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 coverage to make the corporate transaction painless for enrollees in the seller's FSA?

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 whether Part C is a better option than A, B and D, and when it makes sense to consider a Medigap plan. To contact our guest, Courtenay Brummer you can call her (913-981-3695) or reach out to her by email (cbrummer@choosemylo.com).

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? (Yes, you read that right.)  What do brokers and consultants have to disclose? What is the difference between direct and indirect compensation?  What's the plan sponsor supposed to do with all this information?  Where is Ed by the way? Is he okay? Seriously, if you've seen him, let us know.

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, Suzanne Bach, J.D.

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 provide the required NQTL analysis, and how do employers respond to each?

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 – on vaccination status? Is Ed and Scott's mountain climbing adventure a perfect metaphor for employers' vaccination efforts? Employers need a vaccination policy; what should it include? Why was Scott so full of bad ideas during this episode's lightning round?

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 the IRS guidance.

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 employees) be better off by embracing the glory that is ERISA?

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 want to know? What market reforms did BCBS agree to make as part of the settlement, and how might they benefit plan sponsors that buy group insurance from BCBS? For more information about the BCBS class action settlement, and to view the settlement agreement, FAQs and model claim forms, see www.bcbssettlement.com. For model employee communications about the settlement, ask your Lockton account service team.

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-owned benefits businesses to employers and give those firms a chance to compete for their business? How the name “Birwood Services Group” got its name? (Hint: It’s a journey from racial prejudice to a symbol of hope and change.) What does the Scorpions’ song “Winds of Change” have to do with the Birwood Wall? To learn more about Birwood Services Group, visit www.birwoodsg.com or contact Mr. Hurtt directly.

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 conflicting laws, can’t the EEOC just leave well enough alone? Why does Scott think that, just when it seems Congress can’t do less, it really can?

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 and a dog fare in Ed’s humble cabin?

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 living when the discussion turns to green ham and eggs? If employers have to front the COBRA subsidies, how do they recoup that cost?

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 did Scott confuse NADAC and NASA? Can states protect retail pharmacies, even if the result is to cost ERISA plans “billions and billions” of dollars?

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?

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 the savings in his head? (Spoiler alert: No.) Are these programs legal under ERISA? Does the coupon value have to be applied to the member’s out-of-pocket maximum? (Psssst … Scott had our backs on this one.) Does a drug manufacturer’s coupon amount to prescription coverage, or is it more akin to a drug discount card, and what does that matter for HSA-compatible plans? Do prescription drug coupon maximization program vendors guarantee the programs are copacetic?

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 wellness program regulations from the EEOC, surprise medical billing and protections for preexisting conditions.

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 it is asked to pay these illegitimate, astronomical charges? What has Lockton, specifically Jennifer herself, done to investigate these charges? (Unfortunately, the providers really didn’t just forget a decimal somewhere, as Jennifer initially thought.) Why does Scott cringe whenever it’s time for “Deep thoughts, from Ed?” If Congress is aware of this problem, why hasn’t it acted?

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 orientation and identity? Could Ed really become a Supreme Court nominee? How does all of this play into the group health plan context? 

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 fever? How can he get his hands on the Social Security trust fund? Where does COLI come into play? Is it even still legal? Has an employer that buys COLI “chosen wisely?”

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 on the contraception mandate? How will the upcoming election affect the future of the contraception mandate? Can Ed & Scott lead listeners to the ERISA promise land this season? (Of course!)

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 cafeteria plan changes it’s willing to allow? How does a flexible spending account grace period grow from 2.5 months to 12 months? 

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 current measurement period? How do they affect ACA full-time status, and eligibility, in 2021? Can employers impose a new waiting period for returning furloughed or laid off employees? When does re-imposing a waiting period for rehired employees trigger an ACA employer mandate nuclear penalty? And don’t miss answers to the CARES Act frequently asked questions in the lightning round!

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 there even any money left? How can a business have its PPP loan forgiven? What are Main Street loans? How are they different from PPP loans? Under the payroll tax deferral provisions of CARES, can an employer simply choose to not pay its payroll taxes and not worry about it? (No – you can still go to jail for not paying your taxes!) Why aren’t you guys funny anymore? Click here to access the fantastic guide to the PPP loan basics from Scott and the Lockton Government Relations team.

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 better now to ask for permission or ask for forgiveness?

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? What are they doing on Capitol Hill? (Scott spends a lot of time there you know.) Insurers are waiving deductibles for COVID-19 testing, but does that blow up HSA plans? If this episode isn’t legal, medical or investment advice, then what the heck is it? NOTE: After recording this episode, and shortly before its release, the U.S. House of Representatives passed legislation that would expand paid sick and family leave to employees of governmental entities, and private employers with fewer than 500 employees. The bill would also require health plans (including self-insured plans) to cover coronavirus testing at no cost. The Senate is working on passing the measure this week.

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 one.) Can an employee have dual coverage – both Medicare and an employer plan? If so, when does it makes sense? (Hint: Do not elect COBRA if you retire at 65 or later.) Can an employee on Medicare still make HSA contributions? Are there any penalties for not enrolling in Medicare when you’re first eligible? What the exceptions, and why are they traps for the unwary, like Ed?

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? HIPAA? GINA? Why does Scott keep talking about crab cakes?

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 plan “owner’s manual” helpful? What do Scott and Stranger Things have in common? (Hint: nothing and everything!)

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 is expected before Memorial Day. We’ll provide an update in the show notes on specific policy proposals as they come available.

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?