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Legal Update on Select Health and Welfare Plan Issues

In a presentation to the Silicon Valley Employers Forum, Susan M. Nash discussed recent updates to select health and welfare plans while outlining some potential issues. The agenda included changes to exchange notices, corrections to Form 1094 and 1095, issues regarding the Affordable Care Act (ACA) Section 1557 and the Equal Employment Opportunity Commission’s (EEOC) wellness program regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

View the presentations slides here.




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Extension for Good-Faith Reporting and 2016 Forms 1095-C and 1094-C

The Affordable Care Act (ACA) created information reporting requirements for certain large employers and issuers of health insurance coverage under Sections 6055 and 6056 of the Internal Revenue Code (Code). On November 18, 2016, the Internal Revenue Service issued Notice 2016-70, extending both the due date for furnishing individuals with Forms 1095-C and 1095-B, in addition to certain good-faith transition relief to the 2016 information reporting requirements under Code sections 6055 and 6056.

Read the full article here.




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Congress Passed the 21st Century Cures Act

Congress has passed, and President Obama is expected to sign the 21st Century Cures Act, H.R. 34. Among other things, the new legislation will permit small employers (those that are not considered applicable large employers under the Affordable Care Act (ACA)), to maintain general-purpose stand-alone Health Reimbursement Arrangements (HRAs) if they do not offer a group health plan to any of their employees. Stand-alone HRAs are not permitted based on ACA guidance. Annual benefits under these new HRAs cannot exceed an indexed maximum of $4,950 per year ($10,000 if family members are covered), must be funded solely by employer contributions (employee contributions are not permitted), and can only be used for the reimbursement of Internal Revenue Code §213(d) medical care expenses.




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IRS Adjusted ACA Fee Amounts for the 2017 Policy or Plan Years

Patient-Centered Outcomes Research Institute (PCORI) Fee

The Patient-Centered Outcomes Research Institute (PCORI) fee was established under the Affordable Care Act (ACA) to advance comparative clinical effectiveness research. The PCORI fee is assessed on issuers of health insurance policies and sponsors of self-insured health plans. The fees are calculated using the average number of lives covered under the policy or plan, and the applicable dollar amount for that policy or plan year. The past PCORI fees were—

  • $2 per life, for policy and plan years ending on or after October 1, 2013, and before October 1, 2014
  • $2.08 per life, for policy and plan years ending on or after October 1, 2014, and before October 1, 2015
  • $2.17 per life, for policy and plan years ending on or after October 1, 2015, and before October 1, 2016

The new adjusted PCORI fee is –

  • $2.26 per life, for policy and plan years ending on or after October 1, 2016, and before October 1, 2017

Employers and insurers will need to file Internal Revenue Service (IRS) Form 720 and pay the updated PCORI fee by July 31, 2017.

Transitional Reinsurance Fee

Like the PCORI fee, the transitional reinsurance fee was established under the ACA. It was designed to reinsure the marketplace exchanges. Contributing entities are required to make contributions towards these reinsurance payments. A “contributing entity” is defined as an insurer or third-party administrator on behalf of a self-insured group health plan. The past transitional reinsurance fees were:

  • $63 per covered life for 2014
  • $44 per covered life for 2015
  • $27 per covered life for 2016

The transitional reinsurance fee funds cease after 2016. Although 2016 this is the final year for transitional reinsurance fees, the US Department of Health and Human Services (HHS) requires that entities retain records relating to their contributions for at least 10 years.

HHS recently released a filings manual which identifies key dates for the 2016 fee contributions.  Contributing entities must submit the 2016 form and schedule their fee contribution no later than November 15, 2016. As in prior years, entities can elect to pay:

  1. The entire year’s contribution in one payment no later than January 17, 2017, or
  2. Two separate payments for the benefit year, with the first remittance ($21.60 per covered life) due no later than January 17, 2017, and the second payment ($5.40 per covered life) due no later than November 15, 2017.

Payment can be made online.




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Trump’s Obamacare: What Employers Can Expect

In the aftermath of the recent election of Donald Trump as president of the United States and the Republicans’ retention of control over both the House and the Senate, many are beginning to assess the impact of a Republican controlled Congress and presidency on the future of the Affordable Care Act (ACA).

Read the full article.

This article was published on CFO.com, November 16, 2016.




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How Congress, President-Elect Trump Might Proceed on Promise to Repeal, Replace ACA

President-elect Donald Trump has vowed to repeal and replace the Affordable Care Act (ACA). This campaign promise, which echoes a familiar refrain from Republicans since ACA’s passage, is more complex than it may seem.

There are pathways to quickly “repealing” key elements of ACA such as the individual mandate and its subsidies, but this could result in significant market disruption in the absence of a replacement. Republicans will now be in charge of putting together a health reform replacement package; what that replacement will look like is an open question.

Read the full article.




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IRS Announces Employee Benefit Plan Limits for 2017

The Internal Revenue Service recently announced the cost-of-living adjustments to the applicable dollar limits for various employer-sponsored retirement and welfare plans for 2017. Although some of the dollar limits currently in effect for 2016 will change, the majority of the limits will remain unchanged for 2017.

Read the full article here.




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Affordable Care Act Whistleblower Complaint Procedures

On October 11, 2016, the Occupational Safety and Health Administration published a final rule that establishes procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA); for hearings before US Department of Labor (DOL) administrative law judges in ACA retaliation cases; review of those decisions by the DOL Administrative Review Board; and judicial review of final decisions.

Read the full article here.




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Wellness Incentive Programs: Navigating Legal Landmines and Designing Effective Employee Communication Strategies

This year’s Employer Healthcare & Benefits Congress featured a presentation by Susan Nash that addressed the many shapes and sizes of wellness programs today. Programs are typically designed to promote health and to educate employees about prevention, but some are disease management oriented, while others are designed to improve the general overall health of an employee population.

Presentation focal points included:

  • HIPAA Nondiscrimination Rules
  • Tri-Agency Guidance under ACA on Wellness Programs
  • Americans with Disabilities Act and GINA
  • EEOC Enforcement of ADA and Final Regulations
  • Internal Revenue Code Limitations

View presentation slides.




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Score on Wellness Lawsuits—Wellness Plans 3, EEOC 0?

On September 19, 2017, in the ongoing lawsuit the US Equal Employment Opportunity Commission (EEOC) brought against Orion Energy Systems Inc. (Orion) regarding its wellness program, a Wisconsin federal judge found that Orion’s wellness program was voluntary. The employees have a choice between participating in the program or paying the full price for health benefits. The final results of this case remain to be seen since the judge also held that the EEOC can apply its new rules on such wellness programs retroactivity.




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