Erisa Is A Friend Of Mine

In the larger scheme of corporate mergers and acquisitions, benefits issues are just nuisance issues ... until they're not. Buyers in stock and asset purchases are often stunned to learn that they may own COBRA liability related to the seller's former employees (and their dependents). And they might be required to open the doors of their group health plans to unwanted guests – the metaphorical Cousin Eddie – for up to 36 months. In this, the final substantive episode of the final season of ERISA is a Friend of Mine, Ed and Scott unravel the beguiling mysteries of COBRA (and health FSA) coverage in the M&A. The episode explores: Why and how does the stock vs. asset nature of a sale affect COBRA liabilities? If the parties to a corporate transaction contractually assign COBRA responsibility, what happens if the obligee drops the COBRA ball? How is sorting the COBRA obligations in an M&A like Scott trying to get all his kids out the door in the morning? How can buyers and sellers deal with health FSA co

When a home’s circuitry goes bust, sometimes you have to rip into the walls to reveal the source of the problem. So too, with medical insurance. With the cost of medical care, and thus medical insurance, trending relentlessly higher, Congress decided it was time to bust into the walls to figure out why. Enter a new obligation on group plan sponsor: medical plan cost reporting. In this episode of ERISA is a Friend of Mine, Scott and Ed take a look at this new reporting obligation and the dazzling array of data the feds want plan sponsors to disclose, starting as early as this December. Tune in to learn: What does this new obligation require of employers? Who will employers need to lean on in order to make their disclosures? Why do Ed and Scott feel adrift on the sea of mediocrity? When is the first report due … and when must subsequent filings be made?

In the ERISA world, the collision of COBRA with Medicare is about as brutally taxing mentally as an ultramarathon is physically. Lucky for Ed and Scott, Courtenay Brummer from Lockton’s Mylo division joins the show to help us understand some of the convoluted nuances we encounter when COBRA and Medicare collide. In this episode, the trio work through: When does Medicare enrollment allow a plan to terminate COBRA? Why doesn’t Medicare enrollment, for an individual already buying COBRA coverage, operate as a second COBRA qualifying event? Where an employee enrolls in Medicare before employment termination or reduction in hours, why might their dependents be entitled to more than 18 months of COBRA? If Ed and Scott were really big-time ERISA lawyers, would they really need to draw a picture to explain all this? Why do individuals who wait until COBRA is exhausted before leaping to Medicare risk a lifetime late enrollment penalty? Mylo can help sort out not only Medicare enrollment timing issues, but also wheth

If ERISA compliance were as easy as baking a cake, the establishment of a plan document would be an essential step in the recipe before it goes in the oven. Plan documents are critical to permit proper administration of the plan and, thusly, keep employers out of trouble. In this episode, Ed and Scott welcome back their colleague, and former Department of Labor national office attorney, Suzanne Bach, and address: What is a plan document and why is it important? Can a plan “document” be comprised of multiple documents? Can a plan document double as a summary plan description? When it comes to asking stupid questions, should Ed or Scott really be the judge? What’s the difference between a healthcare plan, a cafeteria plan, and a wrap plan?

Lifestyle spending accounts, or LSAs, might be the new darling of employee benefit offerings, but this recent innovation is not without risk. Specifically, these employer-funded notional accounts, that can pay for everything from yoga classes to emergency car repairs, shouldn’t get too cozy with ERISA. In this episode, Ed and Scott welcome the newest member of the Lockton Compliance Services team, Ruhe Wadud, to explain the ins and outs of LSAs and why ERISA is no friend of these new spending accounts. Why didn’t Scott invite Ed to episode 5, and just who is Robin Leach? What are LSAs, and what are they typically used for? Why “let the buyer beware” is the savvy employer’s watch phrase when listening to LSA vendor pitches. How LSAs pose ERISA risks, and how to avoid them.

At the end of last year, Congress passed a piece of legislation that addressed, among other things, new broker and consultant disclosure requirements that affect all contracts entered into or renewed Dec. 27, 2021 or after. While some disclosures already happen, the new obligations are focused on getting more detailed information in the hands of plan sponsors and fiduciaries.  In the latest episode, Ed leaves his beloved podcast baby in the safe (safe?) and loving (loving?) hands of Scott and his honorary cohost Rory Kane Akers. Together, Scott and Rory take transparency to a whole new level as they tackle broker and consultant compensation disclosures.  What plans are covered by these new requirements?  Who counts as a “consultant” now expected to disclose this compensation information? (HINT: It’s not as clear cut as the broker distinction.)  How do plan sponsors get this information? Do they have to request it? When should they expect the information to be delivered?  How are the DOL and Santa similar? (Y

One of the most vexing aspects of benefit plan sponsorship and administration is hanging on to old records like enrollment forms, claim denials, plan documents, SPDs, ACA filings, etc. So when it comes to record retention, how long is long enough? Ed and Scott welcome to the show their colleague, attorney Suzanne Bach, formerly of the Labor Department’s national office, to explain the rules, and best practices, around plan-related document retention. Join them as they explain: Why the answer to “What if I can’t find it?” in response to federal enforcement agents’ request for plan records is going to be “You lose.” How does the record retention period differ depending on the law requiring the document and depending on how the request is couched? Why isn’t “quadruplely” a word? Or is it? (It is in Ed’s world!) Why does a clear record retention policy actually help – not handcuff – plan sponsors? As a companion piece to this episode, check out the nifty record retention grid prepared by the show’s guest, Suzan

Poison – the rock band, not the substance – reminded us that every rose has its thorns, and that's certainly true when it comes to telemedicine. Telemed brings primary care and so much more, like substance use treatment and even physical therapy, into the virtual age. It offers unprecedented convenience to patients, lower overhead for providers and safety during a pandemic. But it's not all a bed of roses. In this episode, Scott and Ed discuss telemedicine's clinical and convenience advantages but warn about the compliance thorns that come with it. They discuss: Why is offering a telemed portal only to enrollees in the major medical plan a best practice? Why is it ok to go against the above mentioned best practice during the COVID-19 public health emergency? Why do some vendors mislead employers into thinking pairing telemed with a high deductible health plan is no big deal? How to reconcile telemed with HSA eligibility, what's the telemed/HDHP/HSA "free pass," and how long does it last?

Federal regulators seem to have little hesitancy in asking employer group health plan sponsors to do the near impossible. The near-impossible dream du jour requires employers to certify that their plans comply with mental health parity non-quantitative limitations, or NQTLs. In this episode, Scott and Ed welcome colleague and friend of the show Rory Kane Akers, former DOL mental health parity auditor. Rory breaks down what employers are required to do, why it’s nearly impossible for them to do it alone, and best practices for leaning on carriers and third-party administrators (TPAs) to help. The trio tees up: What exactly are non-quantitative treatment limits, and why do the parity rules care? Why is Scott so fond of mental health care but not so much the parity rules? Why does it matter, when arming itself to satisfy the non-quantitative assessment requirement, whether the employer’s plan is insured or self-funded? What are the two (or three) possible responses from carriers or TPAs when asked to help provi

With the COVID-19 delta variant on the rampage, the federal government and many private employers are ramping up vaccination campaigns. Statistics show the unvaccinated are 11 times more likely than the vaccinated to die from the virus. The feds are poised to mandate vaccinations outright for employees of many private employers. But in the meantime, a growing number of employers are using medical-plan related wellness programs to incentivize employees to get vaccinated. In this first episode of Season 6, Ed and Scott outline the boxes an employer must check to promote vaccinations through a wellness program. Paula Day, Director of Lockton’s HR Compliance Consulting, drops by to school the guys on the similar boxes an employer must check when incentivizing vaccines outside of a wellness program. In this episode, the trio address: Which employers are subject to the Biden administration’s new vaccination mandate? Why employers cannot condition medical plan eligibility – or coverage of treatment of the virus – o

Hey everybody, the IRS is a little late to ARPA COBRA subsidy party, but it brought tacos! In this season-ending episode of ERISA is a friend of mine, Ed and Scott take us page-by-page through the IRS’s 41 pages of 86 FAQs on how the ARPA COBRA subsidy works. Well, not really … they break it down a little more briefly than that. Join us for this episode where the boys explain: Who is eligible for ARPA subsidies, and who is not? Can Ed make the podcast’s “lightning rounds” slower than they already are? Why is Ed giving the IRS props for offering guidance to the ARPA scheme, even though we’re already nearly three months into the six-month ARPA subsidy window? What are the three pieces of good news the IRS offered up about the ARPA “second bite at the COBRA apple”? What should Scott learn – and quickly – about severance agreements? When and how does the employer claim tax credits for fronting ARPA COBRA subsidies? For more on the ARPA COBRA subsidies, see our recent alert and webcast (password: Lockton.1) on

More and more employers are turning to “voluntary benefits” to supplement their traditional group offerings, but what does the term voluntary benefits really mean? Aren’t all benefits “voluntary”? Join host Scott Behrens and his trusty sidekick (at least for this episode) Ed Fensholt as they explain why some benefits are more “voluntary” than others, what’s required for some voluntary benefits to avoid ERISA, and whether what employers don’t do in order to avoid ERISA status might do their employees (and themselves) more harm than good. This episode tackles: How many times did Ed try to kill Scott in one week? What does the term “voluntary benefits” really mean? Is ERISA’s safe harbor for voluntary benefits a refuge because a benefit is employee-pay-all, or paid with after-tax dollars? The ERISA safe harbor is lost due to employer “endorsement,” but what constitutes an endorsement? Hint: it doesn’t take much. Who would win the Pay-per-view showdown between the DOL, IRS and HHS? Would employers (and their emp

There's a near $3 billion pot o' gold up for grabs for employers (and their employees) who purchased Blue Cross Blue Shield (BCBS) insurance policies or used BCBS to administer claims under self-funded plans between 2008 and 2020. But before you begin making retirement plans, understand that nobody – except maybe the class action lawyers – is going to get rich on the backs of the settlement. The expected claimants number in the tens of thousands and any group plan's share of the settlement pie is divvied up between the employer and employees under one of a pair of formulas described in the settlement agreement. Ed and Scott welcome "BCBS point man" Mark Holloway to explain:   How does the BCBS association work, and where did this pot of money come from? Who can make a claim for a piece of the pie (and why is Scott frozen out)? In making a claim, should employers use the "default" or "alternative" method (hint: How much work do you want to do?) Why did Ed disappear to the Colorado mountains…and why might 007

Almost 75 years ago, Jackie Robinson became one of major league baseball’s greatest players, but only because he was given a chance to play. In the substantially nondiverse world of employee benefits insurance and brokerage, minority-owned businesses simply want an opportunity to play. In this compelling episode of ERISA is a friend of mine, Ed and Scott welcome Ken Hurtt, CEO of Birwood Services Group, a minority-owned broker founded in 2020 by Mr. Hurtt in a partnership with Lockton. Listen as Mr. Hurtt explains how Birwood, with Lockton’s support, plans to create a flow of opportunity for minority-owned businesses in the insurance industry. This episode explores: How can Birwood help employers meet their diversity, equity and inclusion goals? Ways that Birwood, with Lockton’s financial support, is working to foster insurance-related career opportunities for more people of color. What is the Birwood supply chain? How does it look beyond Birwood’s business objectives to introduce other quality, minority-own

With all the new benefits compliance challenges employers face this year, Ed and Scott take something of a breather to revisit an old friend. Corporate wellness programs are now fully entrenched in corporate America, still operating under the venerable HIPAA and Affordable Care Act rules that employers came to grips with long ago. But the party-crashing EEOC continues to snipe around the rules, and after all these years, still can’t get its wellness program act together. In the latest episode of ERISA is a friend of mine, the boys describe the on again-off again, on again-off again EEOC approach to wellness programs, and address important questions like: How is the EEOC like those annoying people who constantly inject themselves into a conversation but are always wrong? Should employers bring their wellness programs to a halt waiting on the EEOC? (Spoiler alert: Uh, no.) Why is the passive voice not discernable by Scott? Or should we ask, why can’t Scott discern the passive voice? If Congress doesn’t pass co

When it rains it pours…and whoa, is it raining this year! Not since…well, ever…have benefits plan sponsors seen a year like 2021, not just in terms of the decisions they need to make and things they must do now, but also in terms of what they must be thinking about, planning for and negotiating now, for next year. Join Ed and Scott from the eye of the storm as they catalog the deluge of major compliance obligations pummeling plan sponsors this year and lurking just around the corner for next, and answer the key questions: Should Ed see a doctor about his caffeine intake? What must sponsors do this year about cafeteria plan accommodations, outbreak period guidance, COBRA subsidies and more? If Scott is elbows-deep in the sausage making in D.C., does that make him “Mr. Sausage”? What’s on the agenda for 2022 that sponsors need to be thinking about right now? (Hint: It’s a ) If Ed loses his house to Scott, and Scott loses his to Ed, will Ed be happy away from the mountains? How will Scott, his wife, four kids a

The recent American Rescue Plan (ARP) resurrected an old nemesis for employers: Employer-fronted, taxpayer-reimbursed COBRA subsidies. These subsidies, available from April through September of this year, are available to individuals who lost employer-based coverage due to a reduction in work hours or involuntary employment terminations. But the class of subsidy-eligible individuals is not limited to those currently on COBRA; individuals who could be on COBRA for such a qualifying event, had they elected COBRA when it was offered, are also eligible. How in the world, according to ARP, does that work? Join Ed and Scott on their intrepid journey to lead ERISA is a friend of mine listeners into the bog that is the ARP COBRA subsidies, and attempt to answer some burning questions. How are the ARP subsidies like a Nordic tragedy? To which healthcare plans do the subsidies apply? What portion of the COBRA premium do the subsidies pay, and how long do the subsidies last? In what sort of crazy, mixed-up world are we

Employer group health plan sponsors are already choking on skyrocketing prescription drug costs, and now states are adding insult to injury. But wait, doesn’t ERISA’s thick shield of preemption deflect state laws that directly or even indirectly affect ERISA plans? What happens when states boldly go to bat for retail pharmacies … and the resulting laws throw gasoline on group plans’ already burning prescription drug spend? Ed and Scott welcome Sarah Martin back to the show to discuss a recent Supreme Court ruling and scary legislation pending in other states. If Sarah Martin is the show’s favorite prescription drug consultant, does the show have a favorite contraband drug expert? (Hint: Her name might be Lisa.) What is ERISA’s “deflector shield,” how does it work, and what state laws blast through it like a photon mega-torpedo? How do group plans’ pharmacy benefit managers reimburse retail pharmacies, and why are states looking to crash that party? What are NADAC and AWP, and how in the name of outer space d

Whoa, Nellie! What was THAT that just happened in Georgia? The Democrats — not to their surprise but to the surprise of some others — have captured the two U.S. Senate seats for Georgia in special run-off elections, and that changes everything in Washington, at least for the next two years. But does everything include federal healthcare policy? Ed and Scott sit down the afternoon following the election, while the Capitol building is under siege, and ponder: How exactly do the Democrats control the Senate when they and the GOP both have 50 seats? President-elect Biden’s campaign platform included major healthcare policy items … where do they fall now, in his policy batting order? Why doesn’t majority control of the Senate give the Democrats carte blanche on major health reform initiatives? Should Scott be sweating out potential tax reform as an uber-high wage earner? Is Medicare for All in the potential cards, or not so much? Scott goes ”on the record” with his answer! Take it to the bank, EIAFOM peeps!

More and more employers are looking to provide health insurance to contractors, franchisees, agents, and employees of other inadequately related employers under a single umbrella. They continue to bump into a near 50-year-old barrier – multiple employer welfare arrangement (MEWA) rules. Through many a night these rules have left Ed sobbing, but a federal trial court in Texas might have just blown a gaping hole in the MEWA barrier. Why is Priya “that without which there is nothing?” (You think these guys could do it alone?) What is a MEWA and where are we likely to find them in the real world? Who really cares about MEWAs, and why? Who regulates them? Do self-insured and fully insured MEWAs pose different problems? So how exactly can groups get around the MEWA rules? And why are we talking about Judge Reed O’Connor again? Is his recent federal trial court decision precedent? Could there be an appeal?