I Feel Good… I Knew That I Would… Wellness Program Reminders

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by Alex Smith

With employers considering the imposition of health plan premium surcharges on participants who are COVID unvaccinated, a recent court decision highlights the importance of complying with the HIPAA wellness program requirements.

A federal district court in Ohio recently rejected a portion of Macy’s motion to dismiss the Department of Labor’s (DOL’s) enforcement action with respect to the tobacco surcharges on health plan premiums Macy’s imposed as part of its wellness program.  In its enforcement action, the DOL focused on the lack of a reasonable alternative standard for some of the years covered by the enforcement action and the lack of retroactively refunding the surcharge to participants who earned the right to avoid the surcharge later in the plan year for certain years in which a reasonable alternative standard was made available. As background, health contingent wellness programs are required to provide a reasonable alternative standard for earning the incentive (avoiding the surcharge) under HIPAA. Read more

Let’s Get Physical – Proposed PHIT Act Would Make Certain Sports and Fitness Expenses Tax Deductible

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by Alex Smith

Earlier this year, the Personal Health Investment Today Act of 2021 (the PHIT Act) was introduced in the U.S. Senate, where the legislation remains currently pending. If enacted, the PHIT Act would amend the Internal Revenue Code of 1986 to include “qualified sports and fitness expenses” among the expenses that may be deducted as tax-deductible medical expenses. In addition, individuals would be able to pay for “qualified sports and fitness expenses” using pre-tax dollars through their health savings account (HSA) or health care flexible spending account (Health FSA). Read more

Here Comes the Sun: The DOL Intends to Shine the Light on Mental Health Parity

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by Bret F. Busacker

We previously blogged about the new Mental Health Parity and Addiction Equity Act (MHPAEA) reporting and disclosure requirements established by the Consolidated Appropriation Act, 2021 (CAA).

As a refresher, employers and carriers that sponsor group health plans are now required to provide upon request a full analysis of the process followed by the plan in establishing non-quantitative treatment limitations (NQTLs) for the plan and the impact these NQTL’s have on mental health and substance use disorder (MH/SUD) benefits provided by the plan.  This disclosure requirement went into effect on February 10, 2021.

The DOL has recently signaled its intent to focus on MHPAEA issues in filing suit against United Healthcare Insurance Company (“UHIC”) and United Behavioral Health (“UBH”).   Read more

Are You Ready to Provide Your MHPAEA Disclosure?

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DOL and HHS FAQs Provide Important Insights

by Bret F. Busacker

We previously blogged about the new Mental Health Parity and Addiction Equity Act (MHPAEA) reporting and disclosure requirements established by the Consolidated Appropriation Act, 2021 (CAA). As a refresher, employers and carriers that sponsor group health plans are now required to provide upon request a full analysis of the process followed by the plan in establishing non-quantitative treatment limitations (NQTLs) for the plan and the impact these NQTL’s have on mental health and substance use disorder (MH/SUD) benefits provided by the plan. This disclosure requirement went into effect on February 10, 2021. Read more

Whoomp There It Is…The IRS Issues Further Flexible Spending Account Relief under Notice 2021-15

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By Benjamin Gibbons

Earlier this year, Bret Busacker explained the FSA relief enacted as part of the Consolidated Appropriations Act, 2021 (CAA) in a blog post titled “Bridge Over Troubled Water: 2021 Flexible Spending Account Relief in the Consolidated Appropriations Act, 2021.”  The FSA relief in the CAA essentially permits employers to eliminate the “use it or lose it rule” for 2020 and 2021 and to permit mid-year FSA changes to both health FSAs and dependent care FSAs.  The IRS recently issued additional guidance with respect to these FSA relief provisions in IRS Notice 2021-15 (the “Notice”). Read more

If I Could Turn Back Time… And Then Add a Year

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by Leslie Thomson and Brenda Berg

Last October, Brenda Berg posted a blog titled “I’m Just Waiting on an… End to the Extended ERISA Deadline Periods.” In that blog, Brenda explained that the IRS and DOL extended certain deadlines applicable to retirement plans and health and welfare plans.

In sum, under last year’s DOL guidance, employers were required to disregard the period from March 1, 2020 until 60 days after the president declared the COVID Pandemic National Emergency over (the “Outbreak Period”) in calculating employee notices and election deadlines for deadlines including the following:

  • The 30-day period (or 60-day period, if applicable) to request special enrollment under ERISA
  • The 60-day election period for COBRA continuation coverage
  • The date for making COBRA premium payments
  • The date for individuals to notify the plan of a qualifying event or determination of disability under COBRA
  • The date within which individuals may file a benefit claim under the plan’s claims procedures
  • The date within which claimants may file an appeal of an adverse benefit determination under the plan’s claims procedure
  • The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination
  • The date within which a claimant may file information to perfect a request for external review upon a finding that the request was not complete
  • With respect to group health plans, and their sponsors and administrators, the date for providing a COBRA election notice

Read more

Bridge Over Troubled Water: 2021 Flexible Spending Account Relief in the Consolidated Appropriations Act, 2021

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by Bret F. Busacker

On December 27, 2020 Congress passed the Consolidated Appropriations Act, 2021 (CAA). The CAA provides relief for employees whose dependent care and health care FSA accounts were impacted by the pandemic. This relief will allow employers to amend their FSAs to essentially eliminate the so called “use it or lose rule” for FSA balances not used by the end of 2020 and 2021. This relief is accomplished by giving participants up to an additional year to use the unspent amounts in their FSA accounts. Please see a more detailed description of this relief here.

In addition, the CAA also permits employers to amend their dependent care and health care FSAs to permit contribution election changes (e.g., to start, stop, increase or decrease FSA elections) throughout 2021 for any reason. Please see a more detailed description of this relief here. Read more

We Didn’t Start the Fire . . . But We Can Make Sure Employees Are Aware of What Benefits We Offer That Might Help Dampen It

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by Leslie Thomson

Are you providing the benefits your employees desire? Many employers are making changes to their benefit programs as the COVID-19 pandemic continues. The pandemic has decreased access to routine health care services, increased mental health issues, and increased employees’ stress levels as a result of financial concerns and/or juggling working from home while caring for and homeschooling children. Many employers have made changes to their benefit programs to help employees cope with these and other issues, such as:

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I’m Just Waiting on an… End to the Extended ERISA Deadline Periods

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by Brenda Berg

Early in the pandemic, the IRS and DOL issued a temporary rule (published May 4, 2020) extending certain deadlines applicable to retirement plans and health and welfare plans. (See Deadlines and Commitments: DOL and IRS Temporary Rule for COVID for more information about that extension.) Under that temporary rule, the deadlines were generally extended until 60 days after the announced end of the National Emergency due to COVID-19, which was referred to as the “Outbreak Period.” The deadlines are essentially “tolled” during the Outbreak Period. The National Emergency began on March 1, 2020, as declared by President Trump’s Proclamation.

The examples in the temporary rule assumed an end date of April 30, 2020 for the National Emergency, which would have extended the Outbreak Period through June 29, 2020. As we all now know, this National Emergency did not end on April 30, and in fact it is still in place. So we are still waiting for the National Emergency period to end and trigger the normal deadlines.

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If a Tree Falls in the Forest – Employee Benefits in Mergers and Acquisitions Workforce Integration

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by John Ludlum

We are aware of several business studies that conclude that a high percentage, between 70-90%, of corporate acquisitions fail to meet their business objectives. When looking at why the time, effort, and expense invested in a corporate acquisition turn out not to achieve the business synergies and value creation that were expected, it is apparent that workforce integration and commitment after the transaction closes often is a contributing factor to why these acquisitions fail.

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