Employee wellness programs and compliance: What to know right now

Do you know whether your wellness plan is “purely participatory” or “health-contingent?” Under the Health Insurance Portability & Accountability Act (HIPAA) current guidance, employers need to assess whether the plan is “purely participatory” or “health-contingent.” Read on for more.


Defining “wellness” for any one person is no simple task, and neither is deciphering a given wellness program’s compliance under the law.

In 2016, when the Equal Employment Opportunity Commission (EEOC) released its final regulations defining a “voluntary” program under the Americans with Disabilities Act (ADA), the entire landscape — at least what can be seen on a hazy day — appeared defined. But thanks to AARP’s successful challenge to these regulations and the EEOC’s recent acknowledgment of the demise of its incentive limitations, employers find themselves back in the “Wild West” of sorts for wellness compliance.

That being said, the uncertainty is not new for employers with wellness programs, and there is now more guidance than before, so let’s take a moment to take in the current view.

The current guidance under the Health Insurance Portability & Accountability Act (HIPAA) remains unchanged, so any wellness program integrated with a health plan or otherwise constituting a health plan itself, employers need to assess whether the plan is “purely participatory” or “health-contingent.” The health-contingent plans (which condition the award of incentives on accomplishing a health goal) will require additional compliance considerations, including—but not limited to—incentive limitations, reasonable alternative standards (RAS), and notice requirements.

The RAS should be of particular importance because they can be missed most out of the compliance parameters. Often there is an “accidental” program such as a tobacco surcharge, and the employer does not even realize the wellness rules are implicated, or the employer’s RAS is another health-contingent parameter that actually necessitates another RAS.

The Department of Labor is actively enforcing compliance in this area, so employers will want to take care.

Additionally, the EEOC’s ADA (and Genetic Information Nondiscrimination Act) regulations are still largely in force. This seems to be a common misconception—ranging from a celebration of no rules to a lament for the end of incentivized wellness programs that include disability-related questionnaires (like an average health risk assessment) or medical examinations (including biometric screenings).

The truth is somewhere in the middle.

The ADA’s own RAS and notice concepts still apply, along with confidentiality requirements. All that has changed is that the EEOC has declined (again) to tell us at what point an incentive turns a program compulsory. So employers sponsoring wellness programs subject to the ADA have three choices, based on risk tolerance (In truth, there are four options, but charging above the ADA’s previous incentive limitations would be excessively risky):

  • Run incentives for ADA plans up to the 30 percent cap that existed before. This is the riskiest approach. To take this route, an employer must rely upon HIPAA’s similar (though not exactly the same) incentive limitations as indicative of non-compulsory levels. The fact that Judge Bates did not accept this argument in the AARP case advises against this approach, but this case does not have global application. If this path is chosen, it will be imperative to document analysis as to why this incentive preserves voluntariness for your participants.
  • Keep the incentives below the previous 30 percent cap but incentivize the program. This approach does have risk because no one knows at what point an incentive takes choice away from participants. However, the incentive is a useful tool to motivate and reward health-conscientious behavior. The wellness incentive limitations stood at 20 percent under the HIPAA regulations for quite some time without much concern, so this could be a relatively safe target. But the most important thing is to carefully assess the overall structure of the program(s) offered, consider the culture and demographics of the employees who may participate, and balance the desire to motivate against the particular tensions of the program to decide on a reasonable incentive. Make sure to document this analysis and reconsider it every time a program changes.
  • Not incentivize the program at all. This is the most conservative approach from a compliance perspective but ultimately not required. Before the EEOC’s 2016 regulations, employers were incentivizing programs subject to the ADA, and nothing about the AARP case or the EEOC’s response to it prohibits incentives.

There’s no doubt the wellness compliance landscape has changed a little over this last year, but this is also just the tip of the iceberg. With enforcement heating up, it is imperative for employers to carefully consider compliance, document the reasonableness of incentive choices and lean on trusted counsel when necessary to avoid potentially costly and time-consuming issues.

SOURCE: Davenport, B. (13 February 2019) "Employee wellness programs and compliance: What to know right now" (Web Blog Post). Retrieved from https://www.benefitspro.com/2019/02/13/employee-wellness-programs-and-compliance-what-to-know-right-now/


Hospital pricing transparency: More information, more confusion?

A new ruling on hospital pricing transparency now requires that hospitals provide a list of their prices for all of the services and medications they provide. Continue reading this blog post to learn more about this ruling.


As of the first of this year, a new rule is in effect that requires hospitals to list the price for all the services they provide and medications they prescribe for patients while they’re in the hospital. In theory, this should give patients more information that can help them decide where it makes the most economic sense to receive hospital care. In actuality, while there’s a wealth of new data available, it can be difficult to find — and nearly impossible for people outside the healthcare industry to understand.

The document that aggregates the price information is called a chargemaster, and it can contain tens of thousands of entries. The new rule doesn’t require that the information be written in plain language, only that it be machine readable, so much of the data reads like it’s in a yet-to-be-discovered language. For example, if you download Memorial Sloan Kettering’s chargemaster, you’ll find an Excel spreadsheet that contains 13,088 entries such as “CAP MALE/FEMALE RAIL, $765” and “BX SUBCUT SKIN/INC, $1,771.” Even if a patient puzzles out the meaning of these abbreviations, the prices listed are different from the lower fees that insurers negotiate, so estimating how much you would pay for care is complicated at best and impossible at worst.

The goal of the hospital pricing transparency rule is to help patients understand the cost of their care and choose more wisely when deciding where to receive that care. Unfortunately, the information that is now available adds to the confusion and doesn’t help patients make one-to-one price comparisons when choosing where to receive care. In addition, the rule only covers care delivered by a hospital, so patients don’t have the information they need to make price comparisons for services performed in doctor’s offices, urgent care facilities, diagnostic test sites and outpatient surgical centers.

Though the new rule generally doesn’t help employees, employers can.

Even if price transparency doesn’t help workers better understand the cost of care and choose where to receive that care, there are strategies and resources that employers can provide to help their employees make more informed decisions about healthcare. Here are some of them.

Second opinions. Wrong diagnoses, inappropriate treatments (treatments that don’t meet the evidenced-based standard of care) and medical errors all drive up healthcare costs for both employers and employees and can lead to poorer health outcomes. One strategy to lower the risk of these types of problems is providing employees with streamlined access to second opinions from experienced physicians.

A second opinion can confirm or change an employee’s diagnosis, suggest other treatment options and pinpoint misdiagnoses, especially in the case of serious and complex conditions like cancer, autoimmune disease and back and joint problems. In fact, a Mayo Clinic study found that 88% of people who sought a second opinion from the hospital’s physicians for a complex medical condition received a new or refined diagnosis. Employers can make second opinions available to employees through several channels, including a health insurance plan or as a standalone benefit.

Care coordination. Duplicate testing and medical care is another source of wasted healthcare dollars. When communication between healthcare providers is inconsistent or medical records aren’t updated and shared among all treating physicians, employees may undergo repeat testing — for example, when a primary care physician and a cardiologist both order a cardiac stress test for a patient with shortness of breath. Employers can offer care coordination through a case manager for employees who are living with multiple health conditions.

This support can lower the risk of duplicative testing as well as duplicate prescriptions or medications that can result in interactions, which can put an employee’s health needlessly at risk. Another piece of this equation is the review and coordination of medical records, which is especially important when employees see multiple physicians. A medical records management service should include a review of the employee’s records by an RN or physician, consolidation of a comprehensive medical record, and the creation of a secure electronic medical record that can be shared with the employee’s permission with all treating physicians.

Guidance on where to receive care. While you can undergo a colonoscopy, medication infusion or a range of common surgical procedures at a hospital, that may not always be the most appropriate or cost-effective place to receive care. By offering employees the ability to talk with a care manager or adviser about the procedure they need and the options for where they can receive that care (a hospital, outpatient surgery center or doctor’s office), employers can help them receive the care they need and lower both claims costs and employee out-of-pocket costs.

Medical bill review. Another resource employers can offer to make sure healthcare costs are carefully managed is a medical bill review. Experts estimate that between 30% and 80% of medical bills contain errors that increase costs. There are many different causes of these errors, including the use of the incorrect billing codes and use of out-of-network healthcare providers. In addition to offering employees the services of a medical billing review and negotiation firm, they can provide education that lets employees know what types of errors are commonly made and how to spot them on their own bills.

SOURCE: Varn, M. (13 February 2019) "Hospital pricing transparency: More information, more confusion?" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/hospital-pricing-transparency-more-information-more-confusion?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001


Goodbye group benefits. Hello personalized pay

With diverse expectations about pay and benefit packages, off-the-shelf benefit options are presenting employers with a challenge. Continue reading to learn more about benefit and pay expectations.


In the past, it was typical for a company to provide all employees with access to the same group benefits — regardless of their age, demographics or education level. From health insurance to retirement plans and paid time off, these uniform benefit packages were designed to meet the needs of the entire workforce in one fell swoop.

But over the past few years, these off-the-shelf benefit options have presented a bit of a challenge. With five generations now in the workplace — Gen Z, Millennials, Gen X, Baby Boomers and the silent generation — there are diverse expectations about pay and benefit packages.

For example, baby boomers and the silent generation tend to value health insurance and a robust retirement plan. Meanwhile, Gen X workers seek a healthy work-life balance, advancement opportunities and a competitive 401(k) — or a retirement savings plan that lets you set aside and invest money from your paycheck, to which your employer can then contribute. Millennials and Gen Z prioritize flexibility — they want more paid time off, the ability to work when and where they wish and tuition reimbursement.

There is no one-size-fits-all compensation package that can fairly satisfy each generation of workers. Employees today want to feel heard, understood and cared for by their employer. Furthermore, most want a job that fits with their personal interests and lifestyle.

As a result, companies are moving away from traditional group benefits and taking a more personalized approach to compensation.

Many organizations are using social listening tools, focus groups and surveys to gather information about the types of benefits employees want. Others are taking it a step further and having one-on-one conversations to determine what motivates each individual worker and provides them with a sense of purpose at work. How else will we know what, specifically, each employee wants unless we ask them?

By collecting this information, organizations can tailor packages that effectively meet the varying wants and needs of the diverse workforce. They’re offering mixes of pay, bonuses, flex time, paid time off, retirement plans, student loan repayment assistance and professional growth opportunities. Some companies have designed an a la carte menu of benefits, with which employees can pick and choose the perks they care most about.

According to a recent survey conducted by WorldatWork and KornFerry, organizations also are offering more non-traditional benefits that can further acknowledge employees’ concerns and responsibilities outside of work. Eldercare resource and referral services, women advancement initiatives and disaster relief funds all became significantly more prevalent in employee benefits programs within the last year. Telemedicine, identity theft insurance and paid parental leave offerings increased as well.

And many organizations are taking innovation one step further. One firm recently introduced a new benefits reward program in which employees earn points based on both personal and company-wide achievements and then cash them in for perks across various categories: health and wellness, travel, housing, transportation, time off, annual grocery passes — you name it. The purpose is to give employees the power to choose the types of perks that mean the post to them.

Personalized pay can boost attraction and retention

The unemployment rate is the lowest it’s been in decades, and the war for talent is extremely tough. The average tenure for workers is 4.6 years. For millennials, it’s half that.

This sort of high employee turnover can take a massive toll on a company’s bottom line: Experts estimate that it can cost up to twice an employee’s salary to recruit and train a replacement. Not to mention, employee churn can damage company morale and tarnish your company’s reputation.

Customized pay and benefits plans can make an employer be more attractive in a tight, crowded job market. If you want to not only attract top talent but retain them as well, it’s worth taking the time to understand what matters to your candidates and offering them personalized pay and reward packages.

Organizations need to introduce more flexibility into their pay packages and adapt to the needs of the changing workforce. After all, when you invest in your employees, you invest in the overall success and performance of your business.

SOURCE: Wesselkamper, B. (11 February 2019) "Goodbye group benefits. Hello personalized pay" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/tailored-employee-benefit-plans-gaining-popularity


With the Advent of Remote Work, Is the ‘Sick Day’ Becoming Passé?

Do your remote workers take sick days when needed? With many employees working from home full time, the idea of a sick day could become out of date. Continue reading this post from SHRM to learn more.


Your advertising manager works from home full time. She has a nasty cold. But hey—she only needs to walk a few steps from her bedroom to her desk, can nap when she needs to and won't infect her colleagues. So she doesn't really need to take a sick day, right?

Well, she probably should, but as remote work continues to rise, workplace experts find that those who do their jobs from home are inclined to stay on the clock while soldiering through colds, the flu and other maladies—in part because they don't want to appear to be taking advantage of their work-from-home benefit.

"Remote workers find it hard to integrate work with the rest of their life because it is so easy to overwork and even plow through your work while you are sick," said Jeanne Meister, founding partner of Future Workplace, a New York City-based HR executive network and research firm. "If you are only traveling from your bedroom to your home office, remote workers may rationalize, 'What harm can be done if I work while I am sick? At least I'm not contagious.' "

In addition, the advent of remote working has introduced another trend: managers suggesting that onsite employees work from home when they're sick.

"It's no secret that many [workplaces] have cultures that encourage the 'always-on' mentality," said Erica Denner, head of people and culture at YouEarnedIt/HighGround, an Austin, Texas-based company that focuses on employee recognition, rewards and performance management. "In my experience, I've found that because of this, employees at these organizations can find it difficult to ask for time off when they're sick and are often encouraged to work from home instead."

Circumstances Matter

Thanks to technology that facilitates remote work, there are instances when working during what otherwise would have been a sick day may actually be a win for the employee and employer.

"There are all kinds of reasons to take sick days," said Ellen Galinsky, president of the Families and Work Institute and a senior research advisor for the Society for Human Resource Management. "If employees have a condition that affects their ability to be mobile, like a broken bone or torn tendon, they might have to take a sick day if they work in a traditional workplace because travel to work would be difficult, but they could easily work at home. I can think of other such illnesses, such as having something contagious and not wanting to infect others but feeling good enough to work or being postoperative and being able to work in short spurts. Working at home could be ideal for that."

Consider U.S. Supreme Court Justice Ruth Bader Ginsburg, who recovered from cancer surgery at home but nonetheless heard arguments in a case before the court. A court spokesperson said Ginsburg would participate "on the basis of briefs, filings and transcripts," CNBC reported.

But if working while ill prevents an employee from fully resting and recuperating, this will likely hinder performance—and even future productivity and morale.

"If an employee is really sick, he or she might power through and get a few things done but might not do them well," Galinsky said.

Working through your cold, sore throat or flu not only can lead to a decline in physical well-being but "also can present mental health challenges," Meister said.

Contractors, or so-called gig workers, in particular, may be wary of taking sick time. Lacking job security, they may fear that doing so would make them appear dispensable to their employers.

What Employers Can Do

To discourage employees from avoiding sick days because they're working remotely:

Communicate to employees that you expect them to take time off when they're sick. Or, encourage them to be open about how much work, if any, they feel they can accomplish. "If you can't produce high-quality work, even from the comfort of your own home, when you're under the weather, relay that message to your manager," Denner said. "If they value your contributions and are a good supervisor, they will understand and step in to help until you're feeling better."

At YouEarnedIt/HighGround, workers are asked to make it clear when they are out sick and unavailable. This includes setting up not only the typical out-of-office notification by e-mail but also notifications across productivity platforms the company uses, such as Slack. "It's remarkable how effective turning on the 'out sick' emoji in Slack is in terms of alerting colleagues you need time to recover," Denner said. "When employees are out on a longer-term medical leave, we actually remove their technology access so they can't check e-mails or Slack. This way, the employee doesn't feel guilty or obligated to respond to messages."

Talk about the importance of taking sick days for one's physical and mental well-being. Bring up the topic during all-hands meetings with onsite as well as remote workers. In benefits materials and handouts, address the importance of taking sick days.

Ensure that managers and executives take sick days themselves. When a boss shows up at a meeting sniffling and coughing, she sends the clear message that work is too important to be interrupted by illness. And that only leaves her subordinates feeling guilty if they take sick days.

"We've found that [modeling sick-day behavior] actually goes a long way in not just encouraging our employees to do the same, but also in further solidifying a culture of trust and respect," Denner said.

Encourage remote workers to take time for themselves even when they're healthy—such as taking a midday break—and reinforce how this is important for their well-being and productivity.

SOURCE: Wilkie, D. (6 February 2019) "With the Advent of Remote Work, Is the ‘Sick Day’ Becoming Passé?" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/remote-workers-and-sick-days-.aspx


Move over mainstream: Alternative health options a road to better value

Employers are seeking alternative ways to get a better value when it comes to their healthcare spending. Read this blog post to learn more about alternative health options.


While employers may be the largest purchasers of healthcare outside of the federal government, rarely does one organization have enough influence when negotiating with the powerful health plans and provider systems. As a result, employers — and ultimately the consumers for whom they purchase healthcare services — pay the price.

Instead of taking these lumps of coal sitting down, there are a growing number of employers on the cutting edge of healthcare purchasing seeking alternative ways in 2019 to get better value for their healthcare spending. They are looking for the diamonds in the rough.

In more than half of the healthcare markets in the U.S., providers have merged reducing competition and leaving employers and consumers with little choice for their care. Employers must stop insisting that health insurance products provide access to the broadest network of healthcare providers — if providers know they’ll be kept “in network” no matter how they behave, employers and payers further reduce their negotiating position. Employers also should band together to be sizable enough to call the shots, but this rarely happens.

While this lack of market power and influence is a major frustration for employers, it’s far from the only one. Educated employers also know that the healthcare system produces uneven quality and high prices have nothing to do with excellent care. The amount an employer pays for a service merely represents the relative negotiating strength of the health insurance carriers and providers.

As prices continue to drive healthcare cost growth, Americans are finding their healthcare unaffordable and are willing to trade choice for affordability. Many Americans no longer view having the ability to pick any doctor they choose as essential if it means increased premiums and cost-sharing that comes at the expense of other basic needs. These shifting attitudes represent an opportunity for employers seeking diamonds to pursue the following new healthcare benefits options. Here are some.

Narrow networks: Health insurance plans built around a narrower network that cuts out care providers who are outlandishly expensive or have a particularly poor record on quality. Alternatively, center a smaller network around a direct contract with an accountable care organization selected for its potential to deliver higher quality and value. More commercial health insurance carriers and lesser known third-party administrators are offering and supporting these options. Premiums and cost-sharing are typically lower for the consumer than with broader network plans.

Centers of excellence (CoE): Steer patients to designated high-quality providers with expertise in a given medical area who are willing to enter into an alternative payment arrangement or offer a more reasonable price in return for more patients. Make CoEs attractive through more generous coverage or make them mandatory if employees want an elective or non-emergent procedure (e.g., bariatric or spine surgery). Either way, employers reduce the risk that employees will receive subpar or low value care.

Alternative sites of care: Increase access to and use of alternative sites of care including onsite or near-site clinics and telehealth services. These enhance the convenience of primary or behavioral healthcare for employees and can help the employer better control referrals to overpriced hospitals or specialists.

So, move over mainstream. When it comes to the tactics employers use to purchase healthcare, alternative is likely to become less fringe. Narrow networks, CoEs or alternative sites of care may not solve all of the frustrations. But employers’ pursuit of these new models sends a strong signal that lumps of coal aren’t going to cut it. Employers are on the hunt for a shinier, more attractive set of solutions.

SOURCE: "Move over mainstream: Alternative health options a road to better value" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/move-over-mainstream-alternative-health-options-a-road-to-better-value?brief=00000152-1443-d1cc-a5fa-7cfba3c60000


Why chiropractic services could be the next big thing in wellness

Chiropractic services could be the next popular wellness perk for employer-sponsored benefit plans. The American College of Physicians' care guidelines recommends the conservative, non-pharmacologic treatment chiropractors provide. Read on to learn more.


The next popular wellness perk could be offering chiropractic services at on-site medical centers.

On-site or near-site clinics typically offer services to employees including first aid, occupational health, condition management, wellness and ancillary services — and increasingly chiropractic care.

Employees, healthcare administrators and physicians are recognizing the health and employee satisfaction benefits of integrating chiropractic care into multidisciplinary settings, research suggests. Care guidelines from the American College of Physicians recommend the conservative, non-pharmacologic treatment chiropractors provide. Employers are finding that adding chiropractic care to their worksite health center teams reduces direct costs of care, decreases opioid prescriptions for neuro-musculoskeletal episodes and improves health outcomes.

Healthcare costs for employers are expected to reach $15,000 per employee in 2019, according to the National Business Group on Health. The direct and indirect costs associated with low back pain are estimated between $85 billion and $238 billion, and expenditures for back pain are rising more quickly than overall health expenditures. To help stem that growth, as many as 65% of large companies are expected to offer on-site or near-site care by 2020, NBGH reports.

Employer focus on improving workers’ health and wellness has gained momentum in recent years, as evidenced by last year’s announcement from Amazon, Berkshire Hathaway and JPMorgan Chase that they would form an independent healthcare company for their U.S. employees. Another example is employers with self-funded health plans contracting with narrow, high-quality provider networks and even negotiating directly with local hospitals on their prices.

Clinics offer similar cost control and oversight benefits. More importantly, they offer faster and easier access to care that keeps employees healthy, motivated and engaged — and out of the emergency room or hospital. As such, 54% of large employers currently offer on-site or near-site clinics, while another survey showed that 94% of employers reported their clinics improved employee health and 95% said they contributed to increased employee productivity.

Each clinic’s services, cost-sharing, use privileges and staffing can be customized to meet the needs of a specific organization and employer benefit plans. These decisions should be reflective of the objectives of the sponsoring employer and the healthcare needs of the population.

While most healthcare clinics are located on-site or close to the workplace, a growing number are near-site or shared clinic locations, serving populations from multiple locations of the same employer or various employers. Additionally, more care is being delivered virtually. The objective is to provide easy access and immediate attention for employees, at little or no cost, for a host of services and products that an employee would normally have to leave the work site to obtain.

According to a recent survey by the National Association of Worksite Health Centers, the majority of employers reported their workers had expressed interest in chiropractic services at their clinics. The nationwide cost for treatment and management of low back pain and arthritis has reached $200 billion annually. Another study attributes two-thirds of these costs to lost wages and reduced productivity.

The fact that chiropractors deliver drug-free therapies should be particularly meaningful to employers in light of the country’s opioid abuse epidemic. The good news is a recent study published in “The Journal of Alternative and Complementary Medicine” concludes that for adults receiving treatment for low back pain, the likelihood of filling a prescription for an opioid was 55% lower for those receiving chiropractic care than for adults not receiving chiropractic care.

In particular, chiropractors follow evidence-based and value-based guidelines to promote safety and effectiveness. Findings like these and many others show that by adding chiropractic care, employers will strengthen the opportunity for cost savings, improved outcomes, greater worker productivity and stronger employee retention.

SOURCE: Lord, D. (25 January 2019) "Why chiropractic services could be the next big thing in wellness" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/why-chiropractic-services-could-be-the-next-big-thing-in-wellness?brief=00000152-14a7-d1cc-a5fa-7cffccf00000


4 ways to help employees make better choices about what they eat

How often are there doughnuts, chips, soda, etc. in the break room? According to the RAND Corporation, 60 percent of Americans suffer from at least one chronic condition. Continue reading to learn more.


Doughnuts in the conference room. Soda and chips from the vending machine. Cookies in the office kitchen. A recent CDC study of employees across the U.S. found that the foods people get at work tend to contain high amounts of salt, sugar and empty calories.

When people are busy and on-the-go — a common reality for full-time employees who spend more than a third of their day at work — it’s all too easy to fall into poor eating habits. And poor eating habits contribute to poor health. According to a RAND Corporation Study, 60% of American adults suffer from at least one chronic condition (like diabetes or high blood pressure) and 42% have more than one. These conditions are costly, and not just for individuals themselves. The CDC estimates that productivity losses related to health issues cost U.S. employers $1,685 per employee per year, or $225.8 billion annually.

For employers that care about wellness, improving food and beverage offerings represents an untapped opportunity: Better nutrition at work can not only have a powerful impact on employee health but also contribute to a happier, more focused and productive workforce. Making large-scale changes across an organization is not always easy, however, especially when it comes to ingrained habits and preferences. What can today’s employers do to incentivize their employees to make healthier choices?

1. Make healthy food and beverages a benefit.

According to Deloitte’s 2018 survey on Global Human Capital Trends, 63% of employees surveyed cited healthy snacks as something they value highly when it comes to wellness. People want to eat healthier, which is great, but when they are busy, they’ll pick up what’s easy and available. And in too many of today’s offices, that means vending machines and office kitchens stocked with ultra-processed foods high in sugar and salt. Not only are these items unhealthy, they can also lead to sluggishness and lethargy as blood sugar levels spike and then crash.

It’s pretty simple: When more nutritious offerings are readily available — and especially if they are free or subsidized — people are more likely to try them. Companies that offer high-quality food and beverages as a benefit will reap rewards not just in terms of a healthier and more productive workforce, but also in attracting and retaining people, like millennials, who value wellness and appreciate the fact that their employer is investing in their health and happiness.

2. Get personal.

Different people have different drivers and different needs. This is why a one-size-fits-all approach to changing habits rarely works. Before making big decisions about your company’s food and beverage services, ask questions: Are some people on special diets or do they keep unusual schedules? What do people like and dislike about current available options? What kinds of foods and drinks do they wish were offered, but aren’t?

With a better understanding of habits, preferences and what drives people to the kitchen or break room in the first place (boredom? low energy? social time?), employers can begin to build a food and beverage profile that’s tailored to their workforce’s individual needs and thus more likely to be embraced.

3. Consider the “psychology” of snacking.

People don’t always make rational decisions — even more so when they are tired, stressed or “hangry.” But when corporations make the healthy choice the easy (and delicious!) choice, it helps. Everything from where snacks and drinks are positioned — are the more nutritious options at eye level? — to the design of kitchen and break room spaces can make a difference in promoting better eating habits.

For example, kitchen spaces that are attractive, comfortable and inviting encourage people to take a little more time and put more thought into selecting their snacks, and can also serve as a welcome place for people to connect with each other and de-stress. Taste is another important consideration. People sometimes assume that healthy food won’t taste as good as the bad stuff, but this is often just a misconception. Special tastings or fun office activities like offering a “snack of the week” can get people to try more nutritious options and see for themselves that they can be just as — if not more — delicious than what they were eating before.

4. Nudge, don’t push.

Don’t expect people to move from potato chips to veggie and quinoa salad overnight. Organizations that start with a few key changes — replacing sugary sodas with flavored water, for example, or swapping out highly-processed snacks and foods with similar, but more nutritious options — will face less initial resistance, and can then build up their healthy offerings over time. Every workplace has their guilty pleasures, whether it’s a specific brand of soda or a favorite candy. Rather than turning people off by taking their “comfort snacks” away, sometimes the best approach is to simply add healthier alternatives and then wait for people discover on their own that these can be equally fulfilling and delicious, and most importantly, make them feel better too.

Workplace wellness initiatives continue to grow in popularity, but there are still questions about whether these programs are as effective as they could be. While health screenings, smoking cessation programs and gym memberships are a good start, corporations shouldn’t overlook a key driver of good health — what their people eat and drink. Providing easy access to a great diet at work is a smart strategy for improving wellness, and one that employees will come to appreciate as a valuable benefit. Plus, healthy, enthusiastic and energized people makes for a much happier and more productive workplace — a win-win for employees and employers alike.

SOURCE: Heinrich, M. (3 January 2019) "4 ways to help employees make better choices about what they eat" (Web Blog Post). Retrieved from https://www.benefitnews.com/list/4-ways-to-help-employees-make-better-choices-about-what-they-eat?brief=00000152-14a7-d1cc-a5fa-7cffccf00000


Compliance Recap - 2018 Year in Review

Compliance Recap – 2018 Year in Review

During 2018, federal agencies and courts provided employers with a significant amount of new guidance, regulation, and FAQs relating to employer benefit plans. This month-by-month guide provides a timeline of these documents, highlighting the major changes and updates in 2018.

To access the complete monthly Compliance Recaps, please click below:

January 2018 Compliance Recap

February 2018 Compliance Recap

March 2018 Compliance Recap

April 2018 Compliance Recap

May 2018 Compliance Recap

June 2018 Compliance Recap

July 2018 Compliance Recap

August 2018 Compliance Recap

September 2018 Compliance Recap

October 2018 Compliance Recap

November 2018 Compliance Recap

December 2018 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).

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.

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.

HHS Releases 2018 Federal Poverty Guidelines

The U.S. Department of Health and Human Services (HHS) released the 2018 federal 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’s Fact Sheet contains a summary of the regulation’s requirements.

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.

February 2018

Coming off a busy January, the Internal Revenue Service (IRS) updated its Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C, its Questions and Answers on Information Reporting by Health Coverage Providers, and its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act.

The IRS released its adjusted penalty amounts under the employer shared responsibility provisions for the 2018 calendar year.

IRS Updates Its Employer Information Reporting Q&As

The Internal Revenue Service (IRS) updated its “Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C.” The IRS made one substantive change to the Q&As. At Q&A #5, the IRS provided the 2018 due dates for furnishing forms to employees and filing forms with the IRS.

For reporting in 2018 (for offers of coverage and coverage in 2017), an applicable large employer must furnish Form 1095-C to each full-time employee on or before March 2, 2018. This due date reflects a 30-day extension from the general due date (that is, January 31 of the year immediately following the calendar year to which the information relates); the extension was provided by the IRS in Notice 2018-06 on December 22, 2017. The extension applies automatically and does not require the submission of any request or other documentation to the IRS.

Although the IRS extended the due date for furnishing Form 1095-C for 2017, the due date for filing Forms 1094-C and 1095-C with the IRS was not extended.

IRS Updates Its Q&As on Information Reporting by Health Coverage Providers

The Internal Revenue Service (IRS) updated its Questions and Answers on Information Reporting by Health Coverage Providers (Section 6055) by adding questions 30 through 35. Among other items, the IRS discussed short-term relief available from penalties for incomplete or incorrect returns filed with the IRS or furnished to individuals. For reporting in 2016, 2017, and 2018, the IRS will not impose penalties on employers that can show that they have made good faith efforts to comply with the information reporting requirements.

IRS Announces the Play-or-Pay Adjusted Penalty Amounts

The Internal Revenue Service (IRS) updated its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act to reflect adjusted penalty amounts for failures to offer coverage in the 2018 calendar year. For Penalty A (or the “no offer” penalty), the adjusted penalty amount per full-time employee is $2,320. For Penalty B (or the “inadequate coverage” penalty), the adjusted penalty amount per full-time employee is $3,480.

March 2018

March was a quiet month in the employee benefits world. The U.S. Department of Labor (DOL) updated its model Premium Assistance Under Medicaid and the Children’s Health Insurance Program notice (CHIP notice).

The IRS issued its updated Employer’s Tax Guide to Fringe Benefits, issued transition relief regarding HSA eligibility of individuals with health insurance that provides benefits for male sterilization or male contraceptives without a deductible, and issued its updated Guide on Health Savings Accounts and Other Tax-Favored Health Plans.

DOL Updates Employer CHIP Notice

The U.S. Department of Labor (DOL) updated its model Premium Assistance Under Medicaid and the Children’s Health Insurance Program notice (CHIP notice).

Employers that provide health insurance coverage in states with premium assistance through Medicaid or the Children’s Health Insurance Program (CHIP) must provide their employees with the CHIP notice before the start of each plan year. The CHIP notice provides information to employees on how to apply for premium assistance, including how to contact their state Medicaid or CHIP office. The DOL usually updates its model CHIP notice biannually.

IRS Issues Updated Employer’s Tax Guide to Fringe Benefits

The Internal Revenue Service (IRS) issued its 2018 Publication 15-B which contains information for employers on the employment tax treatment of fringe benefits. The guide is updated to reflect, among other items:

  • The suspension of qualified bicycle commuting reimbursements from an employee’s income for any tax year beginning after December 31, 2017, and before January 1, 2026.
  • The suspension of the exclusion for qualified moving expense reimbursements from an employee’s income for tax years beginning after December 1, 2017, and before January 1, 2026. However, the exclusion remains available for a U.S. Armed Forces member on active duty who moves because of a permanent change of station.
  • Limits on the deduction by employers for certain fringe benefits, such as meals and transportation commuting benefits.
  • The definition of items that aren’t tangible personal property for purposes of employee achievement awards.

The guide lists fringe benefits’ tax treatment in its Table 2-1 “Special Rules for Various Types of Fringe Benefits.”

IRS Issues Transition Relief Notice for Plans with Male Sterilization or Contraceptive Benefit

Recently, some states adopted laws that require certain health insurance policies to provide benefits for male sterilization and male contraceptives without cost-sharing.

However, under health saving account (HSA) eligibility requirements, a high deductible health plan (HDHP) generally may not provide benefits for any year until the minimum deductible for that year is satisfied. Although an HDHP may provide preventive care without a deductible or with a deductible that is below the minimum annual amount required by HSA eligibility requirements, male sterilization and male contraceptives are not considered preventive care under the Social Security Act or any Treasury Department guidance.

The Internal Revenue Service (IRS) released its Notice 2018-12 (Notice) to clarify that if a health plan provides benefits for male sterilization or male contraceptives before satisfying the minimum deductible for an HDHP, then the plan is not an HDHP, regardless of whether state law requires coverage of such benefits. Further, an individual who is not covered by an HDHP with respect to a month is not an HSA-eligible individual and may not deduct contributions to an HSA for that month. Similarly, HSA contributions made by an employer on behalf of the individual are not excludible from income and wages.

To allow states time to change their laws so their residents will be able to purchase health insurance coverage that qualifies as an HDHP, the Notice provides transition relief for periods before 2020 to individuals who are, have been, or become participants in or beneficiaries of a health insurance policy that provides benefits for male sterilization or male contraceptives without a deductible or with a deductible below the minimum deductible for an HDHP.

During the transition relief period, an individual with this type of health insurance policy will not be treated as HSA-ineligible, merely because the policy fails to qualify as an HDHP.

IRS Issues Updated Guide on Health Savings Accounts and Other Tax-Favored Health Plans

The Internal Revenue Service (IRS) updated its Publication 969 for taxpayers to use in preparing their 2017 returns. The publication explains health savings accounts (HSAs), medical savings accounts (Archer MSAs and Medicare Advantage MSAs), health flexible spending arrangements (FSAs), and health reimbursement arrangements (HRAs).

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, and a transitional policy extension for non-grandfathered coverage in the small group and individual health insurance markets.

The IRS released frequently asked questions on the employer credit for paid family medical leave.

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
Employee received distribution of excess contribution with earnings? Employee repays distribution by the individual’s tax return filing date? Excess contribution is includible in the employee’s gross income and subject to the 20% excess contributions excise tax?
Yes Yes No
Yes No Generally, no.

Yes, if the HSA distribution is attributable to employer contributions and not included in the employee’s wages because the employer treats $6,900 as the limit, unless the employee uses the distribution for qualified medical expenses.

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:

Deductible $ 415
Initial coverage limit $ 3,820
Out-of-pocket threshold $ 5,100
Total covered Part D spending at the out-of-pocket threshold (for beneficiaries who are ineligible for the coverage gap discount program) $ 8,139.54
Minimum cost-sharing in catastrophic coverage portion of the benefit $ 3.40 for generic/preferred multi-source drugs

$ 8.50 for all other drugs

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

Read more about the final rule.

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.

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

Read more about the federal tax credit for employer-provided paid family and medical leave.

May 2018

May was a relatively busy month in the employee benefits world. The Internal Revenue Service (IRS) released the indexed threshold that employers will use in 2019 to determine coverage affordability. The IRS also issued inflation-adjusted amounts that will apply to health savings accounts for 2019.

The IRS released guidance on its play-or-pay penalty response acknowledgment letters. The IRS also released a tax reform tip, frequently asked questions about the family and medical leave credit, and a fact sheet on determining whether an employer is a large employer.

IRS Releases ACA Indexed Affordability Threshold for 2019

The Internal Revenue Service (IRS) released its Revenue Procedure 2018-34 that makes an indexing adjustment to the required contribution percentage that is used to determine whether employer-sponsored health coverage is affordable. For 2019, the percentage will be 9.86 percent.

This means that if an employer is using the federal poverty level (FPL) affordability safe harbor, then the maximum monthly self-only contribution will be $99.75. [9.86% of $12,140 (the 2018 contiguous U.S. FPL for one person), divided by 12, equals $99.75.]

IRS Releases 2019 Limits on Health Savings Accounts

The Internal Revenue Service (IRS) released its Revenue Procedure 2018-30 that provides the 2019 inflation-adjusted amounts for health savings accounts (HSAs).

For 2019, the annual limitation on deductions for an individual with self-only coverage under a high deductible health plan is $3,500. For 2019, the annual limitation on deductions for an individual with family coverage under a high deductible health plan is $7,000.

For 2019, a “high deductible health plan” is defined as a health plan with an annual deductible that is not less than $1,350 for self-only coverage or $2,700 for family coverage, and the annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not exceed $6,750 for self-only coverage or $13,500 for family coverage.

IRS Releases Guidance on its Play-or-Pay Penalty Response Acknowledgment Letters

In late 2017, the Internal Revenue Service (IRS) started mailing Letter 226J to inform large employers of their potential liability for an employer shared responsibility payment (ESRP) for the 2015 calendar year. The IRS’ determination of an employer’s liability and potential payment is based on information reported to the IRS on Forms 1094-C and 1095-C and information about the employer’s full-time employees that were allowed the premium tax credit.

The letter contains Form 14764 (ESRP Response) which is the form that the employer must use to file its response by the deadline listed in the letter. The employer uses Form 14764 to indicate that it agrees or disagrees with the IRS’ letter. If an employer disagrees with the proposed liability, then it must provide a full explanation of its disagreement using Form 14765.

The IRS will acknowledge the employer’s response with a Letter 227 that describes the further actions that an employer can take. The IRS’ recently released Understanding Your Letter 227 describes the versions of Letter 227 that an employer may receive:

  • Letter 227-J acknowledges receipt of the signed agreement Form 14764, ESRP Response, and that the penalty will be assessed. After the IRS issues this letter, the case will be closed. No response is required.
  • Letter 227-K acknowledges receipt of the information provided and shows the penalty has been reduced to zero. After the IRS issues this letter, the case will be closed. No response is required.
  • Letter 227-L acknowledges receipt of the information provided and shows the penalty has been revised. The letter includes an updated Form 14765 and revised calculation table. The employer can agree or request a meeting with the manager and/or appeals.
  • Letter 227-M acknowledges receipt of information provided and shows that the penalty did not change. The letter provides an updated Form 14765 and revised calculation table. The employer can agree or request a meeting with the manager and/or appeals.
  • Letter 227-N acknowledges the decision reached in appeals and shows the penalty based on the appeals review. After the IRS issues this letter, the case will be closed. No response is required.

If, after receiving Letter 227, the employer agrees with the proposed penalty, then the employer would follow the instructions to sign the response form and return it with full payment in the envelope provided.

If, after receiving Letter 227, the employer disagrees with the proposed or revised shared employer responsibility payment, the employer must provide an explanation of why it disagrees or indicate changes needed, or both, on Form 14765. Then the employer must return all documents as instructed in the letter by the response date. The employer may also request a pre-assessment conference with the IRS Office of Appeals within the response date listed within Letter 227, which will be generally 30 days from the date of the letter.

If the employer does not respond to either Letter 226J or Letter 227, the IRS will assess the amount of the proposed employer shared responsibility payment and issue a notice and demand for payment.

Read more about the play-or-pay penalty assessment letters.

IRS Releases Tax Reform Tax Tip and FAQs Regarding Family and Medical Leave Credit

The Internal Revenue Service (IRS) released its Tax Reform Tax Tip 2018-69: How the Employer Credit for Family and Medical Leave Benefits Employers and its updated Section 45S Employer Credit for Paid Family and Medical Leave FAQs that primarily reiterates the Tax Cuts and Jobs Act’s provisions that provide a new federal credit for employers that provide paid family and medical leave to their employees.

In its Tax Tip, 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.

In its FAQs, the IRS indicates that, in the future, it will 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, and whether members of a controlled group of corporations and businesses under common control are treated as a single taxpayer in determining the credit.

Read more about the federal tax credit for employer-provided paid family and medical leave.

IRS Releases Fact Sheet on Determining Whether an Employer is a Large Employer

The Internal Revenue Service (IRS) released Publication 5208 – Affordable Care Act: Determining if you are an applicable large employer that provides a three-step process for employers to determine whether they are an applicable large employer for purposes of the employer shared responsibility provisions.

Although this one-page fact sheet doesn’t provide new information about counting employees, it may be a helpful guide for those employers who have fewer than 50 full-time or full-time equivalent employees and who are growing their staff numbers.

June 2018

June was a relatively quiet month in the employee benefits world. The U.S. Department of Labor issued final regulations regarding association health plans. The Centers for Medicare and Medicaid Services released a form that certain plan sponsors will use for reporting limited wraparound coverage.

DOL Issues Final Regulations Regarding Association Health Plans

On June 19, 2018, the U.S. Department of Labor (DOL) published Frequently Asked Questions About Association Health Plans (AHPs) and issued a final rule that broadens 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 (ERISA).

The final rule is intended to facilitate adoption and administration of AHPs and expand health coverage access to employees of small employers and certain self-employed individuals.

The final rule will be effective on August 20, 2018. The final rule will apply to fully-insured AHPs on September 1, 2018, to existing self-insured AHPs on January 1, 2019, and to new self-insured AHPs formed under this final rule on April 1, 2019.

Read more about the final rule.

CMS Releases Form for Reporting Wraparound Excepted Benefits

Under a 2015 final rule by the Internal Revenue Service, U.S. Department of Labor, and U.S. Department of Health and Human Services, certain employers may offer limited wraparound coverage under one of two narrow pilot programs.

These wraparound benefits are considered an excepted benefit and are generally exempt from certain requirements of federal laws, including ERISA, the Internal Revenue Code, and parts of the Patient Protection and Affordable Care Act.

Under the final rule, plan sponsors who offer limited wraparound coverage have reporting requirements. In December 2017, the Centers for Medicare and Medicaid Services (CMS) issued a notice for comments on a proposed reporting form.

On June 25, 2018, the CMS published its Reporting Form for Plan Sponsors Offering Limited Wraparound Coverage. A plan sponsor of limited wraparound coverage must file the form once, within 60 days of the form’s publication (by August 24, 2018), or 60 days after the first day of the first plan year that limited wraparound coverage is first offered.

Read more about limited wraparound coverage.

July 2018

July was a quiet month in the employee benefits world. The IRS released an information letter on the employer shared responsibility provisions.

IRS Releases Information Letter on Employer Shared Responsibility

The Internal Revenue Service (IRS) released its Information Letter 2018-0013 to reiterate how the employer shared responsibility provisions would apply to an applicable large employer. Specifically, the IRS explained how the Service Contract Act (SCA) interacts with the Patient Protection and Affordable Care Act (ACA).

As background, the SCA requires workers who are employed on certain federal contracts to be paid prevailing wages and fringe benefits. An employer generally can satisfy its fringe benefit obligation by providing the cash equivalent of benefits or a combination of cash and benefits. Alternatively, an employer may permit employees to choose among various benefits, or various benefits and cash. An employer may choose to provide fringe benefits under the SCA by offering an employee the option to enroll in health coverage provided by the employer (including an option to decline that coverage). If the employee declines the coverage, that employer would then generally be required by the SCA to provide the employee with cash or other benefits of an equivalent value.

This Information Letter refers to IRS Notice 2015-87 which describes how the ACA and the SCA may be coordinated for plan years beginning before January 1, 2017, and until further guidance is issued and applicable. Notice 2015-87 clarifies that, for employees under the SCA, the choice of a cash-out payment will generally not require an employer to pay a greater share of the cost of the health coverage for the coverage to be considered affordable.

August 2018

August was a relatively quiet month in the employee benefits world. The Internal Revenue Service (IRS), the Department of Health and Human Services (HHS), and the Department of Labor (DOL) published a final rule that amends the definition of short-term, limited-duration insurance. HHS also released a fact sheet on the final rule. To provide guidance on association health plans, the DOL posted a fact sheet and the IRS posted a new Q&A for employers.

IRS, HHS, and DOL Issue Final Rule on Short-Term, Limited-Duration Insurance

On August 3, 2018, the Internal Revenue Service, the Department of Health and Human Services (HHS), and the Department of Labor (collectively, the Departments) published a final rule that amends the definition of short-term, limited-duration insurance. HHS also released a fact sheet on the final rule.

According to the Departments, the final rule will provide consumers with more affordable options for health coverage because they may buy short-term, limited-duration insurance policies that are less than 12 months in length and may be renewed for up to 36 months.

The final rule will apply to insurance policies sold on or after October 2, 2018.

Read more about the final rule.

DOL and IRS Release Additional Information on Association Health Plans

On August 20, 2018, the Department of Labor (DOL) posted the Association Health Plans ERISA Compliance Assistance fact sheet.

On August 20, 2018, the IRS added a new Q&A 18 to its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act. Q&A 18 confirms that:

  • An employer that is not an applicable large employer (ALE) under the employer shared responsibility provisions does not become an ALE due to participation in an AHP.
  • An employer that is an ALE under the employer shared responsibility provisions continues to be an ALE subject to the employer shared responsibility provisions regardless of its participation in an AHP.
  • The only circumstance when multiple employers are treated as a single employer for determining whether the employer is an ALE is if the employers have a certain level of common or related ownership.

Read more about the association health plan final rule.

September 2018

September was another relatively quiet month in the employee benefits world. The IRS issued guidance on the employer credit for paid family and medical leave.

IRS Issues Guidance on Employer Credit for Paid Family and Medical Leave

The Internal Revenue Service (IRS) released Notice 2018-71 (Notice) that provides Q&A guidance on the Internal Revenue Code Section 45S employer credit for paid family and medical leave (FML). The IRS clarified several items in its guidance, including:

  • An employer does not need to be subject to Title I of the Family and Medical Leave Act of 1993 (FMLA) to be eligible for the employer credit for FML
  • A description of what the employer’s written policy must contain, including sample “non-interference” language
  • Under Section 45S, paid leave is considered FML only if the leave is specifically designated for one or more FMLA purposes, may not be used for any other reason, and is not paid by a state or local government or required by state or local law
  • An employee does not need to work a minimum number of hours per year to be a qualifying employee
  • Each member of a controlled group generally makes a separate election of whether to claim the credit
  • An employer must file IRS Form 8994, Employer Credit for Paid Family and Medical Leave, and IRS Form 3800, General Business Credit, with its tax return to claim the credit

Read more about the IRS’ Q&A guidance.

October 2018

October was a busy month in the employee benefits world. The Internal Revenue Service (IRS) released final forms and instructions for 2018 ACA reporting. The Department of Health and Human Services (HHS) released inflation-adjusted civil monetary penalty amounts.

Congress and the President enacted a law to prohibit pharmacy gag clauses. The IRS provided tax relief to victims of Hurricane Michael in Florida. The DOL released FAQs for plan participants affected by Hurricanes Florence and Michael.

IRS Releases Final Forms and Instructions for 2018 ACA Reporting

The Internal Revenue Service (IRS) released instructions for both the Forms 1094-B and 1095-B and the Forms 1094-C and 1095-C and Forms 1094-B, 1095-B, 1094-C, and 1095-C. There are no substantive changes in the forms or instructions between 2017 and 2018, beyond the further removal of now-expired forms of transition relief. There is a minor formatting change to Forms 1095-B and 1095-C for 2018. There are dividers for the entry of an individual’s first name, middle name, and last name.

Reporting will be due early in 2019, based on coverage in 2018. For calendar year 2018, Forms 1094-C, 1095-C, 1094-B, and 1095-B must be filed by February 28, 2019, or April 1, 2019, if filing electronically. Statements to employees must be furnished by January 31, 2019.

All reporting will be for the 2018 calendar year, even for non-calendar year plans.

Read more about the final forms and instructions.

HHS Releases Inflation-Adjusted Federal Civil Penalty Amounts

The Department of Health and Human Services (HHS) issued its Annual Civil Monetary Penalties Inflation Adjustment. Here are some of the adjustments:

  • Medicare Secondary Payer:
    • For failure to provide information identifying situations where the group health plan is primary, the maximum penalty increases from $1,157 to $1,181 per failure.
    • For an employer who offers incentives to a Medicare-eligible individual to not enroll in employer-sponsored group health that would otherwise be primary, the maximum penalty increases from $9,054 to $9,239.
    • For willful or repeated failure to provide requested information regarding group health plan coverage, the maximum penalty increases from $1,474 to $1,504.
  • Summary of Benefits and Coverage: For failure to provide, the maximum penalty increases from $1,105 to $1,128 per failure.
  • Health Insurance Portability and Accountability Act (HIPAA):
Tier Penalty
1. Did Not Know:

Covered entity or business associate did not know (and by exercising reasonable diligence would not have known) that it violated the provision of the Administrative Simplification regulations.

$114 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
2. Reasonable Cause:

The violation was due to reasonable cause and not to willful neglect.

$1,141 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
3. Willful Neglect – Corrected:

The violation was due to willful neglect, but the violation is corrected during the 30-day period beginning on the first date the liable person knew (or by exercising reasonable diligence would have known) of the failure to comply.

$11,410 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
4. Willful Neglect – Not Corrected:

The violation was due to willful neglect and the violation is not corrected as described in Tier 3.

$57,051 minimum for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.

 

The adjustments are effective for penalties assessed on or after October 11, 2018, for violations occurring after November 2, 2015.

Congress and the President Enact Law Prohibiting Pharmacy Gag Clauses

Congress and the President enacted the Patient Right to Know Drug Prices Act (Act) that prohibits any restriction on a pharmacy’s ability to inform customers about certain prescription drug costs.

The Act prohibits a group health plan (or a health insurance issuer offering group or individual health insurance coverage, or a pharmacy benefits management service working with a health plan or health insurance issuer) from taking the following actions against a pharmacy that dispenses a prescription drug to an enrollee in the plan or coverage:

  • restricting, directly or indirectly, the pharmacy from informing an enrollee of any difference between the enrollee’s out-of-pocket prescription drug cost under the plan or coverage and the amount that the enrollee would pay for the prescription drug without using any health plan or insurance coverage, or
  • penalizing the pharmacy for informing an enrollee of any difference between the enrollee’s out-of-pocket prescription drug cost under the plan or coverage and the amount that the enrollee would pay for the prescription drug without using any health plan or insurance coverage.

Tax Relief for Victims of Hurricane Michael in Florida

Victims of Hurricane Michael that took place beginning on October 7, 2018, in Florida may qualify for tax relief from the Internal Revenue Service (IRS). The President declared that a major disaster exists in Florida. The Federal Emergency Management Agency’s major declaration permits the IRS to postpone deadlines for taxpayers who have a business in certain counties within the disaster area.

The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 866-562-5227 to request this tax relief.

In the prior month, the IRS extended deadlines for victims of Hurricane Florence in certain counties of North Carolina, South Carolina, and Virginia.

DOL Releases FAQs for Plan Participants Affected by Hurricanes Florence and Michael

The Department of Labor (DOL) released its FAQs for Participants and Beneficiaries Following Hurricanes Florence and Michael to answer health benefit and retirement benefit questions. The FAQs cover topics including:

  • Whether an employee will still be covered by an employer-sponsored group health plan if the worksite closed
  • Potential options such as special enrollment rights, COBRA continuation coverage, individual health coverage, and health coverage through a government program in the event that an employee loses health coverage

November 2018

November was a busy month in the employee benefits world. The Internal Revenue Service (IRS) extended the due date for employers to furnish Forms 1095-C or 1095-B to individuals, extended “good faith compliance efforts” relief for 2018, and issued specifications for employer-provided substitute ACA forms. The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) released two final rules on contraceptive coverage exemptions.

The IRS released indexed Patient-Centered Outcomes Research Institute (PCORI) fees and inflation-adjusted limits for various benefits. The DOL, IRS, and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2018 Form 5500 annual return/report and instructions.

For survivors of the 2018 California wildfires, the IRS provided tax relief and the DOL released employee benefit guidance. The IRS provided guidance to employers who adopt leave-based donation programs to provide charitable relief for victims of Hurricane Michael. The Treasury released its Priority Guidance Plan that lists projects that will be the focus of the Treasury and IRS for the period from July 1, 2018, through June 30, 2019.

IRS Extends Due Date to Furnish ACA Forms to Participants and Provides Good Faith Penalty Relief

The Internal Revenue Service (IRS) issued Notice 2018-94 to extend the due date to furnish 2018 Forms 1095-B and 1095-C to individuals. The due date moves from January 31, 2019, to March 4, 2019.

The IRS also extends “good faith compliance efforts” relief for 2018. As in prior years, this relief is applied only to incorrect or incomplete information reported in good faith on a statement or return. The relief does not apply to a failure to timely furnish a statement or file a return.

Read more about the notice.

IRS Issues Specifications for Employer-Provided Substitute ACA Forms

The Internal Revenue Service (IRS) issued Publication 5223 General Rules and Specifications for Affordable Care Act Substitute Forms 1095-A, 1094-B, 1095-B, 1094-C, and 1095-C that describes how employers may prepare substitute forms to furnish ACA reporting information to individuals and the IRS.

Treasury, DOL, and HHS Release Two Final Rules on Contraceptive Coverage Exemptions

The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, Departments) released two final rules on contraceptive coverage exemptions. These rules finalize the Departments’ interim final rules that were published on October 13, 2017. HHS also issued a press release and fact sheet on these final rules.

The first final rule provides an exemption from the contraceptive coverage mandate to entities (including certain employers) and individuals that object to services covered by the mandate on the basis of sincerely held religious beliefs.

The second final rule provides an exemption from the contraceptive coverage mandate to nonprofit organizations, small businesses, and individuals that object to services covered by the mandate on the basis of sincerely held moral convictions.

The final rules will be effective on January 14, 2019.

Read more about the final rules.

IRS Releases Indexed PCORI Fee

The Patient Protection and Affordable Care Act (ACA) imposes a fee on insurers of certain fully insured plans and plan sponsors of certain self-funded plans to help fund the Patient-Centered Outcomes Research Institute (PCORI). The PCORI fee is due by July 31 of the year following the calendar year in which the plan or policy year ends.

The Internal Revenue Service issued Notice 2018-85 to announce the PCORI fee of $2.45 for policy years and plan years that end on or after October 1, 2018, and before October 1, 2019.

Plan/Policy Year Last Year Fee Is Due ($2.45, indexed/person)   Plan/Policy Year Last Year Fee Is Due ($2.45, indexed/person)
Nov. 1, 2017 – Oct. 31, 2018 July 31, 2019 May 1, 2018 – April 30, 2019 July 31, 2020
Dec. 1, 2017 – Nov. 30, 2018 July 31, 2019 June 1, 2018 – May 31, 2019 July 31, 2020
Jan. 1, 2018 – Dec. 31, 2018 July 31, 2019 July 1, 2018 – June 30, 2019 July 31, 2020
Feb. 1, 2018 – Jan. 31, 2019 July 31, 2020 Aug. 1, 2018 – July 31, 2019 July 31, 2020
March 1, 2018 – Feb. 28, 2019 July 31, 2020 Sept. 1, 2018 – Aug. 31, 2019 July 31, 2020
April 1, 2018 – March 31, 2019 July 31, 2020 Oct. 1, 2018 – Sept. 30, 2019 July 31, 2020

Read more about the PCORI fee.

IRS Releases 2019 Inflation-Adjusted Limits

The Internal Revenue Service (IRS) released its inflation-adjusted limits for various benefits. For example, the maximum contribution limit to health flexible spending arrangements (FSAs) will be $2,700 in 2019. Also, the maximum reimbursement limit in 2019 for Qualified Small Employer Health Reimbursement Arrangements will be $5,150 for single coverage and $10,450 for family coverage.

Read more about the 2019 limits.

Advance Informational Copies of 2018 Form 5500 Annual Return/Report

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2018 Form 5500 annual return/report and related instructions.

Here are some of the changes that the instructions highlight:

  • Principal Business Activity Codes.Principal Business Activity Codes have been updated to reflect updates to the North American Industry Classification System (NAICS). For Line 2d, a plan administrator would enter the six-digit Principal Business Activity Code that best describes the nature of the plan sponsor’s business from the list of codes on pages 78-80 of the Form 5500 Instructions.
  • Administrative Penalties. The instructions have been updated to reflect that the new maximum penalty for a plan administrator who fails or refuses to file a complete or accurate Form 5500 report has been increased to up to $2,140 a day for penalties assessed after January 2, 2018, whose associated violations occurred after November 2, 2015.

Because the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 requires the penalty amount to be adjusted annually after the Form 5500 and its schedules, attachments, and instructions are published for filing, be sure to check for any possible required inflation adjustments of the maximum penalty amount that are published in the Federal Register after the instructions have been posted.

  • Form 5500-Participant Count.The instructions for Lines 5 and 6 have been enhanced to make clearer that welfare plans complete only Line 5 and elements 6a(1), 6a(2), 6b, 6c, and 6d in Line 6.

Be aware that the advance copies of the 2018 Form 5500 are for informational purposes only and cannot be used to file a 2018 Form 5500 annual return/report.

ERISA imposes the Form 5500 reporting obligation on the plan administrator. Form 5500 is normally due on the last day of the seventh month after the close of the plan year. For example, a plan administrator would file Form 5500 by July 31, 2019, for a 2018 calendar year plan.

Tax Relief for Victims of November Wildfire in California

Victims of the wildfires that took place beginning on November 8, 2018, in California may qualify for tax relief from the Internal Revenue Service (IRS). The President declared that a major disaster exists in California. The Federal Emergency Management Agency’s major declaration permits the IRS to postpone deadlines for taxpayers who have a business in certain counties within the disaster area.

The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 866-562-5227 to request this tax relief.

DOL Releases Employee Benefit Guidance and Relief for 2018 California Wildfire Survivors

The Department of Labor (DOL) released its FAQs for Participants and Beneficiaries Following the 2018 California Wildfires to answer health benefit and retirement benefit questions.

The FAQs cover topics including:

  • Whether an employee will still be covered by an employer-sponsored group health plan if the worksite closed
  • Potential options such as special enrollment rights, COBRA continuation coverage, individual health coverage, and health coverage through a government program in the event that an employee loses health coverage

The DOL also released its Fact Sheet: Guidance and Relief for Employee Benefit Plans Impacted by the 2018 California Wildfires to recognize that employers may encounter problems due to the wildfires. The DOL advises plan fiduciaries to make reasonable accommodations to prevent workers’ loss of benefits and to take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.

The DOL also acknowledged that there may be instances when full and timely compliance by group health plans may not be possible due to physical disruption to a plan’s principal place of business. The DOL’s enforcement approach will emphasize compliance assistance, including grace periods and other relief where appropriate.

IRS Provides Guidance on Leave-Based Donation Programs’ Tax Treatment

The IRS issued Notice 2018-89 to guide employers who adopt leave-based donation programs to provide charitable relief for victims of Hurricane Michael. These leave-based donation programs allow employees to forgo vacation, sick, or personal leave in exchange for cash payments that the employer will make to charitable organizations described under Internal Revenue Code Section 170(c).

The employer’s cash payments will not constitute gross income or wages of the employees if paid before January 1, 2020, to the Section 170(c) charitable organizations for the relief of victims of Hurricane Michael. Employers do not need to include these payments in Box 1, 3, or 5 of an employee’s Form W-2.

Treasury Releases 2018-19 Priority Guidance Plan

The Department of the Treasury (Treasury) released its 2018-2019 Priority Guidance Plan (Plan) that describes the priorities for the Treasury and the Internal Revenue Service (IRS) for the period from July 1, 2018, through June 30, 2019. The Plan contains a list of projects that will be the focus of the Treasury and IRS, including:

  • Guidance on employer shared responsibility provisions
  • Regulations regarding the excise tax on high cost employer-provided coverage (also known as the “Cadillac tax”).

December 2018

December was a relatively quiet month in the employee benefits world. A U.S. District Court issued an order declaring that the Patient Protection and Affordable Care Act (ACA) is unconstitutional. The Equal Employment Opportunity Commission (EEOC) issued two final rules to remove certain wellness program incentives. The Department of Labor (DOL) updated its Form M-1 filing guidance for association health plans.

U.S. District Court Declares ACA Unconstitutional

On December 14, 2018, the U.S. District Court for the Northern District of Texas (Court) issued a declaratory order in ongoing litigation regarding the individual mandate and the Patient Protection and Affordable Care Act (ACA). The Court declared that the individual mandate is unconstitutional and declared that the rest of the ACA – including its guaranteed issue and community rating provisions – is unconstitutional.

The Court did not grant the plaintiffs’ request for a nationwide injunction to prohibit the ACA’s continued implementation and enforcement. The Court’s declaratory judgment simply defines the parties’ legal relationship and rights under the case at this relatively early stage in the case.

On December 16, 2018, the Court issued an order that requires the parties to meet and discuss the case by December 21, 2018, and to jointly submit a proposed schedule for resolving the plaintiffs’ remaining claims.

On December 30, 2018, the Court issued two orders. The first order grants a stay of its December 14 order. This means that the court’s order regarding the ACA’s unconstitutionality will not take effect while it is being appealed. The second order enters the December 14 order as a final judgment so the parties may immediately appeal the order.

On December 31, 2018, the Court issued an order that stays the remainder of the case. This means that the Court will not be proceeding with the remaining claims in the case while its December 14 order is being appealed. After the appeal process is complete, the parties are to alert the Court and submit additional court documents if they want to continue with any remaining claims in the case.

At this time, the case’s status does not impact employers’ group health plans. However, employers should stay informed for the final decision in this case.

Read more about the court case.

EEOC Issue Final Rules to Remove Wellness Program Incentive Limits Vacated by Court

On December 20, 2018, the Equal Employment Opportunity Commission (EEOC) issued two final rules to remove wellness program incentives.

As background, in August 2017, the U.S. District Court for the District of Columbia held that the U.S. Equal Employment Opportunity Commission (EEOC) failed to provide a reasoned explanation for its decision to allow an incentive for spousal medical history under the Genetic Information Nondiscrimination Act (GINA) rules and adopt 30 percent incentive levels for employer-sponsored wellness programs under both the Americans with Disabilities Act (ADA) rules and GINA rules.

In December 2017, the court vacated the EEOC rules under the ADA and GINA effective January 1, 2019. The EEOC issued the following two final rules in response to the court’s order.

The first rule removes the section of the wellness regulations that provided incentive limits for wellness programs regulated by the ADA. Specifically, the rule removes guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries or undergo medical examinations.

The second rule removes the section of the wellness regulations that provided incentive limits for wellness programs regulated by GINA. Specifically, the rule removes guidance that addressed the extent to which an employer may offer an inducement to an employee for the employee’s spouse to provide current health status information as part of a health risk assessment (HRA) administered in connection with an employer-sponsored wellness program.

Both rules will be effective on January 1, 2019.

Read more about the EEOC’s final rules.

DOL Updates Form M-1 Filing Guidance for Association Health Plans

On December 3, 2018, the Department of Labor (DOL) published its “10 Tips for Filing Form M-1 For Association Health Plans And Other MEWAs That Provide Medical Benefits” that provides plan administrators with information on when to file and how to complete portions of Form M-1.

The DOL emphasizes that all multiple employer welfare arrangements (MEWAs) that provide medical benefits, including association health plans (AHPs) that intend to begin operating under the DOL’s new AHP rule, are required to file an initial registration Form M-1 at least 30 days before any activity including, but not limited to, marketing, soliciting, providing, or offering to provide medical care benefits to employers or employees who may participate in an AHP.

Read more about the DOL guidance.

1/3/2019

*This information is general and is provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors


4 ways to help employees master their HDHPs in 2019

How can employers help their employees better understand their High Deductible Health Plans? Whether your employees are HDHP veterans or newbies, there are things companies can do to help improve employee understanding. Read on to learn more.


With 2018 in the books, now is a great time to give HDHP veterans and newbies at your company some help understanding — and squeezing more value out of — their plans in 2019.

Here are four simple steps your HR team can take over the next few months to put employees on the right track.

1. Post a jargon-free FAQ page on your intranet

When: Two weeks before your new plan year begins

Keep your FAQ at ten questions (and answers!), maximum. Otherwise, your employees can get overwhelmed by their health plans and by the FAQ.

When writing up the answers, pretend you’re talking directly to an employee who doesn’t know any of the insurance jargon you do. Keep it simple and straightforward.

Make sure your questions reflect the concerns of different employee types: Millennials who haven’t had insurance before, older employees behind on retirement, employees about to have a new kid, etc. To get a clear sense of these concerns, invite a diverse group of 5-7 employees out for coffee and ask them.

Some sample questions for your FAQ might be:
• Is an HSA different from an FSA?
• Do I have to open an HSA?
• How much money should I put in my HSA?
• This plan looks way more expensive than my PPO. What gives?

2. Send a reminder email about setting up an HSA and/or choosing a monthly contribution amount

When: The first week of the new plan year

When your employees don’t take advantage of their HSA not only do they miss out on low-hanging tax savings, your company misses out on payroll tax savings, too.

So right at the start of the new year, send an email that explains why it’s important to set up a contribution amount right away.

A few reasons why it’s really important to do this:

  • You can’t use any HSA funds until your account is fully set up and you’ve chosen how much you’re going to contribute.
  • If you pay for any healthcare at all next year, and don’t contribute to your HSA, you’re doing it wrong. Why? You don’t pay taxes on any of the money you put into your HSA and then spend on eligible health care…which puts real money back in your pocket. (Last year, the average HSA user contributed about $70 every two weeks and saved $267 in taxes as a result!)
  • There’s no “use it or lose it” rule! Any money you put into your HSA this year is yours to use for medical expenses the rest of your life. And once you turn 65, you can use it for anything at all. A Mediterranean cruise. A life-size Build-a-Bear. You name it.

3. Give your HDHP newbies tips on navigating their first visit to the doctor and pharmacy

When: The week insurance cards are mailed out

When employees who are used to PPO-style co-pays realize they have to pay more upfront with their HDHP, they can get…cranky. And start to doubt their plan choice — or worse, you as their employer choice.

So set expectations ahead of time to avoid employee sticker shock and to prevent you from getting an earful. Specifically, remind employees which types of visits are considered preventative care (and likely free) and which aren’t. Then explain their options when it comes to paying for — and getting reimbursed for — the visit.

4. Share tips on saving money on care with all your HDHP users

When: Any time before the end of the first quarter of the year

Specifically, you might recommend that your employees:

  • Check prescription prices on a site like Goodrx.com before they buy their meds
  • Visit an urgent care center instead of the ER, if they’re sick or hurt but it’s not life-threatening
  • Use a telemedicine tool (if your company offers one) to get free online medical advice without having to leave their Kleenex-riddled beds

Sure, following this communication schedule requires extra elbow grease. But if you defuse your employees’ stress and confusion early, they’ll feel more prepared to take control of their healthcare and get the most out of their plans. And as a bonus, you and your team get to spend less time answering panicked questions the rest of the year.

SOURCE: Calvin, H. (2 January 2019) "4 ways to help employees master their HDHPs in 2019" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/4-ways-to-help-employees-master-their-hdhps-in-2019


Proposed 2020 Benefit Payment and Parameters Rule

A proposed rule for 2020 benefit payment and parameters was recently released by the Centers for Medicare & Medicaid Services (CMS). The proposed rule is intended to reduce fiscal and regulatory burdens associated with the ACA. Read on to learn more.


The Centers for Medicare & Medicaid Services (CMS) released a proposed rule for benefit payment and parameters for 2020. CMS also released its draft 2020 actuarial value calculator and draft 2020 actuarial value calculator methodology.

According to CMS, the proposed rule is intended to reduce fiscal and regulatory burdens associated with the Patient Protection and Affordable Care Act (ACA) across different program areas and to provide stakeholders with greater flexibility.

Although the proposed rule would primarily affect the individual market and the Exchanges, the proposed rule addresses the following topics that may impact employer-sponsored group health plans:

  • Changes related to prescription drug policy
  • Small Business Health Options Program (SHOP)
  • Prohibition against discrimination
  • Maximum annual limitation on cost sharing for plan year 2020
  • Cost-sharing requirements for generic drugs
  • Cost-sharing requirements and drug manufacturers’ coupons

CMS usually finalizes its benefit payment and parameters rule in the first quarter of the year following the proposed rule’s release. February 19, 2019 is the due date for public comments on the proposed rule.

The 2020 open enrollment period will run from November 1, 2019, to December 15, 2019.

SOURCE: Hsu, K. (29 January 2019) "Proposed 2020 Benefit Payment and Parameters Rule" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/proposed-2020-benefit-payment-and-parameters-rule