The article below was published on June 18, 2017 by Employee Benefit News, written by Brian M. Kalish.


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Despite the uncertain future of the Affordable Care Act and pending replacement legislation, clients should continue finalizing their 2018 health and benefit offerings, contribution strategies, vendor terms, plan operations and employee communications, according to Mercer. The company hosted a recent webinar to share the top 10 issues for 2018.

“As employers begin to strategize for their 2018 benefit programs, it is important not to lose sight of new and ongoing compliance obligations and prepare to make any changes that may be necessary in employee benefit plan design and administration,” says Katharine Marshall, principal at Mercer. “Despite what may – or may not – come of ACA repeal and replace legislation, there are a number of compliance concerns that employers can count on sticking around – like HIPAA privacy and security requirements, mental health parity requirements and ERISA fiduciary duties, just to name a few.”

Employers and their advisers, Marshall adds, should keep these issues in focus because the consequences of sidelining them can be costly.

Employed shared responsibility strategy and reporting
Even with plans to dramatically alter or eliminate the Affordable Care Act pending in Congress, most of the legislative body’s reconciliation rules do not allow for the repeal of the employer shared responsibility, says Katharine Marshall, principal at Mercer.

While the minimum value requirement remains unchanged for 2018, affordability has decreased and an employer cannot charge a full time employee more than 9.56% of household income, down slightly from 9.69% in 2017.

It is critical for employers to document their offers of coverage and “most importantly,” waivers of that coverage, Marshall says. “As you head to 2018, correct any mistakes in prior year filings,” she adds.

Cadillac Tax
Employers should review their risk of exposure for when the tax is scheduled to begin in 2020. Although the American Health Care Act as it stands now delays the implementation of the tax until 2026, the fate of that bill is uncertain, Marshall says.

The best way to do that is to review an employer’s risk of exposure by identifying plans and benefits that could be a factor, such as flexible spending accounts, health reimbursement arrangements and health savings accounts, she says. An employer should also focus on pre-65 retiree plans and high-cost plans due to geographic location and claims history.

Preventive services
For employers to comply with this requirement they need to stay abreast of updates to what must be covered.

Changes are made on a rolling basis. For Jan. 1, 2018, preventive services now include screening for depression in adults, low dose aspirin for certain at-risk adults ages 50-59, syphilis screening for asymptomatic non-pregnant adults, among others, Marshall says.

Summary of benefits and coverage
These required templates that employers must complete for group health plans have a new template out for 2018, explains Cheryl Hughes, principal at Mercer.

The updated templates require new disclosures about coverage before meeting deductibles. Looking toward the future, no proposed legislation to date would impact the summary of benefits and coverage, Hughes says.

Wellness Programs
Final regulations that affected wellness programs were issued in 2016 from the EEOC under the Americans with Disabilities Act. “We now have a long list of rules that apply to the programs and it is a really good time…to go back and assess the rules that apply to [an employer’s] program,” Hughes says.

Mental health parity
These issues remain a “compliance challenge for employers,” says Kaye Pestaina, principal at Mercer. Since mental health parity was passed a year before the ACA, it has been largely overshadowed and still has many unanswered questions, she explains.

Although there are no new compliance deadlines for 2018, it will not be going away, she adds.

Parity is part of an employer’s overall behavioral health strategy about what should be covered and what vendors to use, Pestaina says. As a result, employers should undergo a review that is limited and make a decision what, if any, areas require a deeper dive.

HIPAA privacy/security compliance
Also “eclipsed” by the ACA, employers should be focusing on cybersecurity and privacy, Pestaina says, as “employee benefit plans are as much a target as other entities and employee benefit systems are vulnerable.”

An employer should consider how the plan and vendors use personally identifiable health information, such as cloud computing, wearables, transparency tools and data analytics, she adds.

Duty to monitor
As group health plans get more complex and as they increasingly turn to third parties, employers must monitor their plans, says Lesli Anderson, principal at Mercer.

“Consider including protective provision in plan documents such as anti-assignment and forum selection,” she says, “to limit how long [one is] exposed to lawsuits, who can sue and where you can be sued.”

Fiduciary rule
If an employer offers an ERISA plan that has an investment competent, they should monitor service provider compliance, Anderson says. What type?

Although this rule, which began June 9, has a “limited impact on health and welfare plans,” she adds.

ERISA disability claims procedure
These new procedures apply to claims made on or after Jan. 1, 2018 and are modeled after health plan claims procedures, but with no external review, Anderson says.

Employers should identify impacted ERISA plans providing disability benefits and consider the ERISA status of a short-term disability plan, Anderson explains.

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