Articles about the Employee Retirement Income Security Act (ERISA) and other issues relating to employee benefit topics

The Department of Health and Human Services (HHS) recently announced that it will delay online enrollment in the federal Small Business Health Options Program (SHOP) Exchange for one year, until the open enrollment period for 2015, which begins November 2014. Administration officials stated that the decision was necessary as they prioritized fixes to the individual health exchange. The delay will apply to the nearly three-dozen states that declined to establish a SHOP Exchange and are relying on the federally established Exchange.

With much of the focus on the federal healthcare law, the Patient Protection and Affordable Care Act, and other federal initiatives (or the lack thereof due to political constraints in Congress), it is often all too easy for employers operating in multiple states to overlook the need to familiarize themselves with the many state laws to which they are subject. Alternatively, multistate employers may very well know they need to keep their eye on state laws throughout the country – but quickly become overwhelmed by the sheer number of rules and regulations coming out of the states in which they operate. Understanding how those laws may interact with or alter the effect of federal law may be as equally complicated. Littler attorney Erin Reid-Eriksen was recently interviewed by XpertHR and noted the following current and pressing issues weighing upon multistate employers:

Senators John Thune (R-SD), Lamar Alexander (R-TN) and Orrin Hatch (R- UT) introduced a bill (S. 1724) yesterday that would prevent the administration from exempting multi-employer health plans from a $63 reinsurance fee the Affordable Care Act (ACA) will impose on each enrollee in self-funded and fully-insured health plans beginning in 2014 through 2016. Unions – whose members typically rely on multi-employer health insurance plans – have been vocal in their criticism of provisions of the ACA.

Executive Summary: On November 14, 2013, the Obama Administration announced a transitional policy, whereby insurers may, but are not required to, renew existing health plans in the individual and small-group markets in 2014, even if those plans do not meet the market reforms and plan design requirements of the Affordable Care Act.

In the wake of a political firestorm brewing around cancelations of individual health insurance policies, last week President Obama announced a rule change that would potentially allow some individuals to remain on their current health insurance policy for an additional year. The White House “fix” announced last Thursday would permit insurance companies to continue to offer such policies to individuals for another year, even though the policies do not meet the minimum standards required by the Affordable Care Act (ACA). The announcement came amidst sharp criticism of the President’s pledge that people would keep their existing coverage if they liked it and the day before the House voted on a broader measure.

We previously described and analyzed the U.S. Court of Appeals for the Tenth Circuit’s en banc decision in Hobby Lobby Stores, Inc. et al. v. Sebelius, No. 12-6294 (10th Cir. June 27, 2013), which held that for-profit religious employers possessed standing under the Religious Freedom and Restoration Act (RFRA) to challenge certain birth control mandates contained in the Patient Protection and Affordable Care Act (ACA). The mandates generally require employers to provide some methods of birth control—such as Plan B and intrauterine devices—that arguably prevent implantation of a fertilized egg. As we noted, the RFRA provides, as a general rule, that the federal government “shall not substantially burden a person’s exercise of religion.” Since the Hobby Lobby decision was issued, four federal appellate courts have also addressed whether the RFRA or the First Amendment’s Free Exercise Clause allows for-profit employers to challenge the birth control mandates contained in the ACA, and the U.S. Supreme Court looks likely to take up the issue soon.

In the recently released Notice 2013-71, the Internal Revenue Service (IRS) modified the rules for flexible spending accounts (FSAs). As previously applied, the rules did not allow for carryover of employee salary reduction contributions, otherwise known as the “use-or-lose” rule. The Notice permits cafeteria plans to be amended to allow for a carryover of up to $500 remaining at plan year end into the next plan year to pay or reimburse plan participants for qualified medical expenses, provided that certain requirements are met. The Notice also clarifies the scope of transition relief that allows for greater flexibility for individuals who desire changes in salary reduction elections for accident and health plans for non-cafeteria plan years beginning in 2013. These changes and clarifications were prompted by questions that arose under the Affordable Care Act (ACA).

The Departments of Labor, Treasury, and Health and Human Services have released final rules implementing the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which requires parity between mental health or substance use disorder benefits and medical/surgical benefits with respect to financial requirements and treatment limitations under group health plans and group and individual health insurance coverage.

Executive Summary: Earlier this year, the Obama Administration delayed implementation of the employer mandate, a major provision of the 2010 health care reform law (the Affordable Care Act or “ACA”). The delay of the employer mandate, however, did not impact other provisions of the ACA, many of which are going forward as scheduled. Additionally the reprieve may be short-lived because, unless additional guidance is issued, January 1, 2014, will start the clock on determining an employer’s size for purposes of the employer mandate, and for determining which employees will be considered full- and part-time for purposes of offering health care coverage.