On April 2, 2018, significant changes to ERISA’s disability claims procedures will take effect. These new rules will require all ERISA-covered plans which provide disability benefits to make significant modifications to the way disability benefit claims are reviewed and decided. This post describes what is changing and why, and the steps employers must take now to ensure compliance.

Continue Reading No More Delays! New Disability Claims Rules to Take Effect April 2, Says DOL

Massachusetts employers with 6 or more employees will soon be required to prepare and file a new health care reporting form referred to as the “healthcare coverage form.” While reminiscent of the now repealed “Health Insurance Responsibility Disclosure” or “HIRD” form requirement, the new form differs significantly. This post explains this new reporting rule.

Continue Reading Massachusetts to (Again) Require Health Care Reporting by Employers

After a long delay, the IRS has begun enforcing the Affordable Care Act’s rules governing shared employer responsibility  (a/k/a the “employer mandate”). This mandate imposes “assessable payments” on Applicable Large Employers (i.e. those with 50 or more full-time and full-time equivalent employees in the prior calendar year) that either fail to offer coverage, or offer unaffordable or insufficiently robust coverage, and where at least one employee qualifies for subsidized coverage from an ACA exchange/marketplace. Demand letters have been issued for 2015 to a number of employers, and in many instances, the assessable payment amounts are substantial. But as Alden Bianchi and Christopher Condeluci argue in Why the IRS May Be Unable to Assess ACA Employer Shared Responsibility Penalties for 2015, a recently published article by Bloomberg/BNA, the IRS may be on shaky ground as it endeavors to assessable payments for 2015, due to the Department of Health and Human Services’ failure to provide notices required by the statute. To read the full article, please click here.

In a November 20, 2017 post, we reported on Massachusetts’ passage of H. 3822, “An Act Further Regulating Employer Contributions to Health Care,” (the “Act”), the purpose of which is to shore up the finances of the Commonwealth’s Medicaid program and its Children’s Health Insurance Program (CHIP). The law has two components or tiers.

Continue Reading Memo to Massachusetts Employers for 2018 and 2019: How Not to Comply with the EMAC New Rules

Tis the season . . . for ERISA disclosure requirements, of course!  Between open enrollment and the calendar year end, the list of documents, notices and updates required under ERISA looms large and annoying.

In these trying months of increased administrative hassle, many employer turn to electronic distribution in order to be environmentally forward, administratively efficient, and cost effective, and respond to wishes of employees who, let’s face it, don’t want (and won’t read) a big pile of paper.  But while electronic distribution is sound business practice, employers should keep in mind that there are rules to follow, at least with respect to ERISA notices.

This article contains a helpful guide to these rules, as well as some helpful steps employers can take to comply.  Note that the article was written shortly before the last presidential election, and while the rules have not changed, some of the author’s predictions about the proliferation of Affordable Care Act audits were based on incorrect assumptions about the election outcome and haven’t exactly come to pass.  Ahem.

The Internal Revenue Service has for some time made available a comprehensive set of Questions & Answers covering the Affordable Care Act’s (ACA) employer shared responsibility rules. (These are the rules that are codified in Section 4980H of the Internal Revenue Code, the compliance with which is reported on IRS Forms 1094-C and 1095-C, etc.) Entitled, “Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act,” this web-based resource provided generally useful information about how the rules worked. Until recently, however, the IRS’ Questions and Answers merely said that the IRS “expects to publish guidance of general applicability describing the employer shared responsibility payment procedures in the Internal Revenue Bulletin before sending any letters to ALEs [Applicable Large Employers] regarding the 2015 calendar year” (Q&A 57). On November 2, that changed. This post explains what happened, and what it means for employers.

Continue Reading IRS (Quietly) Announces Procedures for the Assessment and Payment of Excise Taxes under the Affordable Care Act’s Employer Shared Responsibility Rules

On October 13th, President Trump signed an Executive Order directing various federal agencies to consider how to achieve three administration health reform objectives: (1) expand access to Association Health Plans (AHPs); (2) increase the current limits on short-term health insurance; and (3) allow wider use of employer health reimbursement arrangements so employees can buy coverage on their own in the individual market. This post considers what regulatory actions are necessary to accomplish the first objective—expanded access to AHPs.

Continue Reading Expanding Association Health Plans—Which Agencies Need to do What

In recent weeks, the Trump Administration has been considering allowing health insurance to be purchased across state lines and expanding access to “Association Health Plans” (AHPs) that could take economic advantage of cross-border purchasing. President Trump is expected to issue an executive order this week to make that happen without legislation.

This post addresses the key issue of whether the administration has the authority under existing law to act on its own initiative, and in doing so, it will address the seminal legal issues affecting AHPs under federal and state law.  As explained below, we conclude that the administration has some—and perhaps even ample—authority to act without Congress, and that any legal constraints will depend on how the AHPs are structured.

Continue Reading Association Health Plans—Can The Trump Administration Expand Access Without Congress?

At this writing, the prospects for success of the latest Republican effort to replace the Affordable Care Act appear bleak—but the Graham-Cassidy bill on which the GOP has pinned its last-ditch hopes highlights a major political and policy flashpoint in the fight to repeal, replace, or repair the law: the degree to which states should be free to innovate and experiment by adopting non-standard health insurance product designs in their individual and small group markets. Under current law, there is little flexibility. Proposals abound to change this, but to do so invites consequences with which lawmakers must be prepared to deal—involving complex economic and actuarial issues and fundamental questions regarding the role of the federal government and the states in health care.

This post addresses these issues.

Continue Reading Fractal Geometry, Actuarial Risk, and §1332 Waivers—The Role of the States in Reforming Health Care