Erisa Is A Friend Of Mine

Eight years ago, the Supreme Court barely upheld the constitutionality of the Affordable Care Act’s individual mandate, justifying the mandate’s penalty as a tax. Fast forward to 2020, and the Supreme Court is again deciding the fate of the individual mandate and, with it, the ACA as a whole. What is it precisely the Court is being asked to decide, and how is it likely to rule? Ed and Scott jump in the wayback machine to revisit the ACA’s rocky past and “go back to the future” to discuss its perhaps not-so-uncertain fate. Will the Court’s current 6-3 conservative majority change the outcome of the 2012 decision? (Maybe … maybe not.) Why was Scott on Bourbon Street eight years ago when the Supreme Court handed down its earlier decision? What is “standing” and why is it so important? (Hint: In the legal world, it’s not the opposite of sitting.) What is “severability” and how might it keep the ACA alive? When can we expect the Court’s opinion?

Prescription drug costs, particularly for specialty drugs, pose a significant financial threat to employer group health plans. But what if those group plans could “clip” manufacturer coupons given to plan members to reduce the plan’s payment?  A new solution, drug coupon maximization programs, can generate enormous prescription drug savings for a plan, but they can also create some ERISA compliance issues. Scott and Ed are joined by Mark Holloway, JD, of Lockton Compliance Services, and Julayana Meyer, of Lockton Dunning’s pharmacy analytics team, to explore the evolving opportunities, mechanics and potential compliance issues of these programs. What are specialty medications? How much do they cost an employer group plan? (Hint: more than a cruise missile, according to Ed.) How do manufacturer-issued coupons for these high-cost medications work? What is a drug coupon maximization program? How can it help the employer save on its drug spend if the consumer is the one getting the discount? Can Scott calculate

It’s election day eve and healthcare remains a priority as America votes in 2020. We may not know exactly which horse will win the race, but thanks to Scott’s time on The Hill we have a pretty good idea of how health care policy could play out, no matter who comes out on top at the polls. Both parties promise healthcare reforms, but what might actually get delivered? Scott and Ed talk (generally – no calls or emails, please) about potential election outcomes and the healthcare policy proposals being discussed by the candidates. Is ERISA your friend, or a fiend? What is the outlook for healthcare policy if the Trump administration wins another term? What is Vice President Biden’s potential vision of healthcare policy? What do we know about Biden’s idea of a public option? What’s in the offing for drug pricing reform, wellness program regulations, and surprise billing legislation? And don’t miss the return of the lightning round! Scott shares his insider perspective on drug pricing reforms, reproposed wellnes

Surprise medical bills are a well-known problem within the U.S. healthcare system, but a few bad actors are playing an even more sinister trick on healthcare consumers and employer group plans.  Scott and Ed welcome Jennifer Hill, Senior Clinical Consultant from the Lockton Dunning team, to the podcast this week to discuss this new trick of the surprise medical billing trade. This one involves self-dealing by some providers and shockingly egregious billings intended to line their pockets at the expense of the patient and the patient’s employer group medical plan. Isn’t “surprise billing” Scott’s deal with his fancy friends in D.C.? How are some healthcare providers using affiliated, out-of-network entities to gouge the system? Can an in-network surgeon charge $7,000 for a procedure but bill $372,000 for their attending surgical nurse? (Apparently yes, if they are set up as an out-of-network entity.) Who comes up with these schemes and how do they come to fruition? What can a self-insured plan sponsor do when

More than 50 years after Title VII barred discrimination for a multitude of reasons, including sex, a new Supreme Court ruling has shed light on the scope of the prohibition on sex-based discrimination: Does it extend to a person's sexual orientation and even sexual identity? If so, how does the ruling affect employer-based health insurance? Scott and Ed welcome Paula Day, J.D., Lockton Benefits' new Director of HR Compliance Consulting, to discuss the court decision and the implications for the future of group insurance. Why did the anti-civil rights champion Rep. Howard Smith (D-VA) add the word "sex" as a protected class in his amendment to the Civil Rights Act of 1964? (Because he wanted to protect women, right?) Why did the EEOC initially view the ban on sex-based discrimination as an illegitimate ban, “conceived out of wedlock?” How much fun was “Ladies day in the House” in 1964? What exactly did the Supreme Court have to say about the three Title VII cases recently brought to them, addressing sexual o

What exactly is the “lost ark” of ERISA? Ed and Scott welcome Lockton’s very own tomb raider, Jay Kirshbaum, J.D., LLM, to find out. Together they decode a recent private letter ruling (PLR) from the IRS to discover a surprise lever that may allow employers to offer employees a nontaxable choice between employer contributions to a retirement plan or to a retiree HRA. Jay leads the boys through the labyrinth of tax rules like only someone with a master’s degree in tax law can and delivers up the holy grail of tax-favored benefits. Full of exciting twists and turns, this episode dives into: Is tax law interesting and provocative? (Hint: depends on who you ask) What exactly is a PLR? Does the recent PLR change the rules for offering employees a choice between HRA and retirement plan contributions? What is constructive receipt, and why do we care? How does the PLR promote the gloriously tax-advantaged vehicle that is an HRA? Why should employers care? What is an unfunded liability? Why does the term give Ed a fe

ERISA is a friend of mine is back! And better than ever. We kick off this season with the way-back-machine set to 2010 and the introduction of the “contraceptive mandate” in the Affordable Care Act, or ACA, or Obamacare if that’s your thing. Anyway, whatever you call that law, it guaranteed women cost-free access to all FDA-approved contraceptives through group health plan coverage … kind of. In the socially distanced Season 4 opener, Ed and Scott (both men) dive into treacherous waters to clarify the complex history – and potential future – of the ACA’s contraception mandate. Together again in (a modified) studio, the dynamic duo confer on the following: What does the ACA actually say about contraceptives? What is HRSA is and why does it matter? Who can opt-out of the contraception mandate? (Hint: It’s not just churches anymore) What’s the difference between a law and a regulation? And when does the Constitution come into play? How did the Trump Administration change the Obama Administration’s regulations o

It’s not often the government more or less invites employers to break the rules, and simultaneously grants amnesty for past violations, but that’s just what the IRS is doing in 2020 for cafeteria plan coverage changes. Well, sort of. In this special bonus episode, Ed and Scott explore how the IRS is changing the rules in ways it would never have done but for the pandemic. They also shed a few tears over something not so helpful to employers: a tolling of the clock for several key health plan deadlines that plan enrollees would otherwise have to meet. The result creates administrative hassles and adverse selection risks. What is an outbreak period? (Surely, it’s different from what Scott had since high school.) What deadlines are the feds suspending, and for how long? Is adverse selection something Ed’s wife experienced when she said “I do,” or is it a health plan financial risk to employers? Are the IRS’s new cafeteria plan accommodations required? Can an employer, if it decides to play along, limit the cafe

As employers begin reopening their worksite doors to their employees, some find ACA employer mandate challenges coming through the door as well. These issues are forcing employers to revisit and reevaluate, in ways they’ve never before encountered on this scale, how that mandate operates and what it requires.  In our fourth shelter in place episode, Ed and Scott discuss the ACA implications of returning to work. Find out how paid leave, furloughs, layoffs and more impact employees‘ eligibility for medical coverage, particularly where the employer’s medical plan hard wires eligibility to ACA full-time employee status. Oh – and they welcome the return of the lightning round … pew-pew-pew! Does the nature of the absence – paid or unpaid, furlough or lay off - impact eligibility status when employees return?  How quickly might coverage need to offered upon return, and under what circumstances? Why does ACA full-time status determinations make Scott hungry for salted cashews? How do paid and unpaid leaves impact

The Coronavirus Aid, Relief, and Economic Security, or CARES, Act was passed to give businesses big and small, along with their employees, a package of lifelines to get through our current unprecedented times. In this shelter-in-place episode, Ed and Scott analyze the potpourri of relief the CARES Act offers employers and their group health plan enrollees, including coverage mandates, tax credits and loans – each with its own terms and conditions. What healthcare plan mandates are included in the CARES Act? What plans do they apply to? When do the mandates expire? Can plans offset the cost of the mandates by increasing cost sharing on or eliminating other benefits? (Hint: The feds are not a fan of this thinking.) If an employer amends the plan based on the mandates, do they need to provide advance notice? How do all these tax credits and loans work? And how do they benefit the employer AND the employee? Which employers are eligible for the Paycheck Protection Program (PPP)? How much can a business get? Is th

In a time when we are all trying to figure out how to best care for ourselves and our families, how concerned should employers be with playing by the rules governing their benefits plans? When is it appropriate to take liberties? What are the risks? Will anyone care? This special shelter-in-place episode of ERISA is a friend of mine addresses the challenges plan sponsors are grappling with right now: What needs to be done – if anything – to continuing benefits coverage for furloughed employees? How does furlough status impact affordability under the ACA, and risk the ACA’s “nuclear penalty”? What are the notice and employee premium refund issues related to the suspension of a medical plan? How flexible can employers be in allowing employees to make benefit changes? Just how many buildings has Scott been removed from, in addition to the US Capitol building? What does the new stimulus bill include that will impact employers and their retirement and medical plans? When grappling with benefits plan rules, is it

In this special episode, Ed and Scott tone things down a bit but still bring their “A” game, and plenty of hand sanitizer, to take on a serious topic … the new coronavirus, or COVID-19.  Joined by experts Pam Popp, President of Lockton Retirement Services, and Stacie Engelmann, Senior HR Consultant, this episode tackles some of the key elements of employee benefits plans and HR policies that COVID-19 is sure to trigger questions about. Can employers limit a health plan’s coverage of coronavirus treatment? Should they? How does HIPAA effect how and what you can communicate about an employee that has contracted or been exposed to the virus? What are some of the factors actuaries are taking in to account to estimate potential cost? How can COVID-19 impact retirement plans? How far is this going to delay Ed’s retirement timeline? What would an HR policy around COVID-19, or a similar situation, contain? What can and should an employer do to prepare for an employee having, or being exposed to, the coronavirus? Wha

Depending on who you are the CORBA law could be as scary as an actual cobra (or Cobra Kai). If you’re not careful, COBRA can strike and be deadly. Okay, maybe not deadly but at the very least costly. In this episode, Edward “Venom” Fensholt and Scott “The Snake Charmer” Behrens, show you some mercy with the basics of COBRA and detail all of its nuances. [Insert continuing Karate Kid reference here.] Is every employer subject to COBRA? Are there any exemptions? Does COBRA only apply to medical plans? When and who gets an initial COBRA notice? What happens if it doesn’t go out? When does COBRA apply? (HINT: It’s AND not OR.) What exactly goes into a COBRA election notice? Who gets one? When is it sent? What can an employer do if they lose track of an employee (wait, what?) and leave them on active coverage? How long can COBRA coverage last? How much can an employer charge for COBRA coverage? What do you call a lightning round that moves more like a sloth?

There is a lot of talk about "Medicare for All," but what about Medicare as we know it today? You’re probably thinking, “How hard can it be?” Well, you’re about to not only find out just how challenging it can be, but also contemplate questions like, “How long do pay the Parts B and D late enrollment penalties if you’re immortal?” In this episode, Ed and Scott discuss the intricacies of the current state of Medicare eligibility and coverage, a topic soon to be near and dear to (old man) Ed’s heart. The guys are joined by Mark Holloway, J.D., also of Lockton’s Compliance Services division, who gives the low down on: What is Medicare and who qualifies? What are the four main parts of Medicare? What’s the difference between them all? (Who is up for Medicare lasagna?) Do I automatically get my Medicare card in the mail when I turn 65? Is Medicare free? (As if it were that simple.) Can you just pay people over 65 to leave your employer plan and tell them to get Medicare instead? (No, duh. Even Priya knows that on

Can employers provide one set of benefits to one group of employees and a different set to another? Short answer: in most cases, yes indeed. We have all sorts of laws preventing discrimination, but there are many ways employers can permissibly discriminate. Wait, what?  In this titanic episode, Ed and Scott jump into discrimination in the benefits world, and how employers can and cannot legally “discriminate” in their benefits offerings. How are regulations around self-insured healthcare benefits and fully insured healthcare benefits different? What does the IRS have to say about it? Who is considered a highly compensated individual and why are they suspect? (Hint: Scott’s not one, but he is suspect in other ways.) Can the same plan treat different groups of employees differently, and how would the plan be tested? Who bears the consequence of impermissible discrimination? Are there any easy ways to negate the problem? How do HRAs, FSAs, HSAs and cafeteria plans play into this? And what about dependent care?

We’ve come a long way from the days of itinerant purveyors of elixirs like “Dr. Good’s Cough Syrup and Hair Loss Tonic,” riddled with ingredients like mercury and opium. But how much more discerning are we today? In the first episode of the new decade (and new season), Ed and Scott discuss the latest medical miracle cure: stem cell therapy. The guys are joined by Dr. Shealynn Buck, Chief Medical Officer of Lockton Dunning Benefits, and Karen Amato, RN, Clinical Consultant in Lockton’s Northeast Series, and answer the key questions: What are stem cells and what do they do? Are they like the magic seeds Scott just sold to Ed? Who are stem cell purveyors marketing to, and what aren't they telling the buyer? Are stem cell treatments FDA approved? Can they be dangerous? How did stem cell treatments fare in the Mayo Clinic placebo test? Are stem cell treatments a cost-saving option for musculoskeletal conditions? What ERISA issues does medical plan coverage of stem cell therapies create?

The crew returns to the studio for a special holiday bonus episode! Ed and Scott breakdown the employee benefit implications of Congress’ year-end budget bill, what it includes and what’s missing, and what it all means for employers.  This special episode walks listeners quickly through the package – complete with a little bonus song, from us to America – while Priya wonders when that department transfer request is going to come through.

It’s the final countdown! In part two of the last episode of the season, the guys really take flight on determining whether an employee is considered full-time under the ACA employer mandate. They explore measurement periods, who should get a coverage offer for the next plan year, and how long employers have to offer it before IRS penalties kick in. How’s the new dog, Jimmy? (Don’t ask Ed’s wife.) How can employers determine which employees have ACA full-time status? Do paid vacation and leave count in calculating an employee’s hours of service? (Yes.) Can Ed pronounce “extrapolates” correctly? (No.) How is earning full-time employee status like earning frequent flyer miles? What are the different measurement periods, and when should employers use them? Can we wrap this up and head to happy hour already? Remain calm - helpful charts are available through your Lockton account service team. We’ll see you again for season three, beginning in January 2020.

If you wish the Affordable Care Act’s employer mandate would just fade away, you’re not alone. But the mandate appears as entrenched as ever, and employers still struggle to understand its many requirements. Listen as Ed and Scott get into the basics of the employer mandate and its potentially nuclear penalties in the first episode of a two-parter. Is Ed’s new dog Jimmy assimilating to life outside the “big house?” Isn’t the Texas v. US case just pitting America against America? But really, what might it mean for the ACA as a whole? Ahoy there! How do you know if you’re in the employer mandate boat? What’s required in the two “tiers” of the employer mandate? (Prepare for a lot of “tears.”) Is the best way to calculate employees’ household income, for affordability purposes, with a Ouija board? (Scott would prefer to just see his psychic.) What are the penalties for not fulfilling the employer mandate, and is doing nothing a legitimate strategy?

If you’re listening to this podcast you might be a medical plan fiduciary … and there are a few things you need to know. Medical plan fiduciaries face a small, but significant, risk of litigation related to their plan’s administration, and related to what the fiduciaries should be doing but often aren’t. In this episode, we clarify who is a fiduciary and why your medical plan might need some regularly scheduled maintenance! Ethan McWilliams, who used to carry a badge at the DOL, joins Ed and Scott to talk about the role of a fiduciary, why it’s important for them to do a little medical plan “preventive maintenance,” and how a new service from Lockton, the Lockton Fiduciary Shield, can help. Are we saying goodbye to the “Cat Man?” Where are the most common fiduciary danger zones? Whoa, whoa…you’re saying fiduciaries are supposed to KNOW SOMETHING about how their plan operates? (Ed is concerned.) Why are good notes so critical to the fiduciary decision-making process? As a fiduciary, would you find a medical p