Erisa Is A Friend Of Mine

Jay Kirschbaum, best-selling author of ERISA in the Raw (not a real book), joins Ed and Scott to educate them on the many kinds and complexities of direct contracting. From hospital contracting to utilizing centers of excellence and even onsite clinics, each type of direct contracting has its own benefits and drawbacks. How do the different types of direct contracting benefit the plan sponsor? What control does direct contracting give the plan sponsor versus the third-party provider? Does direct contracting really save any money? (Or in Ed’s mom’s case, chickens?) How does direct contracting differ from reference-based pricing? What are the implications of direct contracting on ERISA fiduciary requirements? How can an employer determine if direct contracting is right for them?

What could be wrong with employers wanting to offer their employees a wellness program to encourage them to be healthier, happier people? According to the US government, A LOT! Over 20 years, federal agencies and Congress have passed wellness laws and issued regulations that are less than consistent with each other, making a simple idea increasingly complex for employers. In this podcast, Scott gets the scoop on wellness program regulations from Ed and Rory Akers. What did federal regulators fail to learn from the moon landing 50 years ago? What can employers do and NOT do when it comes to wellness programs? Does getting sued mean you did something wrong? (Ed hopes not.) What are the differences between the wellness regulations under the ACA, HIPAA, EEOC, ADA, GINA? Is Scott really missing part of his brain? How do employers apply wellness incentives to affordability analyses under the ACA?

In simpler times, health reimbursement arrangements, or HRAs, were furry, fluffy, friendly creatures in the benefits forest. But now …  not so much. They’re multiplying like crazy, and growing fangs and claws. In this episode, Ed and Scott track the current species of HRAs, in all their varieties. How do the endlessly evolving types of HRAs differ from each other? What kind of HRAs can an employer offer, and to whom, without getting bitten? What do Tesla sedans have to do with HRAs? (Ed is slow on the take-up, and still not clear.) Can an employer offer young (tan) Scott a group plan and old (probably dying) Ed an HRA and a one-way ticket to Medicare? What advantages or “free passes” from complex ACA regulation do some of the new HRAs offer employers?

Prescription drug costs are a key concern for many plan sponsors, so much so that some are looking across the border to ease the financial burden. Ed and Scott welcome Lisa Carlson back to the podcast to discuss the legalities of bringing in drugs from another country...prescription drugs that is. Why would an employer consider offering imported prescription drugs? Are imported drugs really cheaper than what we have available in the US? Are imported drugs made in the jungle? How does one acquire these imported prescription drugs? (Ed’s eager to know.) Are there any clinical concerns with imported prescription drugs? Legal concerns? Is Lisa going to break Ed’s capitalist heart with this one? (Yes.)

After 10 episodes, Ed and Scott finally address the elephant in the room: ERISA … and why it should be your friend. We’ve discussed how it applies to everything from wilderness therapy to specialty drugs but what exactly is ERISA? Well, it’s an acronym for the Employee Retirement Income Security Act of 1974, but it applies to so much more than retirement plans. What employer-sponsored health and welfare benefits does ERISA apply to? When ERISA does apply, what does it require? (This question may or may not be a loaded one.) What on earth does ERISA have to do with Ed’s wife, bread or grilled cheese? What is the “crown jewel” of ERISA, and why should employers care? What does it take to reach your own moment of ERISA zen? What other laws are “parked in the ERISA garage?” Is Scott’s mom proud of him? And more.

In the first episode of season two, Ed and Scott welcome their retirement compliance counterpart, Sam Henson, J.D., to the podcast. Sam introduces the guys to “ERISA hell,” or the application of ERISA to 401(k) plans. This one is not for the faint of heart. What are the most common 401(k) plan mistakes? If you find a mistake, is the IRS really willing to “settle all family business?” How much can a 401(k) plan mistake cost you? Do 401(k) plan problems really go away if you “kiss the ring?” Is Ed obligated to pay Scotts 401(k) contributions if Scott “moves on?” What about those participants you want to pay out but can’t find? And more.

In our last episode of season one, Ed jumps into the conversation a bit prematurely but that doesn’t stop Scott from giving him the business about surprise medical bills. Much to Ed’s dismay, he learns that apparently, whether or not you know how much your medical bill is going to be, you are still supposed to pay it. Why do patient’s get surprise medical bills? How do you get a surprise medical bill from an in-network facility? Is Scott’s life really a dystopian hellscape? And could exposure to it trigger Ed’s heart attack? What is balance billing? And how is it currently being addressed? How is the government getting involved? (Scott knows; he’s fancy.) Are any states addressing balance billing? What about Congress? Is baseball arbitration as painful as it sounds?   NOTE: Congress and the White House have continued to push solutions to surprise medical billing in between our taping and the release of our podcast. The White House held a press conference on the topic on May 9, 2019, and proposed legislation

Drugs are expensive... especially the legal ones that keep many of us alive and in good health. With new specialty drugs in both the market and the pipeline, and mountains of cash changing hands as rebates between drug makers and pharmacy benefit managers (PBMs), an employer’s ability to understand – much less manage – its pharmacy spend is increasingly difficult. In the latest episode, Ed and Scott get the low-down from Sarah Martin on pharmacy analytics, the games played behind the PBM curtain, and what employers can do to keep their drug spend under control. Why are some drugs paid under the health plan’s medical rather than pharmacy component, and why does it matter? How can the site of a drug’s administration impact cost? Is Ed considered professional enough to “administer specialty drugs?” (No.) What is a rebate? How do they work? Who gets them? And how could new legislation change them?

As the universal healthcare rhetoric heats up on Capitol Hill, it’s time someone asks, “What does ‘Medicare for all’  actually mean?” Ed and Scott discuss how a single-payer system could impact the patient, employers, health plans and even the doctor. In this episode Ed’s “angry old man” persona makes an appearance as he and Scott run through the ups and downs of the various proposals and what it might do to health care quality and innovation in the US. And Ed might need a cardiologist after he hears what it could cost. This episode has us all wondering, is it time to finally just throw Ed off that cliff they talked about in episode one?

Is that the wilderness calling? In this episode, Ed talks wilderness therapy with Rory Kane Akers, J.D., former senior investigator for the DOL - Employee Benefits Security Administration. The two adventure deep into the backcountry of wilderness therapy and its potential impact on employer group health plans. What is wilderness therapy and who can it help? How much does it cost and do employers have pay for it? Why are there lawsuits over wilderness therapy coverage, and who is filing them? What’s MHPAEA and how does it/she/he relate to wilderness therapy? Is Sasquatch (the DOL) going to come after my business if we don’t cover it?

Employee benefit disclosure obligations were first developed when man battled dinosaurs for control of the Earth. Okay, not really, but they were first imposed when snail mail was the predominant form of employer-to-employee communication ... and the rules haven’t evolved much since then. In this episode, Ethan McWilliams, a former ERISA investigator for the DOL, joins Ed and Scott to dive into the requirements for employers to electronically distribute key benefit disclosures. Can disclosures be sent via email, posted on an intranet, transferred through Vulcan mind-melding? What determines if an employee has adequate access to the employer’s e-information system to permit e-disclosures? What constitutes an affirmative opt-in for employees without that access? Are employers responsible for knowing if the employee reads the disclosure? What’s the worst that happens if employers throw caution to the wind and make e-disclosures outside the rules?  

Four years into the ACA employer mandates and employers, along with their reporting vendors, continue to struggle with the complexity of the process. Even the simplest mistakes can cost the employer millions in fines. In this episode, Scott and “the Cat Man” give listeners the Kibbles n’ Bits on the ACA’s employer mandate, digging into: The basics of the reporting structure. What makes the annual reporting process so dang complicated. How to easily avoid very unsettling letters from the IRS (hint: double check one item on one form).

Ed and Scott welcome guest Lisa Carlson to answer the burning questions surrounding the impact marijuana legalization has on employer health plans. How do things change for employers in the states with legal medical or recreational marijuana? Can a group plan cover medical marijuana? Are employers still allowed to enforce a zero-tolerance drug testing policy? What exactly is a “goomy” bear? Do the rules change for self-insured plans? Are there any precedent-setting cases? And more.

Correction: Near the 13:50 mark we refer to a 6 percent excise tax for nonqualified distributions (withdrawals other than to reimburse qualifying medical expenses) from an HSA. The reference should have been to a 20 percent excise tax. The 6 percent tax applies to excess contributions to an HSA. ------------------- No, it's not déjà vu, the HSA fun continues! Part two picks up where we left off in the last episode. Ed and Scott help you "give the karate chop to the tax man" by covering:   Eligibility requirements. Contribution maximums and limitations. Employer responsibilities. Pulling money out. Prefunding and retrofunding. The Dec. 1 rule. And more.   The phenomenal white paper by Scott about HSA funding mistakes is available here. All the technical details about HSAs straight from the horse’s mouth (IRS) can be found in Publication 969.

In the first episode, Ed and Scott tackle HSAs, but the fun can't be contained in 20 minutes - this a two-parter. Part one gets into the details about:  What is an HSA? Who can have one? What’s this high-deductible health plan business? What determines eligibility? What exactly is disqualifying coverage? And more.

Introducing ERISA is a friend of mine, a biweekly podcast series from the compliance services professionals of Lockton Benefit Group. We invite you to join us every couple of weeks to learn a little something about employee benefits, and share a few laughs along the way.