United States: Benefits Broadcast - June 1, 2016

Employers sponsoring health and welfare benefit plans for their employees continue to face an ever-changing landscape of compliance requirements. Summaries of important new developments, as well as some timely reminders about on-going compliance issues, are provided below.

We hope that you find this edition of the Benefits Broadcast helpful. If there is a subject you would like to see covered, let us know. Contact any member of BakerHostetler's Employee Benefits team with questions or comments.

In This Issue

  • EEOC Issues Final Rules on Wellness Program Incentives Under the ADA, GINA
  • Nondiscrimination Protection Under the Affordable Care Act
  • Subrogation and Recovery: You Snooze, You Lose Lessons From Montanile v. Board of Trustees
  • How to Respond to a Notice From the Health Insurance Marketplace
  • That Your Employee Has Qualified for an Advance Premium Tax Credit
  • The Stealth Excise Tax Under Section 4980D of the Internal Revenue Code
  • Audit Focus for Retirement and Health and Welfare Plans
  • The Importance of Incorporating ACA-Compliant Language in Your Welfare Plan SPD

EEOC Issues Final Rules on Wellness Program Incentives Under the ADA, GINA

On May 17, 2016, the Equal Employment Opportunity Commission (the "EEOC") finalized regulations on wellness program incentives permissible under the Americans with Disabilities Act (the "ADA"), which prohibits discrimination on the basis of disability status, and the Genetic Information Nondiscrimination Act ("GINA"), which prohibits discrimination on the basis of genetic information. The rules were published in proposed form in April 2015. The final rules limit incentives available through wellness programs to ensure that such incentives do not become coercive or a means through which employers are able to discriminate against certain employees on the basis of disability or genetic information. Under both the ADA and GINA, "incentives" include both rewards and penalties, both financial and in kind. The final rules are very similar to their proposed versions, with changes including the addition of rules related to participant confidentiality and simplification of the GINA "apportionment" rules.

HIPAA. The EEOC joins the Departments of Labor, Treasury, and Health & Human Services (the "Tri-Departments") as the fourth federal agency to have oversight over employer-sponsored wellness programs and incentives available to employee participants through them. The Tri-Departments are responsible for enforcing the Health Insurance Portability and Accountability Act ("HIPAA"), which, as amended by the Patient Protection and Affordable Care Act, also regulates permissible incentives under employer-sponsored wellness programs. Under HIPAA, wellness programs are divided into participatory and health-contingent programs, determined based on the nature of the requirements for obtaining an incentive through the program. The HIPAA regulations do not impose a limit on the incentives for participatory wellness programs. They do, however, limit incentives for health-contingent wellness programs to 30 percent of the total cost of enrolled coverage – and up to 50 percent when a tobacco cessation component is in play.

ADA. Under the ADA, employers are generally prohibited from obtaining medical information about employees by requiring medical examinations or making disability-related inquiries, with limited exceptions. There is an exception for employee participation in a "voluntary employee health program," which the EEOC interprets to include many employer-sponsored wellness programs. The final rules apply to all employer-sponsored wellness programs that require medical examinations or make disability-related inquiries (thereby, subject to the ADA) – regardless of whether such program is associated with a health plan, or would be considered participatory or health contingent under HIPAA – and endeavor to define what constitutes a "voluntary" health program.

Under the final rules, a health program is not voluntary if it (i) requires employees to participate, (ii) denies health coverage for failure to participate, (iii) results in any adverse employment action, threat or retaliation for failure to participate, or (iv) does not provide adequate notice of the medical information to be obtained and how it will and will not be used. Additionally, to be considered a "voluntary" wellness program, incentives must not exceed 30 percent of the total cost of self-only coverage.

GINA. The GINA regulations tackle the "very limited question" of offering wellness program incentives to an employee for his or her spouse to provide information about the spouse's manifestation of any disease or disorder. This rule comes about due to the EEOC's (strange?) position that an employee's spouse's medical information is the employee's genetic information. GINA prohibits employers from conditioning any "inducement" on the employee disclosing genetic information. "Genetic information" includes the manifestation of any disease or disorder in a family member – including a spouse. Often, employer-sponsored wellness programs are available to employees' spouses and dependents who participate in the employer's health plan. And, often, obtaining a wellness program incentive requires a health risk assessment (an "HRA"), which makes certain inquiries into the manifestation of diseases and disorders in participants. Under the definitions given in GINA, a spouse's HRA is considered to be an employee's genetic information – and offering an incentive for it would violate GINA's prohibition against inducements.

The EEOC recognized that this interpretation may run counter to Congress' and the Tri-Departments' efforts to encourage wellness programs, and so struck a balance by imposing limits on incentives available for an employee's spouse to complete an HRA. (As in the proposed rules, incentives for an employee's children to complete HRAs are still prohibited.) Under the final rules, incentives may be offered for both the employee's participation and the spouse's disclosure of his or her own medical information. The proposed rules set out a complicated "apportionment" standard that resulted in different incentive limits applicable to employees and their spouses. In the preamble to the final rules, the EEOC recognized the administrative difficulty and questionable policy behind the proposed apportionment standard, and instead finalized a simplified version, which allows equal maximum incentives. Under the final rules, each incentive is limited to 30 percent of the total cost of self-only coverage, for a total available incentive for the employee and spouse not to exceed 60 percent of the total cost of self-only coverage.

Highlights. Despite commenters' requests, the final rules under the ADA and GINA are not synchronized with HIPAA's incentive limits. The EEOC declined to limit applicability of these thresholds to health-contingent wellness programs, as in HIPAA. Further, the EEOC declined to apply the 30 percent threshold against the total cost of the enrolled coverage, as in HIPAA. The EEOC reasoned that because the ADA only prohibits discrimination against employees and applicants – not their spouses and dependents – self-only coverage was the appropriate benchmark. The GINA final rules were drafted to use an identical benchmark.

The EEOC also added parallel provisions to both the ADA and GINA final rules regarding participants' confidentiality rights. Under this new provision, an employer may not require a participant to agree to the sale, exchange, sharing, transfer or other disclosure of medical/genetic information, or to waive confidentiality protections as a condition for participating or receiving an incentive.

Nondiscrimination Protection Under the Affordable Care Act

On May 16, 2016, the Department of Health & Human Services ("HHS") Office of Civil Rights ("OCR") issued final rules implementing Section 1557 of the Patient Protection and Affordable Care Act (the "ACA"). The final rules prohibit discrimination in health programs and health activities on the basis of race, color, national origin, sex, age or disability. Specifically, the final rules:

  • Require that women be treated equally with men in the healthcare services that they receive, including that women cannot be charged more for healthcare coverage or services than men.
  • Prohibit denying healthcare or coverage based on an individual's sex, including gender identity.
  • Prohibit a covered entity from denying or limiting coverage or benefits for a claim, or impose additional cost-sharing or other limits on coverage, for sex-specific services provided to a transgender individual just because the individual requesting such services identifies as belonging to another gender
  • Prohibit any categorical exclusion of coverage for all health services related to gender transition, as well as limiting coverage or imposing additional cost-sharing or other limits or restrictions on such coverage if they result in discrimination against a transgender individual.
  • Require reasonable steps to provide meaningful access to individuals with limited English proficiency and disabilities, including notice requirements.
  • Provide a private right of action and damages for violations.

For purposes of these rules, a "covered entity" is any health program or activity that receives funding from HHS, such as hospitals or providers that accept Medicare or Medicaid payments, the health insurance marketplaces and the issuers that participate in the marketplace, and any health program that the HHS administers. This definition sweeps in almost every healthcare provider and health insurance company, including those that may serve as a third-party administrator ("TPA"). While the OCR recognizes that a TPA providing services to an employer's self-funded group health plan is not responsible for the plan's design, the OCR can review any claims of discrimination brought against the health plan. Issues of plan administration may be the responsibility of the TPA, but issues of plan design will be reviewed to determine whether the issue should be referred to the Equal Employment Opportunity Commission to pursue a discrimination claim against the employer.

Although portions of ACA Section 1557 have been effective since 2010, the final nondiscrimination rules regarding benefit plans are effective on the first day of the plan year beginning on or after January 1, 2017. Now is a good time to review your benefit plan designs and consult with your insurance providers or TPAs to make sure that your plan will be ready to comply.

Subrogation and Recovery: You Snooze, You Lose Lessons From Montanile v. Board of Trustees

The recent Supreme Court decision in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 U.S. __, 2016 (decided Jan. 20, 2016) is a cautionary tale to plan fiduciaries that value their rights of subrogation and recovery. Act fast to protect and enforce those rights, says the Court, because "equitable relief" under ERISA § 502(a)(3) can run out just as fast as participants can spend it.

The National Elevator Industry Health Benefit Plan (the "Plan") paid $120,000 to cover medical expenses for participant Robert Montanile resulting from injuries incurred in an automobile accident. The Plan contained a subrogation clause requiring a participant to reimburse the Plan for medical expenses if the participant later recovers money for the injuries from a third party. Montanile further signed a reimbursement agreement, affirming his obligation to reimburse the Plan.

Montanile later obtained a $500,000 settlement from the culpable driver and uninsured motorist benefits. The Plan's administrator (the "Board") sought reimbursement from the settlement funds, but Montanile's attorney refused to disburse the settlement directly to the Plan. Later, Montanile's attorney notified the Board that the settlement would be disbursed to Montanile, unless the Board objected. The Board did not respond, let alone object. Six months later, the Board brought suit against Montanile for reimbursement. In the intervening half-year, Montanile spent the settlement funds on untraceable items.* The Board instead sought recovery from Montanile's general assets under ERISA § 502(a)(3).

ERISA § 502(a)(3) provides that a participant, beneficiary or fiduciary may bring civil suit "to obtain other appropriate equitable relief (i) to redress [ERISA or plan] violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan." The decision in Montanile turns on the meaning of "appropriate equitable relief." Supreme Court precedent establishes that what is "equitable" depends on both (i) the basis for the claim and (ii) the nature of the remedy sought.

The Plan terms created an "equitable lien by agreement." Enforcing such a lien is a claim based in equity. Seeking recovery from "specifically identifiable" funds in the defendant's actual or constructive possession is an equitable remedy; however, seeking reimbursement from the participant's general assets is not.

As a result, the Supreme Court held that although the Board's claim satisfied the first prong, the remedy it sought failed the second. To drive home the moral of this story, the Court noted that "the nature of the Board's underlying remedy would have been equitable had it immediately sued to enforce the lien against the settlement funds then in Montanile's possession." (emphasis added).

The Supreme Court sent a clear message to plan fiduciaries seeking to protect their rights of recovery: You snooze, you lose. Keep a close eye on the funds to which your plan is entitled, and act fast to preserve your equitable claim and right to equitable recovery.

* The Supreme Court cites food, travel and services as examples, although perhaps we shouldn't rule out a coffee can buried in the backyard. The case was remanded to the Eleventh Circuit to determine whether, as a factual matter, Montanile actually spent the settlement funds on untraceable items.

How to Respond to a Notice From the Health Insurance Marketplace That Your Employee Has Qualified for an Advance Premium Tax Credit

Starting in 2016, the Federal Health Insurance Marketplace (the "Marketplace") will send notices to applicable large employers whose employees received advance premium tax credits and cost-sharing reductions, if those employees claimed that they were neither enrolled in nor eligible for employer-sponsored group health plan coverage that is affordable and meets the minimum value requirement under the Patient Protection and Affordable Care Act. Such notices are currently in the process of being sent following the close of open enrollment for the 2016 coverage year, and they will continue to be sent periodically throughout the remainder of 2016. This year, a notice will be sent only if an employee included his or her employer's mailing address on his or her application for Marketplace coverage. However, in the future, the Marketplace will consider alternative ways of contacting employers.

If you are an applicable large employer and receive such a notice, you may appeal it and provide evidence that you do provide access to affordable group health coverage that provides minimum value and/or that the identified employee is enrolled in your group health coverage and therefore ineligible for an advance premium tax credit or cost-sharing reduction from the Marketplace. You will have 90 days from the date of the notice to request such an appeal. If you receive a notice from the Marketplace and would like assistance in the appeal process, please let us know and we can provide you with more information and assistance.

The Stealth Excise Tax Under Section 4980D of the Internal Revenue Code

Most employers are by now well aware of the "pay or play" penalties that may apply if the employer fails to offer coverage to substantially all of its full-time employees or offers coverage that fails to be affordable for some employees. The imposition of those potential penalties was delayed until 2015 and significantly moderated for that first year of applicability. However, another potential excise tax penalty for failure to comply with a variety of healthcare reform requirements applies under Section 4980D of the Internal Revenue Code (the "Code") and went into effect in 2010.

The 4980D excise tax equals $100 per day per "affected individual" to whom a compliance failure relates. In other words, the tax could be as much as $36,500 per person per year, as compared to the maximum $2,000 or $3,000 per person per year penalty for the failure to offer coverage or the offer of unaffordable coverage, respectively. In addition, the penalty is triggered by a long list of healthcare reform and related legislative requirements, including not imposing any annual or lifetime limits on essential health benefits, covering preventive services at 100 percent, providing the Summary of Benefits and Coverage to covered persons, meeting health status nondiscrimination and claim appeal external review requirements, and complying with the requirements of the Newborns' and Mothers' Health Protection Act, the Mental Health Parity and Addiction Equity Act, the Women's Health and Cancer Rights Act, Michelle's Law, and the notice requirements regarding Medicaid coverage under the Children's Health Insurance Program Reauthorization Act ("CHIPRA").

In short, any of a number of compliance failures could trigger the 4980D excise tax penalty. Employers sponsoring group health plans are generally the ones liable for the tax, if it applies, and must file and self-assess the tax using IRS Form 8928. There is a cap on the amount of tax for unintentional failures of $500,000, but the cap applies only if the failure was due to "reasonable cause and not to willful neglect." While this standard has not yet been defined for this purpose, in other situations where a similar standard applies under the Code, it is a high hurdle. Being unaware of what is required is not "reasonable cause," and thus the full penalty may apply unless the reason for the failure is largely beyond the control of the employer. A careful review of your plan's compliance with the many requirements that can trigger this tax is recommended. 

Audit Focus for Retirement and Health and Welfare Plans

Over the past several years, governmental audit activity has been on the rise. In 2013, the Department of Labor (the "DOL") reportedly hired 1,000 new ERISA plan auditors. With upcoming changes in the benefits world, including the significant curtailment of the IRS's determination letter program, we expect that audits will only become more common. Here is a brief summary of "hot" audit topics for both retirement and health and welfare plans

  • Of late, DOL audits have an increased focus on retirement plan distributions – particularly to ensure that retirement plan administrators (i) make proper and timely distributions at normal retirement age (as defined by the plan) as well as required minimum distributions (age 70½ distributions) and (ii) take appropriate steps to locate missing participants or beneficiaries. Shortcomings in these areas could result in fiduciary liability and could catch the eye of either the IRS or the DOL. Prevent being surprised by an issue or audit by ensuring that your participant data – particularly with respect to age and location – is clean and up to date. In addition, ensure that steps are taken to try to locate missing participants through a reputable locator service.
  • This spring, the Department of Health & Human Services Office for Civil Rights (the "OCR") announced plans to begin its second round of Health Insurance Portability and Accountability Act ("HIPAA") compliance audits. The second round of audits will consist primarily of remote desk audits; however, a select few lucky covered entities may face extensive on-site audits. OCR will use its newly revised, quite lengthy HIPAA Audit Protocol to conduct the assessments. If you sponsor a group health plan that is a covered entity under HIPAA, you can, and should, use the revised protocol to monitor ongoing compliance activities and improve your compliance program. Notification of an audit may be delivered by email, and if notified of an audit, you may have only a very brief period of time in which to produce the requested materials (e.g., 10 business days)

The Importance of Incorporating ACA-Compliant Language in Your Welfare Plan SPD

For many years, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), has required employers to provide to group health plan participants and newly eligible employees a Summary Plan Description (an "SPD") that generally describes the terms of the plan, including a description of plan eligibility requirements. More recently, the Patient Protection and Affordable Care Act (the "ACA") established specific eligibility requirements for employer-provided group health plans. If your group health plan modified its eligibility rules to satisfy the ACA requirements, then you should update the eligibility provisions in your existing group health plan's SPD. Specifically, the SPD should include a description of: (i) the measurement method used (look-back or monthly) to determine full-time employees, (ii) the employee groups to which the measurement method applies, and (iii) if using the look-back method, the length of the measurement, stability, and administrative periods being used. In addition, you may want to include additional details on eligibility determinations for rehires, unpaid leave, and change in employment status (e.g., part time to full time). 

Even if existing SPDs do not contain provisions that expressly conflict with the ACA requirements, you should still clearly describe any new ACA eligibility provisions in an updated SPD. In addition to complying with ERISA and the ACA, clearly described ACA-compliant eligibility provisions should help you reduce potential conflicts with employees and risks of litigation, both from employees and from the IRS, over who was offered coverage and who was not. Finally, note that while enforcement of ERISA's SPD requirement has historically been inconsistent, the number of audits of group health plans by the Department of Labor since the implementation of the ACA's new eligibility requirements is on the rise. It is better to be safe than sorry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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