The Centers for Medicare and Medicaid Services (CMS) published its final rule and fact sheet for benefit payment and parameters for 2020. Although the final rule primarily affects the individual market and the Exchanges, the final rule addresses the following topics that may impact employer-sponsored group health plans:
The 2020 maximum annual limitation on cost sharing is $8,150 for self-only coverage and $16,300 for other-than-self-only coverage.
For fully-insured plans, any indication of a reduction in the generosity of a benefit for individuals that is not based on clinically indicated, reasonable medical management practices is potentially discriminatory.
Amounts paid toward cost sharing using direct support by drug manufacturers (for example, coupons) to insured patients to reduce or eliminate immediate out-of-pocket costs for specific prescription brand drugs that have a generic equivalent are not required to be counted toward the annual limitation on cost sharing.
Federally Facilitated Small Business Health Options Programs (FF-SHOPs) may operate a toll-free hotline rather than a more robust call center.
The final rule is effective on June 24, 2019. The final rule generally applies to plan years beginning on or after January 1, 2020.
Question: Can an employee change a pretax plan election after the employer’s open enrollment window has closed but before the plan year has begun? Are there any potential downsides for allowing this?
Answer: Yes, an employee may make a change to his or her benefit election after open enrollment has ended but before the plan year begins. However, there are potential downsides for allowing such a practice.
In general, open enrollment is a period of time set by the employer for employees to enroll, terminate, and/or make changes to their existing benefit elections for the following plan year. The purpose of the deadline is to ensure timely and accurate administration of such elections, and to treat employees similarly.
In deciding how to handle this situation, the employer would want to consider:
Does the insurance carrier or the group policy have specific requirements?
If an exception is made, other employees must also be allowed to change their elections after the open enrollment deadline. Employees must be treated similarly; the employer cannot make an exception for one person.
How clear were the open enrollment written communications in stating changes could not be made after the deadline (except in connection with a qualifying event)? Employers must make sure their communications clearly state when and how changes may be made after the deadline.
Allowing changes after the deadline typically involves more work on behalf of the administrator, subjects employees to coverage and claims errors, and leaves employees with the understanding that exceptions will be allowed. Employers should review their policies carefully and make sure they are clearly communicated.
The guidelines for employers regarding who they can or cannot classify as a W-2 employee or a 1099 Contractor have seen some changes in past years, but the latest court ruling means some dramatic changes are going to be taking place as businesses come into compliance with the new standard. On April 30, 2018, the California Supreme Court passed down a ruling regarding the classification of W-2 employees and 1099 contractors which alters it yet again. So listen up, as this may impact your business!
Previously there was a lengthy multi-factor test that an employer would use to determine if they had classified all of their 1099 contractors correctly or if they needed to re-classify them as W-2 employees. Now the California Supreme Court is stating that employers need to use the ABC test.
The test established by the Court in California reads as follows:
“The [new] ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity’s business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.” – Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018)
This new standard makes California’s policy regarding independent contractors one of the most restrictive in the United States.
Employers who traditionally hire employees for short periods to help them get through their busy season but pay them as 1099 contractors will no longer be able to do so. If you hire someone to perform the same work that your company already performs, even if it is for a shorter period of time, they will need to be hired and paid as any other W-2 employee.
This will mean increased costs for employers in many areas including, but not limited to, increased taxes through FICA, workers comp premiums, and in some cases health benefit premiums if the employees meet the eligibility criteria. However, even with the potential increase in costs, the penalty for non-compliance with the new 1099 employee test could be much higher.
Recently, the President signed a bill repealing the Affordable Care Act’s Individual Mandate (the tax penalty imposed on individuals who are not enrolled in health insurance). While some are praising this action, there are others who are concerned with its aftermath. So how does this affect you and why should you pay attention to this change?
First, as an individual, if you do not carry health insurance, you are currently paying a penalty of $695/adult not covered and $347.50/uninsured child with penalties going even as high as $2085/household. These penalties have been the deciding factor for most uninsured Americans—go broke buying insurance but they have insurance or go broke paying a fine and still be uninsured. With the repeal signed in December 2017, these penalties are zeroed out starting January 1, 2019. While it seems that the repeal of the tax penalty should be good news all around, it does have some ramifications. Without reform in the healthcare arena for balanced pricing, when individuals make a mass exodus in 2019, we can expect higher premiums to account for the loss of insured customers.
As a business, you are still under the Employer Mandate of the ACA. There have been no changes to the coverage guidelines and reporting requirements of this Act. However, with healthy people opt-ing out of health insurance coverage, the employer premiums can expect to be raised to cover the increased expenses of the sick. Some do predict the possibility of the repeal of some parts of the Employer Mandate —specifically PCORI fees and employment reporting. The Individual and Employer Mandates were created to compliment each other and so changes to one tend to mean changes to the other.
So, why should you pay attention to this change? Because the balance the ACA Individual Mandate was designed to help make in the health insurance marketplace is now unbalanced.
Taking one item from the scale results in instability. Both employers and employees will be affected by this tax repeal in one way or another.
On August 1, 2018, the Internal Revenue Service, the Department of Health and Human Services (HHS), and the Department of Labor (collectively, the Departments) released a final rule that amends the definition of short-term, limited-duration insurance. HHS also released a fact sheet on the final rule.
According to the Departments, the final rule will provide consumers with more affordable options for health coverage because they may buy short-term, limited-duration insurance policies that are less than 12 months in length and may be renewed for up to 36 months.
The final rule will apply to insurance policies sold on or after October 2, 2018.
Since the ACA was enacted eight years ago, many employers are re-examining employee benefits in an effort to manage costs, navigate changing regulations, and expand their plan options. Self-funded plans are one way that’s happening.
In 2017, the UBA Health Plan survey revealed that self-funded plans have increased by 12.8% in the past year overall, and just less than two-thirds of all large employers’ plans are self-funded.
Here are six of the reasons why employers are opting for self-funded plans:
1. Lower operating costs frequently save employers money over time.
2. Employers paying their own claims are more likely to incentivize employee health maintenance, and these practices have clear, immediate benefits for everyone.
3. Increased control over plan dynamics often results in better individual fits, and more needs met effectively overall.
4. More flexibility means designing a plan that can ideally empower employees around their own health issues and priorities.
5. Customization allows employers to incorporate wellness programs in the workplace, which often means increased overall health.
6. Risks that might otherwise make self-funded plans less attractive can be managed through quality stop loss contracts.
If you want to know more about why self-funding can keep employers nimble, how risk can be minimized, and how to incorporate wellness programs, contact us for a copy of the full white paper, “Self-Funded Plans: A Solid Option for Small Businesses.”
Question: Is medical marijuana use protected by the Americans with Disabilities Act (ADA)? If so, what accommodations would be considered reasonable?
You are not required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA). Even though medical marijuana is legal in many states, under the federal Controlled Substances Act (CSA), marijuana is still illegal. The ADA expressly excludes people who use illegal drugs from its definition of “qualified individual with a disability.”
However, as a best practice, you should still engage in the ADA interactive process if a request for a reasonable accommodation for medical marijuana use is made. Under the ADA, employers are required to provide reasonable accommodation to qualified individuals with disabilities unless doing so would cause an undue hardship on the employer. Any request for a reasonable accommodation triggers an interactive process with the employee to determine:
Whether the employee or applicant is a qualified individual with a disability, meaning they can perform the essential functions of the job with a reasonable accommodation; and
What the employee’s needs are, and which appropriate accommodations could be made.
If the employee’s physician has determined that medical marijuana is the most effective treatment, a possible reasonable accommodation would be a waiver of your anti-drug policy. However, if the employee is in a safety-sensitive position, it may pose an undue hardship to make that accommodation and you should consider any other possible accommodations before denying the request.
There are no reasonable accommodations that would work in every circumstance. You will need to review the essential functions and safety requirements of the job with the employee to determine what types of reasonable accommodations may be acceptable while not imposing an undue hardship.
The Courts May Not Concur
While medical marijuana use is not protected by the ADA, this is being challenged at the state level. For example, in July 2017, the Massachusetts Supreme Judicial Court held in Barbuto v. Advantage Sales and Marketing that an employee who was fired after testing positive for marijuana could proceed with a “handicap discrimination” claim under the Massachusetts Fair Employment Practices Act.
In allowing the employee’s discrimination claim to go forward, the Court expressly rejected the employer’s argument that, because marijuana is illegal under federal law, requiring an employer to accommodate medical marijuana use is per se unreasonable.
Instead, the Court held that, at a minimum, the employer was obligated to engage in an interactive dialogue concerning the employee’s ongoing medicinal marijuana use before terminating her employment. The Court did not rule out the possibility that accommodating medicinal marijuana use could pose an undue hardship, leaving that issue open for the employer to address at a later date.
The Department of Labor’s model Family and Medical Leave Act (FMLA) notices and certification forms were originally due to expire on May 31, 2018, but were extended twice, and now expire on August 31, 2018. Once approved by the Federal Office of Management and Budget, the new FMLA forms will be valid through 2021.
The forms with the extended expiration date of August 31, 2018 are as follows:
OSHA Proposal to Eliminate Electronic Submission of Forms 300 and 301 for Certain Large Employers
On July 27, 2018, the Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking (NPRM) to better protect personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the “Improve Tracking of Workplace Injuries and Illnesses” rule. OSHA believes this proposal maintains safety and health protections for workers, protects privacy, and reduces the burdens of complying with the current rule.
The proposed rule eliminates the requirement to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are currently required to maintain injury and illness records. These establishments would be required to electronically submit information only from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).
Under the current recordkeeping rule, the deadline for electronic submission of calendar year (CY) 2017 information from OSHA Forms 300 and 301 was July 1, 2018. In subsequent years, the deadline is March 2. OSHA is not currently accepting the Form 300 or 301 data and will not enforce the deadlines for these two forms without further notice while this rulemaking is underway. The electronic portal collecting Form 300A data is accepting CY 2017 data, although submissions after July 1, 2018, will be considered late.
“Design thinking” is a fairly common term. Even if the phrase is new to you, it’s reasonably easy to intuit how it works: design thinking is a process for creative problem solving, utilizing creative tools like empathy and experimentation, often with a strong visual component. The term dates from 1968 and was first used in The Sciences of The Artificial, a text written by Nobel Laureate Herbert Simon.
For Simon, design thinking involved seven components, but today it’s usually distilled to five: empathize, define, ideate, prototype, test. In this way, creative tools are employed to serve individuals in a group, with a solution-driven focus. It’s important to note that these components are not necessarily sequential. Rather, they are specific modes, each with specific tools that contribute equally to solving an issue.
Boese says that the key shift design thinking offers any team is the opportunity to troubleshoot solutions before they’re put into real-time practice. The main goal of design thinking is not process completion, low error rates, or output reports, as with other forms of HR technology, but employee satisfaction and engagement. More often than not, this leads to increased morale and even more opportunities for success.
Lately, there’s been a big focus on America’s opioid addiction in the news. Whether it’s news on the abuse of the drug or it’s information sharing on how the drug works, Americans are talking about this subject regularly. We want to help educate you on this hot topic. Check out this short video for more!
I have joined the class that Ron invited me to regarding HR and FMLA, etc. Thank you for your ongoing support and assistance; it is a pleasure doing business with you.”