Paid Family Leave claims processing tips

New York is setting a trend with new Paid Family Leave policy. New law could trigger states to follow their lead in the near future.


While most of us realize that change is a part of life, few of us can afford to sacrifice our paycheck when it happens.

To help ensure that New Yorkers do not find themselves in this situation, the state signed into law the nation’s strongest and most comprehensive Paid Family Leave (PFL) policy. Effective Jan. 1, 2018, the law provides residents with job-protected, paid leave to bond with a newborn, care for a loved one with a serious illness, or tend to family matters when a loved one is called to active military service.

The new law encompasses numerous leave types, eligibilities and durations, so processing a PFL claim can be confusing. To unmuddy the waters, let’s dive into the who, when, how and what regarding PFL.

Who is eligible?

Added to a company’s Disability Benefits Law (DBL) policy as a rider, Paid Family Leave was created for private-sector organizations with at least one employee who works in New York State at least 30 days of the year. Public companies may opt to provide coverage as well, but it is not required.

To be eligible for PFL, applicants must be employed by a covered employer at the time they apply.

  • Employees with a regular work schedule of 20 or more hours per week are eligible after 26 consecutive weeks of employment. This includes sick or vacation time, but may not count other covered leaves.
  • Employees with a regular work schedule of fewer than 20 hours per week are eligible after 175 days worked, which do not need to be consecutive.

How it works

In 2018, both full- and part-time employees are eligible to take up to eight weeks of PFL and receive 50% of their average weekly wage (AWW). The weekly earnings under PFL are currently capped at $652.96, which is 50% of the New York State Average Weekly Wage (NYSAWW) of $1,305.92. (For details, visit www.ny.gov.)

New Yorkers stand to benefit even more in the years to come, as the state plans to increase PFL incrementally, reaching 12 weeks by 2021.

PFL benefits are funded through a small weekly payroll deduction. The deduction is a percentage of an employee’s weekly wage — up to the aforementioned cap.

To provide some perspective, the current payroll contribution is 0.126% of a New Yorker’s gross weekly earnings, capped at a total annual contribution of $85.56. For example, an employee earning $1,200 a week in 2018 would pay $1.51 per week. To calculate an employee’s weekly deduction, simply enter the required information at www.ny.gov/paid-family-leave-calculator.

A healthy dose of security

Not only will eligible applicants receive a portion of their wages while on leave, qualifying employees can rely on continued health insurance coverage while taking PFL. Employers are required by law to continue the existing health insurance benefits. If employees contribute to the cost of their health insurance, they are also required to continue paying their portion while on leave.

It is important to note that Paid Family Leave does notreplace disability benefits coverage. Disability benefits are meant to cover off-the-job personal illness or injury. PFL is designed to provide paid time off to care for family that need assistance.

In fact, some employees may be eligible for both PFL bonding and disability benefits for maternity at the same time, although they may not be taken simultaneously, according to the New York State Workers Compensation Board.

Leave categories

PFL is flexible and may occur in a variety of ways. The applicant has options when deciding how much time to take at any given time. While the law states that a 30 day leave notice is required, there are considerations for times when life surprises us.

There are four main PFL categories:

  • Continuous leave: The employee takes the entire 8 weeks of PFL without interruption.
  • Intermittent leave:The employee takes leave in increments as short as one day at a time.
  • Foreseeable event:The leave begins following a planned event such as a birth, adoption, surgery or military ceremony.
  • Non-foreseeable event:The leave is in response to an accident or an unexpected surgery.

PFL-worthy events

As mentioned earlier, an employee can request PFL for one of three reasons. The State of New York classifies these leaves as Bonding, Family Care and Military Exigency. Each type has its own eligibility terms and required documentation. If your company or agency does not have the required forms on hand, they are available at www.ny.gov. Employees requesting PFL are required to do so at least 30 days in advance, when possible, starting with Form PFL-1.

Bonding Leave A parent may take PFL during the first 12 months following the birth, adoption or foster placement of a child. To start the application process, an employee will need to obtain the “Bond with a Newborn, Newly Adopted or Fostered Child” forms package.

From there, the employee would complete a “Request for Family Leave” (Form PFL-1) and submit it to his or her employer, who will complete the employer section and then return it to the employee. A PFL-1 is required for all three types of leave. Also required is the “Bonding Certification” (Form PFL-2). The employee must complete and submit both forms, along with any supporting documentation (e.g., birth certificate, adoption certificate, etc.), to the employer’s insurance carrier.

Family Care Leave New Yorkers have the right to take time off to care for a loved one with a serious health condition. This individual could be a spouse or domestic partner, child or stepchild, as well as a parent, stepparent, parent-in-law, grandparent or grandchild.

After obtaining a “Care for a Family Member with Serious Health Condition” forms package, the employee must submit a completed PFL-1 to their employer, who will complete it and return it to the employee. Additionally, the employee’s family member (the care recipient), or their authorized representative, is required to complete a “Release of Personal Health Information Under the Paid Family Leave Law” (Form PFL-3). Upon completing the release, the individual will submit it to his or her health care provider.

The second form the employee is required to complete is the “Health Care Provider Certification” (Form PFL-4). Upon completion, this form will go to the employee’s health care provider for review, then to the care recipient and ultimately back to the employee. The employee must submit the PFL-4, along with his or her completed PFL-1, and PFL-3, to his or her employer’s insurance carrier.

Military Exigency Leave — If an employee’s spouse, domestic partner, child or parent is deployed abroad or has been notified of an impending deployment, the employee can take PFL to assist or support the military member and his or her family. Examples include making financial and/or legal arrangements on the military member’s behalf, attending military-related ceremonies for the deployed individual and tending to urgent childcare needs created by the family member’s deployment.

To begin the process, the employee must obtain the “Assist Families in Connection with a Military Deployment” forms package. Next, the employee will need to complete a PFL-1 and submit the form to his or her employer. The employee must then complete the “Military Qualifying Event” (Form PFL-5), attaching any supporting documentation (e.g., covered active duty orders, letter from the military unit confirming deployment, etc.). The employee will then submit his or her employer-approved PFL-1 and completed PFL-5 to the employer’s insurance carrier.

Employer obligations

For employers, when it comes to PFL claims, compliance is key. Here are a few important obligations:

  • New York employers are required to complete and return a submitted PFL-1 within three business days of receiving it.
  • If an employer provides health care, the employer must maintain coverage while the employee is out on leave.
  • As mentioned earlier, employers must provide the same or a similar job upon the employee’s return from leave.

While honoring these obligations are the law, doing so can be challenging for business owners, especially in the case of an intermittent leave. This new coverage will ramp up over the next four years, rates and benefit details are subject to changes by the New York Department of Financial Services (NYDFS).

It is critical to stay in-the-know about this new and developing coverage. Employers can look to their local insurance professionals for help navigating the ins and outs of this groundbreaking law, starting with filling out an employee census to determine their related premiums.

SOURCE:
Maas J (31 May 2018). "Paid Family Leave claims processing tips" [Web Blog Post]. Retrieved from address https://www.propertycasualty360.com/2018/05/25/paid-family-leave-claims-processing-tips/


Compliance Recap April 2018

April was a busy month in the employee benefits world.

The Internal Revenue Service (IRS) modified the 2018 health savings account (HSA) family contribution limit back to $6,900. The U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the Treasury released proposed frequently asked questions regarding mental health parity. The Centers for Medicare and Medicaid Services (CMS) released the 2019 parameters for the Medicare Part D prescription drug benefit, a 2019 Benefit and Payment Parameters final rule, a transitional policy extension for non-grandfathered coverage in the small group and individual health insurance markets, and an assignment schedule for new Medicare beneficiary identifiers. The IRS released frequently asked questions on the employer credit for paid family medical leave. The Congressional Research Service (CRS) published a summary of federal requirements that apply to the private health insurance market.

 

UBA Updates
UBA released one new advisor: 2019 Benefit and Payment Parameters Final Rule
UBA updated existing guidance: Sample Open Enrollment Notices Packet

 

IRS Changes 2018 HSA Family Contribution Limit
The Internal Revenue Service (IRS) recently released Revenue Procedure 2018-27 to modify the 2018 health savings account (HSA) family contribution limit back to $6,900. This is the second, and likely final, change in limit during 2018. As background, in May 2017, the IRS released Revenue Procedure 2017-37 that set the 2018 HSA family contribution limit at $6,900.

However, in March 2018, the IRS released Revenue Procedure 2018-10 that adjusted the annual inflation factor for some tax-related formulas from the Consumer Price Index (CPI) to a new factor called a “chained CPI.” As a result, the 2018 HSA family contribution limit was lowered to $6,850 from $6,900, retroactively effective to January 1, 2018. Stakeholders informed the IRS that the lower HSA contribution limit would impose many unanticipated administrative and financial burdens. In response and in the best interest of sound and efficient tax administration, the IRS will allow taxpayers to treat the originally published $6,900 limit as the 2018 HSA family contribution limit.

Excess Contribution Tax Treatment if Employee Received Distribution Based on Earlier Limit

DOL, HHS, and Treasury Release Proposed FAQs on Mental Health Parity
The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively,
the “Departments”) released proposed FAQs About Mental Health and Substance Use Disorder Parity

Implementation and the 21st Century Cures Act Part XX.
The Departments respond to FAQs as part of implementing the Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

Generally, the MHPAEA requires that the financial requirements (for example, coinsurance and copays)
and treatment limitations (for example, visit limits) imposed on mental health or substance abuse disorder
(MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment
limitations that apply to substantially all medical/surgical benefits in a class.

Similarly, a group health plan or issuer cannot impose a nonquantitative treatment limitation (NQTL) on
MH/SUD benefits that is more stringent than a comparable limitation that is applied to medical/surgical
benefits.

The MHPAEA regulations include express disclosure requirements. For example, if a participant requests
the criteria for medical necessity determinations regarding MH/SUD benefits, then the plan administrator
must make the information available to the participant.

To assist plan sponsors with disclosure requests, DOL released a revised draft Mental Health and
Substance Use Disorder Parity Disclosure Request that plan sponsors may provide to individuals who
request information from an employer-sponsored health plan regarding treatment limitations.

To assist plan sponsors in determining whether a group health plan complies with MHPAEA, the DOL
released its Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act.

 

CMS Releases 2019 Parameters for Medicare Part D Prescription Drug Benefit
The Centers for Medicare and Medicaid Services (CMS) released the following parameters for the defined
standard Medicare Part D prescription drug benefit for 2019:


Generally, group health plan sponsors must disclose to Part D eligibility individuals whether the
prescription drug coverage offered by the employer is creditable. Coverage is creditable if it, on average,
pays out at least as much as coverage available through the defined standard Medicare Part D
prescription drug plan.

 

CMS Issues 2019 Benefit and Payment Parameters Final Rule
The Centers for Medicare and Medicaid Services (CMS) published its 2019 Benefit and Payment
Parameters final rule. The rule primarily affects the individual health insurance market inside and outside
of the Exchange, the small group health insurance market, issuers, and the states.

Within the rule, three items most directly affect employers and their group health plans:
• Maximum annual out-of-pocket limit on cost sharing for 2019
• New methods for changing state EHB-benchmark plans
• New requirements for employers and issuers participating in the Small Business Health Options
Program (SHOP) Marketplace

 

CMS Issues Transitional Policy Extension
The Centers for Medicare and Medicaid Services (CMS) issued a bulletin extending its transitional policy.

As background, in November 2013, CMS announced a transitional policy for non-grandfathered coverage
in the small group and individual health insurance markets. Under its policy, health insurance issuers may
choose to continue certain coverage that would otherwise be cancelled because of noncompliance with
Patient Protection and Affordable Care Act (ACA) and Public Health Service Act (PHS Act). Further,
affected small businesses and individuals may choose to re-enroll in such coverage.

Under its policy, non-grandfathered health insurance coverage in the small group and individual health
insurance markets will not be considered to be out of compliance with the following ACA and PHS Act
market reforms if certain criteria are met:
• Fair health insurance premiums
• Guaranteed availability of coverage
• Guaranteed renewability of coverage
• Prohibition of pre-existing condition exclusions or other discrimination based on health status,
with respect to adults, except with respect to group coverage
• Prohibition of discrimination against individual participants and beneficiaries based on health
status), except with respect to group coverage
• Non-discrimination in health care
• Coverage for individuals participating in approved clinical trials
• Single risk pool requirement

Under CMS’ transitional policy, states may permit issuers that have renewed policies under the
transitional policy continually since 2014 to renew such coverage for a policy year starting on or before
October 1, 2019. However, any policies renewed under this transitional policy must not extend past
December 31, 2019.

 

CMS Starts Assigning New Medicare Beneficiary Identifiers
The Centers for Medicare and Medicaid Services (CMS) started issuing new Medicare cards with a
Medicare Beneficiary Identifier (MBI) or Medicare number. The MBI will replace the Social Security
number-based Health Insurance Claim Number (HICN) for Medicare transactions such as billing, eligibility
status, and claim status.

New enrollees will be among the first to get these new cards. Current Medicare beneficiaries will get their
new cards on a rolling basis over the next few months.

Employers who are currently capturing the HICN for their active employee or retirees should update their
systems to accept the new MBIs.

 

IRS Releases FAQ on Employer Credit for Paid Family Medical Leave
The IRS released an FAQ that primarily reiterates the Tax Cuts an Jobs Act’s provisions that provide a
new federal credit for employers that provide paid family and medical leave to their employees.

The IRS explains that an employer must reduce its deduction for wages or salaries paid or incurred by the
amount determined as a credit. Also, any wages taken into account in determining any other general
business credit may not be used in determining this credit.

The IRS adds this definition of “paid family and medical leave” that, for purposes of the credit, includes
time off for:
• Birth of an employee’s child and to care for the child.
• Placement of a child with the employee for adoption or foster care
• To care for the employee’s spouse, child, or parent who has a serious health condition
• A serious health condition that makes the employee unable to perform the functions of his or
her position
• Any qualifying exigency due to an employee’s spouse, child, or parent being on covered active
duty (or having been notified of an impending call or order to covered active duty) in the Armed
Forces.
• To care for a service member who is the employee’s spouse, child, parent, or next of kin

The FAQ also explains that, in the future, the IRS intends to address:
• When the written policy must be in place
• How paid “family and medical leave” relates to an employer’s other paid leave
• How to determine whether an employee has been employed for “one year or more”
• The impact of state and local leave requirements
• Whether members of a controlled group of corporations and businesses under common control
are treated as a single taxpayer in determining the credit

 

CRS Publishes Federal Requirements on Private Health Insurance Plans
The Congressional Research Service (CRS) published Federal Requirements on Private Health
Insurance Plans, which summarizes federal requirements that apply to the private health insurance
market, including a table that indicates whether a particular federal requirement applies to a fully-insured
large group plan, fully-insured small group plan, self-funded plan, or individual coverage.

Question of the Month
Q. What are the penalties for failing to comply with Section 125 requirements, such as failing to follow a
cafeteria plan document’s terms?

A. An operational failure occurs when a plan fails to follow its cafeteria plan document’s terms. There are
several potential penalties for operational failures, including:
• Cafeteria plan disqualification
• Requiring the cafeteria plan to comply with Section 125 and its regulations, including reversing
transactions that caused noncompliance
• Imposing employment tax withholding liability and penalties on the employer regarding pre-tax
salary reductions and elective employer contributions
• Imposing employment and income tax liability and penalties on employees regarding pre-tax
salary reductions and elective employer contributions

5/15/2018

Download the full recap here.


Two opportunities created by association health plans

The new regulations around association health plans (AHPs) — which loosen restrictions for small businesses, franchises and associations — create two distinct opportunities in the benefits industry.

The first is for brokers, who will be crucial advisors to employers eligible for the new coverage options now available.

The second opportunity is for benefits and HR tech vendors, who will be instrumental in managing the transactional and administrative challenges that would otherwise hinder AHP success.

What challenges do association health plans represent? Let’s consider an example — the Nashville Hot Chicken restaurant franchise.

Let’s say Nashville Hot Chicken has 1,000 franchisees, each with five full-time employees. Before AHP options became available to this organization, these five-employee groups would either have had to pursue small group coverage, or employees would have had to find individual plans.

Both options likely would have been prohibitively expensive for the organization or the employees. With the new AHP regulations, however, these 1,000 franchisees may be able to pull all 5,000 workers together and create a large group benefits plan.

In doing so, they would reap the advantages of collective purchasing, just like large groups do. However, this AHP would not work like a regular group plan.

If a regular group has 5,000 employees, they would all be part of a centrally-operated payroll system and the insurance companies would receive just one check for all of the employees enrolled at the group. But under an AHP of franchisees, all the payroll systems would operate independently, and there is no clear, centralized entity to pay carriers.

This creates a massive administrative headache for Nashville Hot Chicken corporate, as well as all the individual franchise owners. In other words, who is going to manage the AHP?

Here’s where the brokers come in. Employers need brokers to walk them through all the complexities of AHPs, including sourcing carriers, third-party vendors, and compliance needs.

It would also be incredibly impractical to manage 5,000 employees through 1,000 separate businesses without a benefits and HR platform.

But brokers can provide a solution to this challenge by adopting a platform. With a benefits and HR system, the various administrative differences from franchisee to franchisee can be accounted for, while still allowing the 5,000-life group to enroll in the group offering.

By removing the administrative headache, benefits tech makes AHPs a real option for Nashville Hot Chicken. But it also gives the tech-savvy broker a clear leg up on the competition. A broker without a tech solution will be at a severe disadvantage for Nashville Hot Chicken’s business compared to a broker who has a platform.

So as small employers, franchisees and industry associations band together for group coverage, benefits tech can give brokers a competitive differentiator for this new business segment.

Read the article.

Source:
Tolbert A. (1 March 2018). "Two opportunities created by association health plans" [Web Blog Post]. Retrieved from address https://www.benefitspro.com/2018/03/01/two-opportunities-created-by-association-health-pl/


While Talk About Opioids Continues In D.C., Addiction Treatment Is In Peril In States

How is Washington handling the opioid crisis? Let's find out in this article from Kaiser Health News.


Opioids were on the White House agenda Thursday — President Trump convened a summit with members of his administration about the crisis. And Congress authorized funds for the opioid crisis in its recent budget deal — but those dollars aren’t flowing yet, and states say they are struggling to meet the need for treatment.

The Oklahoma agency in charge of substance abuse has been told by the state’s legislature to cut more than $2 million from this fiscal year’s budget.

“Treatment dollars are scarce,” said Randy Tate, president of the Oklahoma Behavioral Health Association, which represents addiction treatment providers.

It’s like dominoes, Tate said. When you cut funding for treatment, other safety-net programs feel the strain.

“Any cuts to our overall contract,” he said, “really diminish our ability to provide the case management necessary to advocate for homes, food, shelter, clothing, primary health care and all the other things that someone needs to really be successful at tackling their addiction.”

In just three years, Oklahoma’s agency in charge of funding opioid treatment has seen more than $27 million dollars chipped away from its budget — thanks to legislative gridlock, slashed state taxes and a drop in oil prices (with the additional loss in state tax revenue that resulted).

Jeff Dismukes, a spokesman for Oklahoma’s Department of Mental Health and Substance Abuse Services, says the already lean agency has few cost-cutting options left.

“We always cut first to administration,” he said, “but there’s a point where you just can’t cut anymore.”

The agency may end up putting off payments to treatment providers until July — the next fiscal year. Tate says that could be devastating.

“Very thinly financed, small rural providers are probably at risk of going out of business entirely — up to and including rural hospitals,” he said.

Getting treatment providers to open up shop in rural areas is really hard, even in good times, and more financial uncertainty could make that problem worse. In the meantime, according to an Oklahoma state commission’s opioid report, just 10 percent of Oklahomans who need addiction treatment are getting it.

That statistic is similar in Colorado. And as 2018 began, Colorado’s escalating opioid crisis got worse, when the state’s largest drug and alcohol treatment provider, Arapahoe House, shut its doors.

The facility provided recovery treatment to 5,000 people a year. Denise Vincioni, who directs another treatment center, the Denver Recovery Group, says other facilities have scrambled to pick up the patients.

Most of Arapahoe’s clients were on Medicaid. Autumn Haggard-Wolfe, a two-time Arapahoe House client who is now in recovery, worries the facility’s closing will have dire consequences, especially for people who need inpatient care, as she did.

“I feel like the only other option right now in therapy would be jail for people,” she said, “and people die in there from withdrawing.”

Arapahoe House’s CEO blamed its closure on the high cost of care and poor government reimbursement for services.

The mother of Colorado state lawmaker Brittany Pettersen struggled with addiction, and was treated at Arapahoe House. Pettersen says treatment centers rely on a crazy quilt of funding sources and are chronically underfunded — often leaving people with no treatment options.

“We have a huge gap in Colorado,” Pettersen said, “and that was before Arapahoe House closed.”

She is pushing legislation in the state to increase funding for treatment. But to get tens of millions of dollars in federal matching funds, Colorado lawmakers need to approve at least $34 million a year in new state spending.

That price tag may simply be too high for some lawmakers. But either way, she added, “It’s going to take a lot to climb out of where we are.”

Colorado did get new federal funds to fight the opioid crisis through the 21st Century Cures Act, passed in December of 2016, but it was just $7.8 million a year for two years — divvied up among a long list of programs.

Read the article.

Source:
 Daley J.,Fortier J. (5 March 2018). "While Talk About Opioids Continues In D.C., Addiction Treatment Is In Peril In States" [Web Blog Post]. Retrieved from address https://khn.org/news/while-talk-about-opioids-continues-in-dc-addiction-treatment-is-in-peril-in-states/

Compliance Bulletin: NLRB Reintroduces Indirect Joint Employer Standard

On Feb. 26, 2018, the National Labor Relations Board (NLRB) overruled the “direct control” joint employer standard adopted with the Hy-Brand decision and reintroduced the “indirect control” standard set out by the Browning-Ferris case.

The indirect control standard was adopted in 2015 and established joint employer status for employers that had “sufficient” control over a worker’s essential terms and conditions of employment, regardless of whether the employer actually exercised its right of control.

ACTION STEPS

The reintroduced standard may have a large impact on National Labor Relations Act (NLRA) compliance across many industries. Because there is not a clear limit as to where liability ends based on this standard, the list of potential joint employers for any given operation may be increased and can noticeably change the way franchises, staffing agencies and seasonal employers operate.

Employers should review their partnerships with other entities with which they share employees to determine whether they are affected by this NLRB decision.

The NLRA and Joint Employment
The NLRA applies to workplaces with labor unions. However, certain provisions of the NLRA also apply to non-unionized workplaces. Joint employer situations can present a complicated scenario when evaluating compliance with the NLRA.

Among other things, the NLRA protects workers from employer retaliation when workers engage in protected concerted activities. Workers engage in protected concerted activities when they join together to improve their wages and working conditions. The key to determining whether an employee has engaged in a protected concerted activity is whether the worker was acting for the benefit, or on behalf, of others and not solely for his or her personal interest. Workers do not need to formally agree to act as a group or designate a representative to participate in concerted activities.

Concerted activities can include spontaneous, uneventful actions such as a discussion of working conditions and wages or questioning a supervisor on a company policy. In that sense, the NLRA protects any employee who:

  • Addresses group concerns with an employer;
  • Forms, joins or helps a labor organization;
  • Initiates, induces or prepares for group action; or
  • Speaks on behalf of or represents other employees.

Download the Full Bulletin


Change to 2018 HSA Family Contribution Limit

Yesterday, the IRS released a bulletin that includes a change impacting contributions to Health Savings Accounts (HSAs).

 

  • The family maximum HSA contribution limit has decreased from $6,900 to $6,850.
  • This change is effective January 1, 2018 and for the entire 2018 calendar year.
  • The self-only maximum HSA contribution limit has not changed. 
  • This means that current 2018 HSA contribution limits are $3,450 (self-only) and $6,850 (family).

 

Why is the change happening so abruptly?

 

The IRS continues to make adjustments to accommodate the new tax law that passed at the end of 2017. Tax reform updates require the IRS to implement a modified method of calculating inflation-adjusted or cost-of-living-adjusted limits for 2018. The IRS is now using a different index (Chained Consumer Price Index for All Urban Consumers) to calculate benefit-related inflationary adjustments.

 

Typically, the IRS adjusts the HSA limits for inflation on an annual basis about six months before the start of the impacted year. For example, the IRS established the 2018 limits in May 2017. Today’s bulletin supersedes those limits.

Resource:

• IRS Bulletin IRB 2018-10March 5, 2018


HRL - White - House

Compliance Recap - January 2018

January was a busy month in the employee benefits world. On January 24, 2018, the U.S. Senate confirmed Alex Azar as the new Secretary of the U.S. Department of Health and Human Services (HHS).

The U.S. Department of Labor (DOL) proposed regulations regarding association health plans. HHS released the 2018 federal poverty guidelines. The DOL issued updated civil monetary penalties for 2018 and announced the applicability date for final regulations regarding disability claims procedures. A U.S. District Court modified its order regarding the Equal Employment Opportunity Commission's wellness regulations.

Congress and the President delayed the Cadillac tax's effective date, delayed the health insurance tax (HIT), and reauthorized the Children's Health Insurance Program. The Internal Revenue Service (IRS) released its Employer's Tax Guide. HHS issued a proposed rule to protect conscience rights in health care and created a new Conscience and Religious Freedom Division within HHS' Office of Civil Rights.

UBA Updates

UBA released seven new advisors in January:

UBA updated existing guidance: 2018 Annual Benefit Plan Amounts

DOL Issues Proposed Regulations Regarding Association Health Plans

The U.S. Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) issued a proposed rule which would broaden the definition of "employer" and the provisions under which an employer group or association may be treated as an "employer" sponsor of a single multiple-employer employee welfare benefit plan and group health plan under Title I of the Employee Retirement Income Security Act of 1974 (ERISA).

The DOL posted 79 letters that were submitted as public comments as of January 31, 2018. The deadline for submitting public comments is March 6, 2018.

Read more about the proposed rule.

HHS Releases 2018 Federal Poverty Guidelines

The U.S. Department of Health and Human Services (HHS) released the 2018federal poverty guidelines (FPL). For a family / household of one in the contiguous United States, the FPL is $12,140. In Alaska the FPL is $15,180, and in Hawaii the FPL is $13,960.

For 2018, applicable large employers that wish to use the FPL affordability safe harbor under the employer shared responsibility / play-or-pay rules should ensure that their lowest employee-only premium is equal to or less than $96.72 a month, which is 9.56% of the 2018 FPL.

Civil Monetary Penalties Inflation Adjustment for 2018

The U.S. Department of Labor (DOL) published its civil monetary penalties for 2018. Under federal law, the DOL is required to annually adjust its regulations' civil monetary penalties for inflation no later than January 15 of each year. The adjusted penalty amounts are effective for violations occurring after November 2, 2015, that have penalties assessed after January 2, 2018.

Below are some examples of the increases.

Description 2017 Penalty Amount 2018 Penalty Amount
Failure to file Form 5500 $2,097 per day $2,140 per day
Failure to provide the Summary of Benefits and Coverage (SBC) $1,105 $1,128
Failure to provide documents requested by the DOL $149 per day, not to exceed $1,496 per request $152 per day, not to exceed $1,527 per request
Failure to inform employees of children's health insurance program (CHIP) coverage opportunities; each employee is a separate violation $112 per day $114 per day

 

DOL Issues Final Disability Claims Procedures Regulations' Applicability Date

The U.S. Department of Labor (DOL) announced that April 1, 2018, will be the applicability date for its rule that amends the claims procedure requirements of ERISA-covered employee benefit plans that provide disability benefits. The DOL'sFact Sheet contains a summary of the regulation's requirements.

U.S. District Court Modifies Order Regarding EEOC Wellness Rules

In August 2017, the United States District Court for the District of Columbia heldthat the U.S. Equal Employment Opportunity Commission (EEOC) failed to provide a reasoned explanation for its decision to adopt 30 percent incentive levels for employer-sponsored wellness programs under both the Americans with Disabilities Act (ADA) rules and Genetic Information Nondiscrimination Act (GINA) rules.

In December 2017, the court vacated the EEOC rules under the ADA and GINA effective January 1, 2019, and ordered the EEOC to promulgate any new proposed rules by August 31, 2018.

In January 2018, the EEOC asked the court to reconsider the portion of the court's order that required the EEOC to promulgate new proposed rules by August 31, 2018. The court vacated that portion of its order. The court's order to vacate the portions of the EEOC's wellness rules under the ADA and GINA as of January 1, 2019, remains.

Read more about the court's order.

Congress Delays Cadillac Tax Effective Date, Delays HIT Tax, and Reauthorizes CHIP

Congress and the President passed H.R. 195, a short-term spending bill. The bill delays the effective date of the excise tax on high cost employer-sponsored health coverage ("Cadillac tax") to 2022. The bill delays the health insurance tax (HIT) that applies to insurers. The HIT was in effect in 2014, 2015, and 2016, and will be in effect for 2018. Now the HIT will be delayed from 2019 to 2020; essentially, the bill implemented a one-year moratorium for the HIT for 2019. The bill also reauthorizes the Children's Health Insurance Program (CHIP) for six years.

IRS Issues 2018 Employer's Tax Guide

The Internal Revenue Service (IRS) issued its Publication 15 (Circular E) Employer's Tax Guide that discusses employers' tax responsibilities. The guide generally discusses health insurance plans, health savings accounts, and medical care reimbursement.

HHS Issues Proposed Rule to Protect Conscience Rights in Health Care

The U.S. Department of Health and Human Services (HHS) published a proposed rule titled "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority."

HHS proposes this rule pursuant to President Trump's May 4, 2017, Executive Order 13798 "Promoting Free Speech and Religious Liberty" and the U.S. Attorney General's October 6, 2017, "Federal Law Protections for Religious Liberty"memorandum.

HHS proposes this rule to enhance awareness and enforcement of federal health care conscience laws and associated anti-discrimination laws, to further conscience and religious freedom, and to protect the right to abstain from certain activities related to health care services without discrimination or retaliation.

The rule cites several federal health care conscience laws and the activities that they protect, including:

·    The Church Amendments: conscience protections related to abortion and sterilization

·    The Coats-Snowe Amendment: conscience protections related to abortion, training, and accreditation

·    The Weldon Amendment: protections against discrimination for health care entities and individuals who do not further abortion or other services

·    HHS' 2011 final rule that enforces the Church, Coats-Snowe, and Weldon Amendments

·    The Consolidated Appropriations Act of 2017: protections from discrimination for health care entities and individuals who object to furthering or participating in abortion under programs funded by HHS' annual appropriations

·    The Patient Protection and Affordable Care Act: conscience protections related to assisted suicide, abortion, and the individual mandate to maintain minimum essential coverage

·    The Assisted Suicide Funding Restriction Act of 1997: protections for Medicare or Medicaid program providers and their employees from informing individuals about a right or service related to assisted suicide and from applying any advance directive term related to assisted suicide

·    Medicare and Medicaid: protection from being compelled to provide, reimburse for, or cover any counseling or referral service over a moral or religious objection

·    Global health program conscience and anti-discrimination protections

·    Exemptions from compulsory health care or services generally and under specific programs for hearing screening, occupational illness testing, suicide assessment or treatment services, vaccination, and mental health treatment

·    Conscience clauses related to religious nonmedical health care in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP).

The proposed rule aims to revise the current regulatory framework of federal health care conscience protection statutes to a more robust regulatory framework similar to those that implement and enforce other civil rights laws.

To do so, the proposed rule would require written assurances and certifications of compliance with federal health care conscience and associated anti-discrimination laws as part of accepting federal financial assistance from HHS. The proposed rule would also require HHS and certain recipients to post a notice to the public, patients, and employees of their protections under the federal health care conscience and associated anti-discrimination statutes, including how to file a complaint with HHS' Office of Civil Rights (OCR). The proposed rule's Appendix A provides the notice's text. Further, the proposed rule would require recipients to report information about OCR investigation notices and compliance review letters to their applicable HHS funding source and to disclose complaints filed with OCR when applying for new or renewed federal financial assistance from HHS.

The proposed rule details OCR's authority to conduct outreach, provide technical assistance, initiate compliance reviews, receive and process complaints, and conduct investigations. The proposed rule grants OCR discretion to choose its means of enforcement, which will range from informal resolution to funding termination. The OCR may also refer cases to the U.S. Department of Justice for enforcement.

Public comments are due by March 27, 2018.

HHS Creates New Conscience and Religious Freedom Division

The U.S. Department of Health and Human Services (HHS) announced the new Conscience and Religious Freedom Division (CRFD) within HHS's Office of Civil Rights (OCR). According to HHS' press release, the CRFD will restore federal enforcement of laws that protect the rights of conscience and religious freedom. CFRD's website includes instructions on how to file a conscience or religious freedom complaint with OCR.

Question of the Month

Q. Can an employer exclude children from coverage based on a child's access to other coverage, employment status, or marital status?

A. No, if a group health plan provides dependent coverage, then the plan must generally make coverage available for children until age 26. These group health plans must not define dependent, for purposes of dependent coverage, in terms other than the relationship between the child and the plan participant.

This means that a plan cannot use items such as a child's access to other coverage, employment status, marital status, tax dependent status, residency, or student status to define dependent.

Also, if the employer is an applicable large employer, then it must offer coverage to its full-time employees' dependent children to avoid penalties under the employer shared responsibility provisions.


IRS Issues New Tables for 2018 Tax Withholding

Starting Feb. 15, 2018, employers must use new tables to determine how much income tax to withhold from their employees’ paychecks. The Internal Revenue Service (IRS) issued the required new tables, in Notice 1036, on Jan. 9, 2018. The notice contains early release copies of the “Percentage Method Tables for Income Tax Withholding” that will appear in IRS Publication 15 (Employer’s Tax Guide).

According to the IRS, Notice 1036 is the first in a series of steps that the agency will take to help employers improve the accuracy of their tax withholdings under changes made by a new tax reform law, the Tax Cuts and Jobs Act, enacted on Dec. 22, 2017.

New Tables Work with Existing Forms W-4 for 2018

The new tables in Notice 1036 are designed to work with the Forms W-4 that employees have already filed with their employers to claim withholding allowances for 2018. Thus, employers do not need to obtain updated Forms W-4 from their employees to start using the new tables.

For 2019, however, the IRS is revising Form W-4 to more fully reflect the new law and to help individuals determine whether to adjust their withholding. Once released, the revised Form W-4 can be used in 2018 by employees starting a new job and by existing employees who wish to update their withholding in response to the new law or changes in their personal circumstances. Until the revised Form W-4 is released, employees and employers should continue to use the 2017 Form W-4.

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DOL Announces New Standard for Unpaid Interns

On Jan. 5, 2018, the U.S. Department of Labor (DOL) announced that it would adopt a new standard for determining whether interns and students are “employees” who must be paid under the Fair Labor Standards Act (FLSA).

The DOL clarified that, going forward, it would abandon its six-part test and instead adopt the “primary beneficiary” test used by federal courts.

The six-part test provides that an intern at a for-profit company is an employee unless all six factors of the test are met. The primary beneficiary test has a more flexible approach, focusing on whether the intern or the business benefits more from the relationship.

The Old Six-part Test

The six-part benefit test is very specific and allows for interns to be unpaid only if all of the following factors are met:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and, on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Primary Beneficiary Test

The primary beneficiary test looks at the “economic reality” nature of the employment relationship and includes seven factors to consider. However, unlike the six-part test, these factors provide only a reference frame to determine who is benefiting more from the intern-employer relationship.

The seven factors are:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Not every factor must be met, and not all factors must be given the same weight during the analysis. Instead, the courts will consider these seven factors and evaluate whether, in the totality of the circumstances, the employer is benefiting more from the relationship than the intern is. When an employer is the primary beneficiary of the relationship, the intern is an employee for purposes of the FLSA. When the intern is the primary beneficiary, he or she is not considered an employee under the FLSA.

More Information

Please contact Hierl Insurance Inc. for more information about compliance with FLSA issues.

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