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This Time With Feeling – Employer Paid Individual Policies Violate ACA

February 24, 2015


Employer payment plans, which include arrangements where an employer pays, or reimburses an employee, for some or all of the premium expenses incurred for an individual health insurance policy, violate market reforms under the Affordable Care Act (“ACA”).

Notice 2015-17 is the latest in a series of IRS guidance on these arrangements (see our earlier post on this topic here). While it reiterates previous conclusions regarding the failure of the arrangements to satisfy the ACA, it also provides excise-tax transition relief for certain small employers.

Limited Transitional Relief for Non-ALEs

Noncompliant group health plans may be liable for a $100/day excise tax for failure to satisfy ACA market reforms. The new Notice, while reiterating that conclusion, provides that the tax will not be asserted under two conditions:

  • Until June 30, 2015, if the plan is not sponsored by an Applicable Large Employer (“ALE”). An ALE, for
  • The Anthem Breach – What Next?

    The Anthem Breach – What Next?

    February 12, 2015

    Authored by: David Zetoony and Lisa Van Fleet

    The facts surrounding the Anthem breach continue to evolve as does Anthem’s handling of the situation.

    Based on the current status of the investigation, and Anthem’s current reactions to the incident, there are steps which group health plan sponsors should consider taking to fulfill their own HIPAA and fiduciary obligations with respect to group health plans affected by the Anthem breach. These steps include the following:

    • Have business associate agreements and other relevant documents reviewed to assess the plan sponsor’s rights and obligations with respect to the breach.
    • Request from Anthem:
      • additional information about the breach;
      • confirmation concerning the steps that will be taken to protect the plan sponsor’s employees and affected individuals;
      • more extensive victim protection, client indemnification, and paid notification than Anthem is currently proposing to offer; and
      • confirmation that any state notification requirements will be satisfied on behalf plans

    Fourth Circuit: Plan Administrator Must Obtain “Readily Available Information” in Claims Determination

    What is a plan administrator’s obligation under ERISA to seek and obtain information potentially relevant to a participant claim where the participant has not provided it? The Fourth Circuit recently provided guidance on that issue in the case of Harrison v. Wells Fargo Bank, N.A. A copy of that opinion is available here.

    Nancy Harrison was an online customer service representative for Wells Fargo Bank. In 2011, she underwent a thyroidectomy to remove a large mass that had extended into her chest and which caused chest pain and tracheal compression. She was unable to work and received short-term disability benefits under the Wells Fargo plan. While she was recovering and waiting for a second, more invasive surgery, her husband died unexpectedly, triggering a recurrence of depression and post-traumatic stress disorder (PTSD) related to the death of her children in a house fire a few years before.

    Relationship Talk: Same-Sex Couples May Marry in Missouri

    November 6, 2014


    I have a friend who has lived in St. Louis with his same-sex partner for years. About a year ago, we were discussing same-sex marriage rights and my friend expressed his hope that Missouri would NOT join the other states that permit same sex couples to marry because he was not sure he wanted to commit to his partner. Well, my friend, you now face the same dilemma as commitment-phobic partners in opposite-sex couples, and can no longer blame the law for your failure to commit.

    Yesterday, a St. Louis Circuit Court judge ruled that Missouri’s ban on same-sex marriage is unconstitutional and “in violation of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution.” It was just a month ago that a Missouri court held that same sex marriages performed in other states would be recognized in Missouri. That ruling required

    2015 Qualified Plan Limits!

    2015 Qualified Plan Limits!

    October 24, 2014

    Authored by: Julie Wagner and Lisa Van Fleet

    They’re here!  The 2015 IRS plan limitations arrived a full week earlier than last year.  Most of the limitations have been adjusted upwards.  See the chart below (after the jump) to see the new limits as well as a summary of the limits over the preceding three years.

    Act Now to Obtain a Controlling Health Plan HPID

    Health PlanIn light of the numerous unresolved issues surrounding the process for plan sponsors to obtain a health plan identifier (“HPID”) for their  self-funded health plan, we suggested in an earlier post that plan sponsors consider delaying the application process in the hope that regulators would address at least some of the unanswered questions.  Since that time, the Centers for Medicare and Medicaid Services (“CMS”) has updated its Health Plan and Other Entity Enumeration System User Manual and issued a set of Frequently Asked Questions.  As the deadline for obtaining an HPID approaches, the time for waiting is over.

    HPIDs are obtained through the Health Plan and Other Entity Enumeration System (“HPOES”) portal, which is a component of the CMS Health Insurance Oversight System (“HIOS”).   However, plan sponsors must first obtain access to the CMS Enterprise

    Same-Sex Marriages Performed in Other States Recognized in Missouri

    October 3, 2014


    Twenty states and counting. Same-sex marriages are now recognized in 20 states and the District of Columbia. The most recent addition to this growing group is the state of Missouri.

    Pursuant to a ruling issued earlier today by Jackson County Circuit, Judge J. Dale Youngs, the state of Missouri must recognize the marriages of same sex couples legally performed in other states.

    The ruling was made in a lawsuit filed by 10 same-sex couples who were legally married in other states. The couples argued that Missouri’s refusal to recognized their marriage violated their equal protection and due process rights. Judge Youngs agreed that the ban served no legitimate government interest and Missouri must recognize same-sex marriages in the same manner that it recognizes the marriage of opposite-sex couples legally married in other states.

    The ruling only requires that Missouri recognize same-sex marriages legally performed in other states. It does not

    Proposed Rule Re-defining ERISA “Fiduciary” Delayed (Still)

    Regulations and RulesBroker-dealers and financial advisers may have gained some breathing room as a congressional battle to broaden ERISA’s definition of “fiduciary” loses steam.  In the following discussion, we will summarize the current state of that battle.

    At issue is the innocuous-sounding “Conflict of Interest Rule” proposed by the Employee Benefit Security Administration (“EBSA”), that has nonetheless sparked searing critiques from the investment advice industry, which contends it could dramatically increase costs and reduce access to quality investment advice for millions of American workers.  The re-proposal of the controversial rule has been delayed again, this time until January 2015, well after the mid-term elections in November.  Assuming a six-month comment period and six months of hearings to develop final regulations, the final rule could be up for

    Final Rule Clarifies Application of 30-Day Maximum for Orientation Periods

    Late Friday afternoon, the Departments of Treasury, Labor and Health and Human Services (the “Departments”) issued final regulations (the “Final Rule”) clarifying the interaction between a reasonable and bona fide employment-based orientation period and the 90-day waiting period limitation under the Affordable Care Act (“ACA”).


    For plan years beginning on or after January 1, 2014, ACACircle a Date prohibits a group health plan from applying a waiting period of more than 90 days. Contemporaneous with the February 24, 2014 issuance of final regulations on the 90-day limitation, the Departments issued proposed regulations addressing employee orientation periods.  Such proposed regulations provide that conditioning plan eligibility on an employee’s completion of a reasonable and bona fide employment-based orientation period would be permissible if the orientation period does not exceed one

    Another Same-Sex Marriage Ban Falls: FMLA Implications

    On June 6th, a Wisconsin federal district court held that state laws prohibiting same-sex marriage are unconstitutional in the matter of Wolf v. Walker.  This decision is the latest in a series of rulings in favor of same-sex marriage since the Supreme Court overturned section three of the Defense of Marriage Act in United States v. Windsor, nearly one year ago.  Since Windsor, judges in eight states (AR, ID, MI, OK, TX, UT, VA, and WI) have overturned same-sex marriage bans, and judges in four other states (IN, KY, OH, and TN) have issued more limited rulings in favor of same-sex marriage. On June 13th, the district court judge issued an injunction against enforcement of the ban, but stayed the order pending the outcome of the defendant’s appeal to the Seventh Circuit Court of Appeals.

    For the employee benefits community, this decision will have an impact

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