) for calendar year 2018 announced in Rev. Proc. 2018-18, I.R.B. 2018-10. For 2018, taxpayers may treat $6,900 as the annual limitation on the deduction for an individual with family coverage under an HDHP.

        (Read Intelliconnect) »

Departments clarify reasonableness of GOT regulation for out-of-network ER services

The Departments of Labor, Health and Human Services, and the Treasury (the Departments) have issued a court-requested clarification to provide a more thorough explanation of their decision not to adopt recommendations made by the American College of Emergency Physicians (ACEP) and certain other commenters in a November 2015 final rule (80 FR 72192), which provided, in part, a methodology to determine appropriate payments by group health plans and health insurance issuers for out-of-network emergency services. The clarification states the Departments’ belief that the methodology they set forth in the 2015 final rule was reasonable and transparent and that the ACEP’s proposal requiring the development of a database to set usual, customary, and reasonable (UCR) payment amounts would require the Departments to go beyond their statutory authority and intrude on state authority and group health plan and health insurance issuer discretion.

        (Read Intelliconnect) »

Employers without SHOP marketplace plans receive health insurance credit relief

The IRS has provided guidance which allows certain small employers to claim the small business health care tax credit under Code Sec. 45R in situations in which no Small Business Health Options Program (SHOP) marketplace plans are offered in the county where the employer is located. Although the credit requires that the employer offer qualified health plans through the SHOP marketplace numerous counties no longer provides SHOP marketplace plans.

        (Read Intelliconnect) »

Financial incentives continue to play key role in success of well-being programs, survey finds

Companies across the country will continue to leverage and expand well-being programs to create healthier and more productive workforces. That’s according to the ninth annual Health and Well-Being Survey from Fidelity Investments and the National Business Group on Health. Financial incentives continue to play a key role in the success of well-being programs: Nearly nine out of ten employers (86 percent, up from 74 percent in 2017) offer financial incentives as part of their well-being platform, and the average employee incentive amount increased to $784 for 2018, up from $742 in 2017, and a 50 percent increase from the average of $521 in 2013.

        (Read Intelliconnect) »

Study shows spike in progressive health plans geared toward frenetic workforce

From telemedicine and stress reduction to weight management and health advocacy programs, today’s employers are providing a dramatic increase of progressive health plans, tailor-made to the always working workforce, according to a recent study from WorldatWork. The Inventory of Total Rewards Programs and Practices study reveals that while there haven’t been substantive changes in traditional benefits, companies are increasingly offering more progressive health benefits to meet the needs of an evolving, always-on workforce.

        (Read Intelliconnect) »

Little Sisters of the Poor had significantly protectable interest, intervention allowed

The Third Circuit U. S. Court of Appeals has ruled that the Little Sisters of the Poor Saints Peter and Paul Home (Little Sisters) demonstrated sufficient interest in federal litigation involving portions of the religious exemption interim final rule (IFR) to warrant their intervention in defense of the IFR. The Commonwealth of Pennsylvania’s civil action challenging the IFR posed a tangible threat to the Little Sisters’ interests, and Pennsylvania’s contentions were based on an incomplete reading of precedent. Furthermore, the court concluded that the Little Sisters’ interests may not be adequately represented by the federal government.

        (Read Intelliconnect) »

Treasury Department seeks comments on Pressroom Unions’ Pension Trust Fund application to reduce multiemployer plan benefits

Fri, 05/11/2018 - 18:52

The Department of the Treasury has released a notice of availability and request for comments on an application by the Board of Trustees of the Pressroom Unions’ Pension Trust Fund to reduce benefits under the plan pursuant to the Multiemployer Pension Reform Act of 2014 (MPRA).
The notice announces that the application is available on the Treasury Department’s website and seeks comments on the application from interested parties, including contributing employers, employee organizations, and participants and beneficiaries of the Pressroom Unions’ Pension Trust Fund.
Written comments, which should be received by May 31, 2018, may be submitted by the following methods: electronically using the Federal eRulemaking Portal: http://www.regulations.gov; and by mail to the Department of the Treasury, MPRA Office, 1500 Pennsylvania Avenue NW., Room 1224, Washington, DC 20220, Attn: Eric Berger. Comments sent via facsimile and email will not be accepted. Electronic submissions of comments through www.regulations.gov are encouraged.

Source: 83 FR 16436, April 16, 2018.
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In competitive labor market, employers needs to pay more attention to benefits package

Thu, 05/10/2018 - 18:05

With low unemployment hovering at 4.1 percent, many companies face the recurring question of how to attract and retain top talent in a candidate-driven landscape. In order to remain competitive, it is essential for companies to focus on what they can do to raise wages or reevaluate their benefits packages to adequately compensate employees. This is according to a new survey from Adecco USA, which surveyed over 1,000 employed adults to provide insight on what companies can do to be an ideal employer.
“While unemployment rates have continued to steadily decline, we have yet to see that same kind of positive and progressive movement on wages, which could be why we are seeing an uptick in workers having more than one job to pay the bills,” said Federico Vione, CEO of Adecco, North America, UK and Ireland. “There is much evidence to suggest that companies need to start paying more attention to the benefits packages they are offering, including wages, if they want to be deemed a desirable place to work and remain competitive in this tight labor market.”
Nearly 25 percent of employees feel they are paid below industry average and nearly one third (29 percent) of temporary employees quit their last job due to poor wages. What’s more, most employed adults (70 percent) believe minimum wage should be raised (39 percent believe “minimally” and 31 percent feel it should be raise “significantly”). Apart from monetary compensation, alternative benefits like growth opportunities and flexible work arrangements also prove to be important to employees.
Key findings about benefits include:

  • More than half of respondents (58 percent) said a pay raise would encourage them to stay at a job they were considering leaving;
  • Almost half of those surveyed from the ages of 18 to 44 (45 percent), ranked professional development as “extremely important” in determining their happiness;
  • Nearly one fifth (16 percent) of respondents left their job in 2017 due to a lack of growth opportunities; and
  • Work life balance (20 percent) and positive workplace culture and working relationships with coworkers (a combined 24 percent) also topped the benefits lists.
Career satisfaction and professional growth.

In addition to the compensation discussion, companies are falling behind when it comes to keeping their current employees happy. The 2018 US Workforce Report revealed that nearly one fourth (24 percent) of both male and female employees do not believe their current employer takes active steps to improve their happiness on-the-job.
“With waves of hiring surges bringing competition back to the job market, we continue to see employees change jobs for better benefits, career satisfaction and happiness,” said Joyce Russell, president, Adecco USA. “Employers must regularly take a hard look at their hiring process and what their current employees and future candidates are looking for in a job.”
Russell added, “In addition to fair pay as a key part of securing today’s ambitious workforce, it’s no surprise that over a quarter of workers also say opportunities for professional development are important to them. Top employers are realizing that providing opportunities for growth not only benefit their employees directly, but can also result in an upskilled workforce.”

Opportunities in new talent pools.

The survey also suggests that employees who have been out of the labor pool for some time are interested in returning to work. According to the survey, 20 percent of workers returned to work during the past four years, after a period of not working for one year or more. Other non-traditional candidate pools include employees without degrees and part-time workers. The survey revealed that one in three employees have second jobs, apart from their day-to-day. These employees may need additional funds on top of their base salary or pay, to make up for the current wage push inflation.
“With the tight labor market, non-traditional talent pools are a great place for companies to turn to. We are seeing that companies are more willing to hire candidates without a degree, and our survey findings mirror that thought process; nearly 80 percent of employees hold the belief that experience is more important than a degree,” Russell said.

SOURCE: adeccousa.com
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Plan terms, not state law, governed outcome of wire transfer dispute

Thu, 05/10/2018 - 17:52

An ERISA plan administrator did not abuse its discretion when it determined that a $2.7 million wire transfer from the participant’s account, initiated two days before the participant’s death, was a completed distribution, despite state law that could arguably have supported the opposite conclusion, the U.S. Court of Appeals in St. Louis (CA-8) has ruled. Thus, the administrator’s denial of a request for benefits from the participant’s surviving spouse was upheld.

Divorce proceedings

A participant whose accrued benefit in an employee stock ownership plan (ESOP) was about $2.7 million had filed for divorce but was still married when, on a Friday, he requested a lump-sum distribution of his accrued benefit to his trust. The funds were wired on Friday but not received by the trust until the following Monday. However, the participant had died on Sunday.
The surviving spouse submitted a claim for benefits to the ESOP. The plan administrator denied the claim because the wire transfer was completed before the participant died, thus reducing his accrued benefit to zero. The spouse filed suit under ERISA Sec. 502(a)(1)(B), alleging a wrongful denial of benefits. Applying an abuse of discretion standard, the district court upheld the plan administrator’s decision.
The appellate court also upheld the administrator’s decision. Agreeing that the abuse of discretion standard of review was appropriate in this case, it explained that an administrator does not abuse its discretion when a benefits denial is based on a reasonable interpretation of plan terms, even in situations where another interpretation is also possible.
The spouse argued that the administrator’s decision was inconsistent with Nebraska law, suggesting that a wire transfer is not complete until funds have been accepted by the transferee’s bank. But, the court explained, the terms of the plan, and not state law, controlled the outcome of the case.
The plan administrator determined that for purposes of the plan, the relevant inquiry was when funds are transferred out of the plan, not when the funds are received. The administrator reasonably explained its interpretation of the plan and offered substantial evidence when it denied the spouse’s claim.

Source: Wengert v. Rajendran, U.S. Court of Appeals, Eighth Circuit, No. 16-4571, April 3, 2018.
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Employers without SHOP marketplace plans receive health insurance credit relief

Wed, 05/09/2018 - 18:01

The IRS has provided guidance which allows certain small employers to claim the small business health care tax credit under Code Sec. 45R in situations in which no Small Business Health Options Program (SHOP) marketplace plans are offered in the county where the employer is located. Although the credit requires that the employer offer qualified health plans through the SHOP marketplace numerous counties no longer provides SHOP marketplace plans.
This relief is only available to employers that properly claimed a credit for all or part of the 2016 tax year, or that properly claim the credit for all or part of a later tax year, but are unable to offer employees a qualified health plan through a SHOP Exchange for all or part of the remainder of the credit period because the employer’s principal business address is in a county in which a qualified health plan through a SHOP Exchange is not available.
Small employers may only claim the credit for two consecutive years. The relief allows qualifying employers to claim the credit for the period in which there is no available SHOP marketplace coverage if the non-SHOP coverage qualifies for the credit under rules that were applicable before January 1, 2014 when SHOP marketplace plans were generally unavailable.
The guidance separately provides that Hawaii employers may not claim the credit for plan years beginning during 2017 — 2021 as the result of approval of Hawaii’s application for a 5-year State Innovation Waiver.
The guidance is effective as of April 27, 2018 and applies to periods after December 31, 2016.

SOURCE: IR-2018-108, April 27, 2018.
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DOL cautions fiduciaries on use of plan assets to promote ESG goals

Wed, 05/09/2018 - 17:54

The Department of Labor has issued guidance that may effectively discourage fiduciaries from using plan assets to promote environmental, social, ethical, and governance (ESG) concerns or engage in shareholder activism. The new guidance, in the guise of clarifying prior issuances on proxy voting, shareholder engagement, and economically targeted investments, cautions fiduciaries that they must always prioritize the economic interests of the plan and avoid “too readily” treating ESG factors as being economically relevant to investment choices. While technically directed to EBSA national and regional offices, Field Assistance Bulletin (FAB) 2018-01 is clearly intended to send a message to plan fiduciaries.

Prior guidance

In DOL Interpretive Bulletin 2015-01, EBSA addressed the fiduciary standards applicable to economically targeted investments (ETIs), stating that if a fiduciary properly determined that an investment was appropriate based solely on economic considerations, including those that may derive from environmental, social, and governance factors, the investment could be made without regard to any collateral benefits the investment may also promote. In withdrawing restrictive guidance under DOL Interpretive Bulletin 2008-01, the DOL advised that plan fiduciaries may base an investment in ETIs, in part, on collateral benefits, as long as the investment was “economically equivalent,” with respect to return and risk to beneficiaries, to investments that did not consider collateral benefits.
Subsequently, in DOL Interpretive Bulletin 2016-01, the DOL reversed a policy expressed in DOL Interpretive Bulletin 2008-02 which effectively required fiduciaries to cast proxy votes only in accordance with a plan’s economic interests. In Interpretive Bulletin 2016-01, the DOL confirmed that a fiduciary, in voting proxies, is required to consider the factors that may affect the value of the plan’s investment and not subordinate the interest of plan participants and beneficiaries in their retirement income to unrelated objectives. However, fiduciaries were no longer required to perform a cost-benefit analysis prior to exercising a proxy vote. Moreover, plan fiduciaries were authorized to consider environmental, social, and governmental issued in connection with proxy voting.

ESG investments

In revisiting DOL Interpretive Bulletin 2015-01, the DOL now explains that, to the extent ESG factors involve business risk or opportunities that are properly treated as economic considerations in evaluating alternative investments, the weight given to the factors should be appropriate to the relative level of risk and return involved compared to other economic factors. Thus, the DOL stresses, fiduciaries may not “too readily treat ESG factors as economically relevant” to the particular investment choices when making a decision. While not prohibiting ESG investments, the DOL cautions, a fiduciary’s evaluation of the economics of an investment should be focused on financial factors that have a “material effect on the return and risks of an investment based on appropriate investment horizons consistent with the plan’s articulated funding and investment objectives.”

ESG guidelines in investment policy statements

Investment policy statements may continue to include policies governing the use of ESG factors in evaluating investments, or the integration of ESG-related tools, metrics, or analyses in assessing an investment’s risk or return. However, the DOL clarifies that compliance with ERISA does not require investment policy statements to contain guidelines on ESG investments or integrating ESG-related tools. Moreover, fiduciaries are not required to adhere to investment policy statements that do include such provisions, if compliance would be imprudent.

ESG investment options as plan investment alternatives

Plan fiduciaries may add a properly diversified ESG-themed investment alternative to the available investment options on a 401(k) platform without being required to remove (or forego the addition of) non-ESG themed investment options. However, the DOL advises, plan fiduciaries may not base a selection of a qualified default investment alternative (QDIA) on collateral public policy goals. In the QDIA context, the DOL emphasizes, the decision to favor the fiduciary’s own policy preferences in selecting an ESG-themed investment option for a 401(k) plan without regard to the possibly different or competing views of plan participants and beneficiaries would raise questions about the fiduciary’s compliance with ERISA’s duty of loyalty. Thus, the selection of an ESG-themed target date fund as a QDIA would not be prudent if the fund would provide a lower expected rate of return than available non-ESG alternative target date funds with commensurate degrees of risk, or if the fund would be riskier than non-ESG alternative available target date funds with commensurate rates of return.

Shareholder engagement activities

In DOL Interpretive Bulletin 2016-01, the DOL explained that an investment policy that contemplates engaging in shareholder activities that are intended to monitor or influence the management of corporations in which the plan owns stock can be consistent with a fiduciary’s obligations under ERISA, if the fiduciary concludes that there is a reasonable expectation that such activities are “likely to enhance the economic value of the plan’s investment in that corporation after taking into consideration the costs involved.” The DOL guidance was in large measure informed by the understanding that proxy voting and other shareholder engagement activities typically do not involve a significant expenditure of funds by individual plan investors, as such activities are generally undertaken by institutional investment managers. Reflecting a similar understanding, the DOL now clarifies that DOL Interpretive Bulletin 2016-01 was not meant to imply that plan fiduciaries, including appointed investment managers, should routinely incur significant plan expenses to, for example, fund advocacy, press, or mailing campaigns on shareholder resolutions, call special shareholder meetings, or initiate or actively sponsor proxy fights on environmental or social issues relating to such companies.
The DOL concedes that certain corporate governance reform and environmental issues may present significant operational risk and cost to a business, and, thus, may be clearly connected to long-term value creation for shareholders. Under such circumstances, a reasonable expenditure of plan assets to engage with company management may be a prudent means of protecting the plan’s investment. However, the DOL notes, if a plan fiduciary is considering a routine or substantial expenditure of plan assets to actively engage with management on environmental or social issues, the fiduciary may need to provide a documented analysis of the cost of such shareholder activity compared to the expected economic benefit over an appropriate investment horizon.

Source: Field Assistance Bulletin 2018-01, April 23, 2018.
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Departments clarify reasonableness of GOT regulation for out-of-network ER services

Tue, 05/08/2018 - 18:40

The Departments of Labor, Health and Human Services, and the Treasury (the Departments) have issued a court-requested clarification to provide a more thorough explanation of their decision not to adopt recommendations made by the American College of Emergency Physicians (ACEP) and certain other commenters in a November 2015 final rule (80 FR 72192), which provided, in part, a methodology to determine appropriate payments by group health plans and health insurance issuers for out-of-network emergency services. The clarification states the Departments’ belief that the methodology they set forth in the 2015 final rule was reasonable and transparent and that the ACEP’s proposal requiring the development of a database to set usual, customary, and reasonable (UCR) payment amounts would require the Departments to go beyond their statutory authority and intrude on state authority and group health plan and health insurance issuer discretion.

The Departments also pointed out their belief that even if they were prepared to extend their authority, and establish and maintain a database, the monitoring of the database would be too costly and time-consuming. Further, they believe there is no indication that such a database would provide a better method for determining UCR amounts than the methods group health plans and health insurance issuers currently use.

Background.

Section 10101 of the Patient Protection and Affordable Care Act (ACA) reorganized, amended, and added to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act). Section 2719A of the PHSA, entitled “Patient Protections,” which requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance to cover emergency services even if the provider is not one of the plans participating providers.

In addition, it requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to apply the same cost-sharing requirement (expressed as copayments and coinsurance) for emergency services provided out-of-network as emergency services provided in-network.

However, the statute does not expressly address how much the out-of-network provider of emergency services must be paid for performing such services by the non-grandfathered group health plan or health insurance issuer offering non-grandfathered group or individual health insurance coverage.

Interim final rule.

On June 28, 2010, the Departments published an interim final rule (June 2010 IFR) (75 FR 37188) stating that because section 2719A of the PHSA does not require plans or issuers to cover balance billing amounts, and does not prohibit balance billing, even where the protections in the statute apply, patients may be subject to balance billing. To avoid the circumvention of the patient protections of section 2719A of the PHSA, and avoid excessive balance billing to beneficiaries, the June 2010 IFR required that a reasonable amount be paid for services by some objective standard.

Accordingly, the June 2010 IFR considered three amounts: the in-network rate, the out-of-network rate, and the Medicare rate. Specifically, a plan or issuer satisfies the copayment and coinsurance limitations in the statute if it provides benefits for out-of-network emergency services in an amount equal to the greatest of three possible amounts:

  1. The amount negotiated with in-network providers for the emergency service furnished;
  2. The amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services (such as the UCR charges) but substituting the in-network cost-sharing provisions for the out-of-network cost-sharing provisions; or
  3. The amount that would be paid under Medicare for the emergency service.

Each of these three amounts is calculated excluding any in-network copayment or coinsurance imposed with respect to the participant, beneficiary, or enrollee. These payment options are referred to the “Greatest of Three” (GOT) regulation.

During the comment period for the June 2010 IFR, some commenters were in favor of the GOT regulation while others expressed concerns. Several commenters, including ACEP, objected to the second prong of the GOT regulation, which relates to the method the plan generally uses to determine payments for out-of-network services, such as the UCR amount.

Final rule.

On November 18, 2015, the Departments finalized the June 2010 IFR regulation, including the GOT regulation (80 FR 72192), and incorporated a clarification that had been issued in a sub-regulatory Frequently Asked Questions (FAQs) guidance.

In the FAQs guidance, in Question and Answer number 4, the Departments clarified that a group health plan or health insurance issuer of group or individual health insurance coverage is required to disclose how it calculates the amounts under the GOT regulation, including the UCR amount. The FAQ guidance and the final regulations also provide that if state law prohibits balance billing, or in cases in which a group health plan or health insurance issuer is contractually responsible for balance billing amounts, plans and issuers are not required to satisfy the GOT regulation, but may not impose any copayment or coinsurance requirement for out-of-network emergency services that is higher than the copayment or coinsurance requirement that would apply if the services were provided in-network.

ACEP lawsuit.

On May 12, 2016, the American College of Emergency Physicians (ACEP) filed a lawsuit against the Departments, asserting that the final GOT regulation should be invalidated because it does not ensure a reasonable payment for out-of-network emergency services and that the Departments did not respond meaningfully to ACEP’s comments about purported deficiencies in the regulation.

On August 31, 2017, the U.S. District Court for the District of Columbia issued a memorandum opinion that granted in part and denied in part without prejudice ACEP’s motion for summary judgment, and remanded the case to the Departments for further explanation of the November 2015 final rule. The court concluded that the Departments did not adequately respond to comments and proposed alternatives submitted by ACEP and others regarding perceived problems with the GOT regulation.

Departments’ response.

The Departments’ clarification provided the additional consideration required by the court’s remand order. Specifically, the Departments more fully responded to the ACEP’s written comment dated August 3, 2010, in reference to the June 2010 IFR. In sum, however, the Departments declined to adopt the suggestions of ACEP and other commenters that made similar suggestions regarding the GOT regulation.

SOURCE: 83 FR 19431, May 3, 2018.
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Advisory Committee on Actuarial Examinations to meet April 30, 2018

Tue, 05/08/2018 - 18:18

The Advisory Committee on Actuarial Examinations of the Joint Board for the Enrollment of Actuaries (JBEA) will hold a closed meeting on April 30, 2018. The meeting will be from 8:30 a.m. to 5:00 p.m. The meeting will be held at Pinnacle Plan Design, 2201 E. Camelback Road, Suite 200, Phoenix, AZ 85016.
The purpose of the meeting is to discuss topics and questions that may be recommended for inclusion on future Joint Board examinations in actuarial mathematics, pension law, and methodology.

Source: 83 FR 15868, April 12, 2018.
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IRS allows $6,900 to be used as HDHP family coverage deduction limit for 2018

Mon, 05/07/2018 - 19:28

The IRS modified the annual limit on deductions for contributions to health savings accounts (HSAs) allowed for individuals with family coverage under a high deductible health plan (HDHP) for calendar year 2018 announced in Rev. Proc. 2018-18, I.R.B. 2018-10. For 2018, taxpayers may treat $6,900 as the annual limitation on the deduction for an individual with family coverage under an HDHP.
The IRS initially released inflation adjustments for HSAs (and other tax items) in Rev. Proc. 2017-37. Under that revenue procedure, the annual limit on deductions for an individual with family coverage under an HDHP was pegged at $6,900 for 2018. Congress subsequently changed the method by which many inflation adjustments are made (P.L. 115-97), and in response, the IRS released Rev. Proc. 2018-18, superseding Rev. Proc. 2017-37, to reflect the statutory amendments to the inflation adjustments.
Under Rev. Proc. 2018-18, the annual limitation on deductions for an individual with family coverage under an HDHP was $6,850 for 2018. In response to numerous complaints, the IRS has determined that it is in the best interest of sound and efficient tax administration to allow taxpayers to treat the $6,900 annual limitation originally published in Rev. Proc. 2017-37 as the 2018 inflation adjusted limitation on HSA contributions for eligible individuals with family coverage under an HDHP.
An individual who receives a distribution from an HSA of an excess contribution (with earnings) based on the $6,850 deduction limit may repay the distribution to the HSA and treat the distribution as the result of a mistake of fact due to reasonable cause. Alternatively, an individual who receives a distribution from an HSA of an excess contribution (with earnings) based on the $6,850 deduction limit published in Rev. Proc. 2018-18 and does not repay the distribution to the HSA may treat the distribution as excess contributions returned before the due date of return.
Rev. Proc. 2018-18, I.R.B. 2018-10, is modified, and the second sentence of section 4 is superseded.

SOURCE: Rev. Proc. 2018-27, I.R.B. 2018-20, May 14, 2018.
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PBGC issues first installment of 2016 pension insurance data book

Mon, 05/07/2018 - 18:48

The Pension Benefit Guaranty Corporation (PBGC) has released the first installment of pension insurance data book that cover pension plan data for the year beginning in 2016. The PBGC data tables generally provide researchers, journalists and others interested in the federal pension insurance program easily accessible, detailed statistics for the single-employer and multiemployer plans that the PBGC insures. The tables include data that quantifies the numbers of people and plans that the PBGC protects, the people receiving or eligible to receive benefits from the PBGC, and the benefits paid to them, claims against the PBGC, the funded status of PBGC-protected plans, breakdowns of populations that the PBGC protects by industry and state, and other vital statistics.
This first installment includes updated figures for both the summary and claims tables. The first installment information is available on the PBGC’s website at https://www.pbgc.gov/prac/data-books.

Source: PBGC Website, What’s New for Practitioners, April 4, 2018.
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Employers could purchase Medicare for employees under Choose Medicare Act

Fri, 05/04/2018 - 19:49

Senators Jeff Merkley (D-Ore.) and Chris Murphy (D-Conn.) have introduced the Choose Medicare Act (S. 2708), which would allow employers to purchase Medicare for their employees and give individuals who are not already eligible for Medicaid or Medicare the opportunity to enroll in Medicare.
The bill provides that public health plans (to be known as Medicare Part E) would be offered on all state and federal exchanges. Employers could choose to select Medicare Part E rather than private insurance to provide health care to their employees. The plans would cover essential health benefits and all items and services covered by Medicare.
“Every American deserves the promise of access to a popular, affordable, high-quality health care option,” said Merkley. “Fortunately, we already have exactly such an option – and it’s called Medicare. The Choose Medicare Act creates a Medicare option for all, putting consumers and businesses in the driver’s seat on the pathway to universal health care.”
The bill also would establish an out-out-pocket maximum in traditional Medicare and extend eligibility of the Affordable Care Act’s premium tax credits to middle-income earners.

SOURCE: S. 2708
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IRA owner liable for income tax on distributions exceeding basis in IRA contributions

Fri, 05/04/2018 - 19:21

An individual was required to include in gross income distributions from his individual retirement account (IRA) in excess of the basis in the IRA contributions, according to the U.S. Tax Court. The taxpayer made a nondeductible IRA contribution many years ago and made no subsequent contribution to the IRA account. The rest of the account value consisted of “reinvestments to date” that included dividends, short-term and long-term gains. The taxpayer provided credible testimony that his initial IRA investment consisted of a nondeductible contribution and that the balance distributed to him consisted of reinvested dividends and capital gains that accumulated free of federal income tax inside the IRA. Therefore, the taxpayer’s basis in his IRA account was limited to his initial investment, and he was liable for tax on the balance of the distribution.

Source: Shank v. Commissioner, U.S. Tax Court, Dkt. No. 1752-17, TC Memo. 2018-33, March 20, 2018.
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Working with multiple benefits vendors can be confusing for employees

Thu, 05/03/2018 - 18:56

More than 40 percent of employees find that dealing with multiple vendors to access their benefits is confusing, according to recent research from HealthAdvocate. The survey, Driving Benefits Engagement: Strategies to Optimize Employee Health and Well-Being Programs, found that working with multiple benefits vendors also leads to a fragmentation of vendor/partner/internally developed tools (43 percent). Other issues with utilizing multiple vendors are lack of utilization (40 percent) and technology issues with integrating systems (35 percent).

Generally speaking, when asked what approaches benefits leaders currently used to optimize employee engagement in health and well-being benefits, about a quarter of respondents mentioned a unified integrated benefits management platform, while another 25 percent specifically said mobile applications and social media were starting to play a larger role than in previous years. According to HealthAdvocate, the majority cited more conventional approaches including regular communications (mainly employee newsletters and blogs) (78 percent), events/meetings (such as benefit fairs) (67 percent), and contributions to health accounts (such as health savings accounts (HSAs) and health reimbursement arrangements (HRAs)) (65 percent).

Over half of employers (54 percent) used incentives to optimize employee engagement in benefits. Incentives most commonly used included: HSA contributions (49 percent), reduced insurance premiums (44 percent) and cash/gifts (39 percent). HealthAdvocate found that the programs employers incentivized the most were wellness programs at 73 percent, retirement benefits (such as 401ks) at 48 percent, and biometric screenings at 45 percent. Financial wellness, pricing transparency and disease management were examples of benefits employers don’t currently incentivize but are considering.

SOURCE: http://healthadvocate.com
GCNnews Healthinsurancenews Wellnessnews Surveynews
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Service providers not liable as fiduciaries for excess fees under alleged kickback arrangement with robo advisor

Thu, 05/03/2018 - 18:34

An investment advice provider and a recordkeeper were not liable as fiduciaries for excess fees received from a robo advisor under an alleged kickback arrangement, according to a federal trial court in Illinois.

Alleged pay-to-play arrangement with robo advisor

Caterpillar engaged Financial Engines (FE) from 2012-2014 to provide automatic investment advisory services (i.e., “robo advice”) to participants in its 401(k) plan. In 2014, Caterpillar contracted with Aon Hewitt Financial Advisors (AFA) to provide investment services to plan participants. AFA subsequently sub-contracted with FE to provide the investment advisory services. In order to access the information required to furnish investment advice and implement participant investment strategies, FE, in turn, contracted with Hewitt for use of its proprietary recordkeeping system.
Charging that the fees received by Hewitt and AFA under the contracts were excessive and amounted to improper kickbacks, plan participants brought suit, alleging fiduciary breach and prohibited transactions under ERISA. Essentially, the participants alleged that Hewitt and AFA established a “pay-to-play” arrangement in which FE, in exchange for being selected to provide investment services to the plan participants, agreed to “kickback” to Hewitt and AFA a significant portion of the fees charged and collected from individual plan participants. According to the participants, the fee arrangement was unrelated to any substantive functions performed by Hewitt or AFA and improperly inflated the cost of the investment advisor services, in violation of ERISA’s fiduciary and prohibited transaction provisions.
Hewitt and AFA countered by asserting the Hewitt was not a plan fiduciary and neither Hewitt nor AFA acted as fiduciaries with respect to Hewitt’s receipt of fees or AFA’s retention of FE as a subadvisor.

Fiduciary status of service providers

The participants initially charged that Hewitt acted as a fiduciary because it exercised control over Caterpillar’s retention of FE to provide investment services. The court, however, found that Hewitt was not identified as a fiduciary in plan documents and its master service agreement with FE expressly stated that Caterpillar, and not Hewitt, retained the sole and final authority to hire FE and negotiate the terms and conditions of its service. The participants’ “conclusory” allegations that Hewitt essentially forced Caterpillar to accept FE, or that FE hired Hewitt on the plan’s behalf were not plausible (absent other evidentiary support) in light of the parties’ agreement (see also, Chendes v. Xerox HR Solutions, DC Mich (2017).
Alternatively, the participants maintained that Hewitt also acted as a fiduciary by providing investment advice for a fee. However, in addition to conceding that Caterpillar contracted with Hewitt only for recordkeeping and other ministerial services, the participants offered no evidence indicating that Hewitt provided individualized investment advice to the plan on a regular basis pursuant to a mutual agreement that the advice would serve as the primary basis for the plan’s investment decisions.
Finally, the court noted that Hewitt did not breach fiduciary duties by accepting fees from FE because it did not have discretion over the amount of its compensation. Hewitt’s arm’s-length negotiations with FE to provide transmission and technological services, furthermore, did not constitute the exercise of discretionary authority over the plan or plan assets.

AFA not liable as fiduciary for negotiating own compensation

AFA was a plan fiduciary for purposes of providing investment advice. The participants, however, did not question the quality of the investment advice, but charged that AFA breached its fiduciary duties in negotiating its own compensation to secure excess fees from Caterpillar and in hiring FE.
Initially, the court noted that, under ERISA §2510.3-21(d), an investment advice fiduciary is not deemed to be a fiduciary regarding any plan asset with respect to which it does not have or exercise discretionary authority, control, or responsibility, other than rendering investment advice for a fee. In addition, the court explained, a service provider that negotiates its own compensation with a plan fiduciary at arm’s length is not a fiduciary for that purpose. A fiduciary’s negotiation of its own compensation, the court stressed, is a non-fiduciary act
The court concluded that AFA did not unilaterally control its compensation, as Caterpillar was free to select a different service provider. Accordingly, AFA was not a fiduciary when it negotiated at arm’s length with Caterpillar and did not have control over its compensation.
AFA’s hiring of FE to provide subadvisory services also was not a fiduciary function. The court found no authority, in law or the parties’ agreements, for the participants’ assertion that the hiring of a subcontractor is an express fiduciary responsibility.
Accordingly, the participant did not establish AFA as a fiduciary for purposes other than providing investment advice. As a result, AFA could only be liable for misconduct in rendering investment advice (which was not alleged in the complaint) and not in negotiating the terms of its compensation.

Fees provided to AFA were not unreasonable

The participants also claimed that AFA violated ERISA Sec. 406(a)(1)(C) by charging and accepting excessive fees for investment advice. AFA countered that the transactions central to complaint were exempt under ERISA Sec. 408(b)(2) as services necessary for the establishment or operation of the plan for which they received reasonable compensation. Acknowledging the exemption under ERISA Sec. 408(b)(2), the participants charged that the amount of compensation received by AFA was “plainly unreasonable” in relation to the services being provided and thus, constituted an illegal kickback.
The court found the participants’ allegation to be too speculative to state a claim. Specifically, the court explained, the complaint did not include any factual allegations that the fees paid were not consistent with the fair market value of the services provided or some other acceptable metric for assessing a reasonable fee.

Service provider not liable for accepting negotiated compensation

The plan participants further charged that AFA, by receiving payments from FE of a portion of the fees paid by the plan (i.e., “kickbacks”), violated ERISA Sec. 406(b)(3) by receiving consideration for its own personal account from a party dealing with the plan. The court rejected the claim, explaining that contrary to the participants’ assertion, AFA was actually paid by the plan and its participants. Moreover, the fees paid by the plan and its participants to AFA for investment advisory services did not support an ERISA §406(b)(3) claim, the court reasoned, as service providers may not be held liable for accepting negotiated fixed compensation.

Source: Scott v. Aon Hewitt Financial Advisors, LLC (DC IL).
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EBSA health investigations remained steady last year, more than half involved mental health parity

Wed, 05/02/2018 - 19:15

EBSA closed 347 health investigations in FY 2017 (compared to 330 in FY 2016), according to the FY 2017 Mental Health Parity and Addiction Equity Act (MHPAEA) Enforcement Fact Sheet. Of these 347 closed investigations, 187 involved plans subject to MHPAEA and were, therefore, reviewed for MHPAEA compliance. The fact sheet also notes that of these 187 investigations where MHPAEA applied, EBSA cited 92 violations for MHPAEA noncompliance.
EBSA enforces Title 1 of ERISA on 2.2 million private employment-based group health plans, which cover 130.8 million participants and beneficiaries. EBSA relies on its 400 investigators to review plans for compliance with ERISA, including the MHPAEA. EBSA also employs 110 benefits advisors who provide participant education and compliance assistance regarding MHPAEA. Benefits advisors also pursue voluntary compliance from plans on behalf of participants and beneficiaries.
Generally, if violations are found by an EBSA investigator, the investigator requires the plan to remove any offending plan provisions and pay any improperly denied benefits. To achieve the greatest impact, Investigators will also seek a global correction, working with the plans’ service providers to find improperly denied claims and correct the problem for other plans as well.

Examples of enforcement actions.

The fact sheet provides six examples of MHPAEA enforcement actions, including removing restrictions on residential treatment, eliminating more restrictive financial requirements, reimbursing participants for excessive copayments, and eliminating overly stringent precertification requirements.
One example involved additional coverage for mental health and substance use disorder treatment. The Los Angeles Regional Office discovered that a plan failed to provide out-of-network coverage for inpatient and outpatient mental health and substance use disorder benefits. Based on the findings of the investigation, a settlement agreement was executed to achieve correction of multiple plan violations, including these MHPAEA violations. As a result of the investigation, 52 mental health and substance use disorder claims were reprocessed and the plan paid $24,152 in previously denied mental health and substance use disorder benefits. The plan also revised its documents to comply with parity requirements.

SOURCE: FY2017 MHPAEA Enforcement Fact Sheet, dol.gov/agencies/ebsa
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PSCA survey shows Roth availability doubled in past decade

Wed, 05/02/2018 - 19:09

Roth availability in plans doubled in the last decade, according to the Plan Sponsor Council of America’s (PSCA’s) 60th Annual Survey of Profit Sharing and 401(k) Plans. PSCA, part of the American Retirement Association, found Roth was offered in 63.1 percent of plans in 2016 compared to 30.3 percent in 2007. 401(k) plans, 403(b) plans, and governmental 457 plans are authorized (but not required) to incorporate a “qualified Roth contribution program,” under which participants may make an irrevocable election to have all or a portion of their elective deferrals to the plan designated as after-tax “Roth contributions.”
The survey found that 7.2 percent of plans added Roth as an option in 2016, with the largest increase at 11.2 percent for plans with more than 5,000 participants.

Employee Roth contributions

Of the eligible employees that made contributions to a plan in 2016, 18.1 percent made Roth contributions. Interestingly, the highest percentage of Roth contributors comes from the smallest plan group—plans with 1-49 participants have an average of 29.2 percent of eligible employees making Roth contributions.
Roth deferrals are among the top six behaviors that companies monitor. According to the survey, 21 percent of all plans monitor investments of Roth deferrals.
“In the 12 years since Roth became available as an option where you already offer a 401(k) or 403(b) with pre-tax contributions, Roth features have demonstrated their value,” said PSCA Executive Director Jack Towarnicky.
According to Towarnicky, there are some situations in which Roth contributions might be preferable to pre-tax contributions. Some workers are just starting their careers and may currently be subject to a lower marginal income tax rate. These workers:

  • seek tax diversification as a hedge against potentially higher future income tax rates in years to come,
  • are employed in a state that doesn’t currently have an income tax,
  • want to build a legacy accumulation of assets that will not be subject to minimum required distributions,
  • are limited by the 2018 Code Sec. 402(g) contribution maximum of $18,500 and/or the 2018 Code Sec. 414(v) catch-up contribution maximum of $6,000, and they know that an equal amount of contributions on a Roth basis represents a significantly greater savings rate,
  • want to manage their taxable payouts in retirement with an eye on avoiding Medicare Part B and Part D income surcharges,
  • are highly paid and are not eligible to contribute to an IRA on a Roth basis, and/or
  • want to convert taxable monies to a Roth basis today, but they are not currently eligible for a distribution that can be rolled over and converted into a Roth IRA where plans with Roth features can permit in-plan conversions at any time.

PSCA’s 60th Annual Survey reflects the 2016 plan-year experience of 590 DC plan sponsors.

Source: PSCA press release, March 22, 2018.
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Pension & Benefits NetNews – May 1, 2018

Tue, 05/01/2018 - 18:18

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Featured This Week

Employee Benefits Management News

  • Employees not entitled to compensation for FMLA-protected breaks, DOL opinion letter says
  • New fathers take under a week of paid parental leave if any at all
  • EBSA issues array of guidance on mental health parity
  • EBSA health investigations remained steady last year, more than half involved mental health parity

Pension Plan Guide News

  • Treasury Department seeks comments on Pressroom Unions’ Pension Trust Fund
  • PBGC issues policy statement on alternative withdrawal liability payment terms
  • PBGC issues first installment of 2016 pension insurance data book

Employee Benefits Management News

Employees not entitled to compensation for FMLA-protected breaks, DOL opinion letter says

The Department of Labor has published an opinion letter addressing compensation for 15-minute rest breaks required by an employee’s serious health condition. For more information, see ¶2115A.

        (Read Intelliconnect) »

New fathers take under a week of paid parental leave if any at all

While a majority of Americans support fathers receiving paid parental leave, few men take advantage of such programs, and those who do take only one week or less, according to a new study from Ball State University. For more information, see ¶2115C.

        (Read Intelliconnect) »

EBSA issues array of guidance on mental health parity

EBSA has released an array of guidance on the Mental Health Parity and Addiction Equity Act (MHPAEA), including proposed Frequently Asked Questions, an enforcement fact sheet, a self-compliance tool, and a revised draft disclosure template. In addition, the DOL has released a report to Congress that outlines its current implementation and enforcement actions in furtherance of the MHPAEA. For more information, see ¶2115F.

        (Read Intelliconnect) »

EBSA health investigations remained steady last year, more than half involved mental health parity

EBSA closed 347 health investigations in FY 2017 (compared to 330 in FY 2016), according to the FY 2017 Mental Health Parity and Addiction Equity Act (MHPAEA) Enforcement Fact Sheet. Of these 347 closed investigations, 187 involved plans subject to MHPAEA and were, therefore, reviewed for MHPAEA compliance. For more information see ¶2115G.

        (Read Intelliconnect) »

Pension Plan Guide News

Treasury Department seeks comments on Pressroom Unions’ Pension Trust Fund

The Department of the Treasury has released a notice of availability and request for comments on an application by the Board of Trustees of the Pressroom Unions’ Pension Trust Fund to reduce benefits under the plan pursuant to the Multiemployer Pension Reform Act of 2014 (MPRA).application to reduce multiemployer plan benefits. For more information, see ¶157i

        (Read Intelliconnect) »

PBGC issues policy statement on alternative withdrawal liability payment terms

The Pension Benefit Guaranty Corporation (PBGC) has issued a policy statement to assist multiemployer pension plans that request PBGC review of alternative plan rules for satisfying employer withdrawal liability. The guidance explains the PBGC’s review process, the information needed, and factors the PBGC considers in reviewing plan proposals. For more information, see ¶19981z71.

        (Read Intelliconnect) »

PBGC issues first installment of 2016 pension insurance data book

The Pension Benefit Guaranty Corporation (PBGC) has released the first installment of pension insurance data book that cover pension plan data for the year beginning in 2016. The PBGC data tables generally provide researchers, journalists and others interested in the federal pension insurance program easily accessible, detailed statistics for the single-employer and multiemployer plans that the PBGC insures. For more information, see ¶157a.

        (Read Intelliconnect) »

For more information, visit http://www.wolterskluwerlb.com/rbcs.

Departments committed to reviewing employer plans for MHPAEA compliance

Tue, 05/01/2018 - 17:49

The Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (the Departments) plan to devote resources to the review of employer-sponsored health plans and the extension of widespread correction for Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) compliance, including the re-adjudication of improperly denied claims. The Mental Health and Substance Use Disorder Parity Action Plan also noted that dedicated MHPAEA enforcement teams will be conducting investigations of behavioral health organizations and insurance companies for MHPAEA compliance.

MHPAEA applies to employment-based large group health plans and health insurance issuers choosing to provide mental health and substance use disorder coverage and requires that limitations on such benefits not be more restrictive than limitations on medical and surgical benefits.

The Action Plan is required by Sec. 13002 of the 21st Century Cures Act. It includes recent and planned actions from the Departments related to ongoing implementation of the MHPAEA, and is based on written comments from stakeholders and input from a public listening session held in July 2017.

Since the enactment of MHPAEA, the Action Plan noted that the Departments have been committed to enforcing the law, promoting compliance, assisting consumers, and conducting investigations of non-compliance. As one example in the Action Plan, HHS recently updated its online portal to help individuals who have questions or are having trouble accessing their mental health or SUD treatment. This portal is available at https://www.hhs.gov/parity. The Action Plan specified that HHS will continue to enforce parity laws and help consumers access mental health and substance use disorder treatment services.

SOURCE: https://www.hhs.gov/sites/default/files/parity-action-plan.pdf
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PBGC releases state-by-state pension payout information for 2017

Tue, 05/01/2018 - 17:39

The Pension Benefit Guaranty Corporation (PBGC) has released information about the amounts it paid out to retirees for 2017. The information is presented state-by-state (including U.S. territories) and, within each state, by congressional district. For example, in 2017 the PBGC paid more than $543 million to more than 78,000 Ohio retirees in failed plans, making Ohio the state with the most benefits paid. In total, the PBGC paid more than $5.6 billion to more than 868,000 retirees participating in terminated, single-employer plans in 2017. An additional 504,687 Americans will get their pension benefits from the PBGC when they are eligible to retire.

Source: PBGC Blog
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