The 21st Century Cures Act (Cures Act), enacted on December 13, 2016, provides a new opportunity for small employers to help employees pay for health insurance: the “qualified small employer health reimbursement arrangement” (QSEHRA). Under  QSEHRA, certain small employers can give their employees pre-tax dollars to pay for premiums and other medical expenses, so long as the QSEHRA meets certain standards.

Continue Reading QSEHRA – The 21st Century Cures Act Creates a New Health Care Plan Option for Small Employers

The stunning failure of the U.S. House of Representatives to pass the American Health Care Act (AHCA) (which we previously reported on here) has political and policy implications that we cannot forecast. Nor is it clear to us whether or when the Trump administration and Congress will make another effort to repeal and replace, or whether Republicans will seek Democratic support in an effort to “repair,” the Affordable Care Act (ACA). And we are similarly unable to predict whether and to what extent the AHCA’s provisions can be achieved through executive rulemaking or policy guidance. The purpose of this post is not to assess why the AHCA failed, or to speculate on the outcome of any future legislative efforts to repeal and replace the ACA, but rather to offer some thoughts about how the AHCA’s failure will impact employers in the near term. As our title suggests, the news may not be all that bad.

Continue Reading The Future of the Affordable Care Act Week 8: An Employer’s Guide to the Collapse of the American Health Care Act (Spoiler Alert—the News is Not all Bad)

For employers who want to attract and retain the best talent, a robust benefits package is a must. But with political shifts and changing compliance burdens, keeping up with benefits requirements is a daunting task.

First and foremost, employers are concerned about the future of the Affordable Care Act (ACA). The ACA has recently been in the news as a result of the failure of the Republican controlled Congress to pass the American Health Care Act (AHCA). Based loosely on a whitepaper issued by House Speaker Paul Ryan entitled A Better Way, the AHCA was passed by two Committees of the U.S. House of Representatives that collectively were intended to “repeal and replace” the ACA. (We explained the Ryan proposal here, and we cover the implications of the collapse of the AHCA here.)

Continue Reading Mintz Levin Third Annual Employment Law Summit–Panel on Employee Benefits and the future of the ACA . . .

Friendly reminder to our readers that on April 6, 2017, Mintz Levin will be hosting its Third Annual Employment Law Summit at the Princeton Club in New York City.  This half-day seminar will feature as its keynote speaker Liz Vladeck, the Deputy Commissioner for the Office of Labor Policy and Standards at the NYC Department of Consumer Affairs.  Deputy Commissioner Vladeck will discuss NYC’s new Office of Labor Policy and Standards, its initiatives, and enforcement of the expanding universe of NYC employment laws (i.e. Freelance Workers act).  The seminar will also offer various segments on the most important workplace issues of the day, including how the new Trump Administration will impact workplace law, cybersecurity issues in the workplace, equal pay, wage and hour, employee relations, employee benefits, and more – it’s a program that you will not want to miss.  Registration is still open, so if you would like to attend click here.

This event is intended for HR professionals, in-house counsel, and senior executives.

On March 6, 2017, after years of promising, GOP lawmakers in the House of Representatives introduced the “American Health Care Act” (AHCA), the first concrete legislative proposal detailing the initial provisions designed to repeal and replace the Affordable Care Act. The bill is a joint effort of the House Energy and Commerce and Ways and Means Committees, and it closely hews to the “Better Way” proposal previously outlined by House Speaker Paul Ryan (which we discussed here.)

The bill currently is the subject of widespread media scrutiny and intense criticism, not only from Democrats, but from Republicans who argue that the bill either goes too far or not far enough. Assuming a bill ultimately passes and is signed into law, it almost certainly will contain significant changes—for example, relating to the timing of the repeal of Medicaid expansion. Nonetheless, we believe the broad contours of any final legislation are likely in place and thus we offer this analysis of the major provisions.

Continue Reading The Future of the Affordable Care Act Week 7: The American Health Care Act

On April 6, 2017, Mintz Levin will be hosting its Third Annual Employment Law Summit at the Princeton Club in New York City.   This half-day seminar will feature as its keynote speaker Liz Vladeck, the Deputy Commissioner for the Office of Labor Policy and Standards at the NYC Department of Consumer Affairs.  Deputy Commissioner Vladeck will discuss NYC’s new Office of Labor Policy and Standards, its initiatives, and enforcement of the expanding universe of NYC employment laws (including the new Freelance Workers Act and the pending Fair Workweek legislation).  The seminar will also offer various segments on the most important workplace issues of the day, including how the new Trump Administration will impact workplace law, employee cybersecurity issues, equal pay issues during the employment life cycle, dealing with the difficult employee, the latest in employee benefits, and more – it’s a program that you will not want to miss, so register now.

This event is intended for HR professionals, in-house counsel, and senior executives.

For more information and to register, click here.

A recent report from the nation’s top actuaries takes a sobering look at the challenges policy makers face in creating a viable individual (i.e., non-group) health insurance market—a critical component of any plan to replace the Affordable Care Act. Published by the American Academy of Actuaries, the report, entitled An Evaluation of the Individual Health Insurance Market and Implications of Potential Changes outlines, without a hint of partisanship, the necessary conditions for a sustainable individual market, examines the extent to which those conditions are currently being satisfied, and discusses the implications of proposed changes to either improve the ACA insurance market reforms or (as is most likely the case) replace them with an alternative approach.

The paper offers an unvarnished explanation of the impact of the relevant actuarial principles that informed the ACA and that must be negotiated in the process of its replacement. Any policy maker hoping to expand (or at least to expand access to) health insurance coverage, control rising health care costs, and increase the quality of medical outcomes—the three goals of the ACA—would be well advised to read this paper. The actuarial principles expounded in the paper appear to transcend law and politics and any ACA replacement plan that fails to take them in account may face significant, if not insurmountable, hurdles in achieving its objective.

Continue Reading The Future of the Affordable Care Act Week 6: Focus on the Individual Health Insurance Market

On January 25, the Seventh Circuit Court of Appeals issued it much-anticipated decision in EEOC v. Flambeau, Inc. This case involved the regulation of employer-sponsored wellness plans and programs. Since 2006, the rules surrounding wellness programs had been modestly well settled—for tax and benefits purposes. But little was known about the impact of the Americans with Disabilities Act (ADA). At issue in Flambeau is which of two ADA provisions—the voluntary employee health program exception or the safe harbor for “bona fide benefit plans”—also apply to wellness plans. The lower court, the U.S. District Court for the Western District of Wisconsin, ruled against the EEOC, applying the more flexible bona fide benefit plan exception. The EEOC appealed.

The Seventh Circuit’s decision on appeal is a model of judicial restraint. (This is the doctrine that holds that cases ought to be decided on the narrowest grounds possible.) Flambeau “won” on appeal only in the narrow sense that it avoided liability. The Court did not reach the statutory or regulatory issues before it. Rather, it disposed of the case on procedural grounds.

Continue Reading EEOC v. Flambeau, Judicial Restraint, and the (Uncertain) Future of Employer-Sponsored Wellness Programs

This week continues our survey of key Republican proposals to “repeal and replace” the Affordable Care Act (ACA).  In the past two weeks, we have reviewed the Trump/Pence transition plan, entitled “Healthcare Reform to Make America Great Again,” and House Speaker Paul Ryan’s proposal, entitled “A Better Way.”  This week we take up the Empowering Patients First Act and the Restoring Americans’ Healthcare Freedom Reconciliation Act of 2015. The former is intended to replace the ACA; the latter to repeal the ACA’s key features. Congressman Tom Price (R-GA) is the sponsor of both bills.

Continue Reading The Future of the ACA Week 5: The Rep. Tom Price Plan(s)