Trump Signs Act Mandating Group Health Plans Cover COVID-19 Testing For Free

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) requiring group health plans to cover COVID-19 testing for free and without preauthorization.  This means no deductibles, no copays, and no coinsurance. 

More details regarding the changes employers are required to make are explained in our Employee Benefits Update of March 16, 2020 entitled “COVID-19 Employer Group Health Plan Changes to Help Employees.” One clarification that was made after publishing the Update is that that COVID-19 telehealth testing must also be provided for free.  Unfortunately, we still await relief on the telehealth/HDHP issue flagged in the Update.  Read More ›

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Congress Giveth and They Taketh Away — Recent Health Plan Changes

In enacting the Further Consolidated Appropriations Act, 2020, (the “Act”), Congress, among other changes, enacted the following key changes affecting employer group health plans:

  • Repeal of the Cadillac Tax:  Most notably, and a huge relief to most employers, Congress repealed the Cadillac tax.   The Affordable Care Act (“ACA”) added a requirement requiring employers to pay a 40% excise tax on the value of “rich” health plans (i.e., those that exceed $10,200 for an individual and $27,500 for a family, indexed for inflation).  The excise tax was originally scheduled to take effect for taxable years beginning after 2017, but it was delayed two years by subsequent legislation.
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California Cares . . . About Employees Losing Flexible Spending Account (“FSA”) Funds

California recently approved Assembly Bill 1554, adding a flexible spending account notice requirement to § 2810.7 of the California Labor Code.  The new law, which takes effect January 1, 2020, states:

(a) An employer shall notify an employee who participates in a flexible spending account, including, but not limited to, a dependent care flexible spending account, a health flexible spending account, or adoption assistance flexible spending account, of any deadline to withdraw funds before the end of the plan year. Notice shall be by two different forms, one of which may be electronic.

(b) Notices made pursuant to subdivision (a) may include, but are not limited to the following: (1) Electronic mail communication. Read More ›

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Preventive Care Can Now Be Covered for Specified Chronic Conditions Before HDHP Deductible

On July 17, 2019 the IRS released Notice 2019-45  resolving a preventive care problem that has been plaguing many high deductible health plans (“HDHPs.”).  The Affordable Care Act’s free preventive care mandate appears to be working.  People are catching medical problems sooner.  As a result, many employers have embraced the concept of free preventive care and want to go a step further – providing free preventive care for certain chronic conditions, such as asthma, diabetes, and heart disease.  However, they have run into a snag.  Under IRS guidance, treatment for chronic conditions is not “preventive care” and covering it before the deductible is met jeopardizes the plan’s status as an HDHP. Read More ›

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IRS Letters 226J: Having the Right Section 4980H Records Can Be Worth a Small Fortune

As reported in our 2018 End of Year Plan Sponsor “To Do” List (Part 1) Health & Welfare, the Section 4980H penalties are still in effect and the IRS is enforcing them.  Employers continue to receive Letters 226J, which the IRS uses to propose employer shared responsibility payments. During the Letter 226J process, the IRS has been allowing employers to challenge proposed penalties and to correct reporting errors. However, the IRS will not necessarily accept an employer’s word at face value.

Recordkeeping is key

One of the biggest problems employers may face is finding records to prove they satisfied the 95% offer of coverage test (to avoid the subsection (a) penalty) or that they offered a specified employee minimum value affordable coverage (to avoid the subsection (b) penalty).  Read More ›

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Texas Judge Declares the Affordable Care Act Unconstitutional – What’s Next?

As reported in our “2018 End of Year Plan Sponsor “To Do” List (Part 1) Health & Welfare,” the Tax Cuts and Jobs Act repealed the individual mandate, which spawned a lawsuit challenging the whole of the Affordable Care Act (“ACA”).  The lawsuit, filed in the Northern District of Texas in February 2018 by the Texas and Wisconsin Attorneys General, leading a 20-state coalition, alleged that because the repeal of the individual mandate “renders legally impossible the Supreme Court’s prior savings construction of the Affordable Care Act’s core provision – the individual mandate – the Court should hold that all of the ACA is unlawful and enjoin its operations.” The plaintiffs argued that not only is the individual mandate now unlawful, but also that this core provision is not severable from the rest of the ACA. Read More ›

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Zombie Benefits – Are Health Reimbursement Arrangements (“HRAs”) Back From the Dead?

The Affordable Care Act (“ACA”) has not been kind to health reimbursement arrangements (“HRAs”).  Many employers got rid of HRAs, or integrated them with a major medical plan, in order to avoid significant penalties under the ACA.  At one point it appeared that after-tax HRAs did not have to comply with the ACA.  However, as noted in our March 11, 2015 SW Benefits Blog, “IRS Issues More Guidance On Employers That Pay For Individual Health Insurance Policies for Employees – Gives Limited Relief to Small Employers,” the IRS clarified that even after-tax HRAs are also subject to the ACA rules. The proposed regulations that were published in the Federal Register on October 29, 2018 breathe new life into HRAs.  Read More ›

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Count Down to Open Enrollment – Some Quick Thoughts

As open enrollment approaches for the 2019 calendar year, below are some items employers may want to consider:

  • Wellness program changes – Many employers change their wellness programs during open enrollment.  This is a reminder that even small changes to a wellness program may have significant consequences.  For example, if an employer increases wellness rewards, it may impact not only whether a program complies with the 30% test under HIPAA but it may also impact affordability under Code Section 4980H.  Making changes to a wellness program structure may also create problems.  For example, employers with tobacco surcharges might allow people to avoid surcharges by attesting that they do not use tobacco. 
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Association Health Plans – A New Frontier?

On June 21, 2018, the Department of Labor published the final association health plan (“AHP”) rule, which can be accessed at: https://www.gpo.gov/fdsys/pkg/FR-2018-06-21/pdf/2018-12992.pdf.  83 FR 28912 (June 21, 2018).  The final rule is short, just shy of three pages in length (see page 28961 to 29964), and provides that a bona fide group or association shall be deemed to be able to act in the interest of an employer within the meaning of section 3(5) of ERISA by satisfying the criteria set forth in the final rule.  The requirements are relatively straightforward and are summarized below:

  • Bona fide group or association of employers – There are eight requirements that must be met to satisfy this standard. 
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Health Plans – A Pain to Administer But Appreciated by Employees

Administering health plans is not the easiest task.  Such plans are subject to an alphabet soup of laws, including but not limited to ERISA, the Internal Revenue Code, COBRA, HIPAA, GINA, Mental Health Parity, the ADA, the ADEA, and Title VII.  However, a November 2017 American Benefits Council survey may make employers feel better about the time, energy, and resources they spend administering their health plans.

The November 2017 survey shows that employees prefer high quality benefit programs over additional pay by a nearly 2‑to‑1 margin.  This is surprising because many people assume “cash-is-king.”  The survey demonstrates otherwise and highlights how important employer-provided health benefits are to employees.  Read More ›

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