Webinar: Are You in Compliance?

1. Webinar: Are You in Compliance? Welcome! Our webinar will begin promptly at 10 a.m. Eastern Daylight Time. In the meantime... If you are interested in a copy of today’s presentation, you can download a copy from the screen before we get started. To ask questions or offer comments use the Questions& Answers Pod on the screen.

2. Webinar: Are You in Compliance? Wednesday, June 20, 2012 Introduction by Bill Kaiser Area President Presentations by Amanda Bartoshesky Area Vice President, Regional Compliance Michael Eaton Vice President/Sales, ERISA Pros

3. PPACA: What Happens After the Supreme Court Rules? June 20, 2012

4. Agenda • Supreme Court on PPACA • Background • Possible outcomes • What would employers need to do? • Selected current compliance topics • ERISA Basics

5. Lawsuits and Issues Implicated • 26: lawsuits filed in U.S. District Courts • Six: Appellate Court decisions • Two: Cases accepted by U.S. Supreme Court

6. Which Lawsuits and Issues Are Implicated? • Whether the legal challenge to the individual mandate must wait until 2014; • Whether the individual mandate is constitutional; • Whether the Medicaid expansion constitutional; and • Whether any provision(s) (and which) found unconstitutional can be severed from the rest of the law.

7. Severability Any portion of the statute being deemed unenforceable does not affect the validity of the rest of the statute. Every provision in this Act and every application of the provisions In this Act are severable from each other as a matter of law. If any application of any provision in this Act to any person or group of persons or circumstances is found by a court to be invalid, the remainder of this Act and the application of the Act’s provisions to all other persons and circumstances may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this Act invalid in a large or substantial fraction of relevant cases, the remaining valid applications shall be severed and allowed to remain in force.** **Insulating State Legislation From Constitutional Challenge, Jonathan F. Mitchell (http://www.ncsl.org/documents/lsss/Insulating_Worksheets.pdf)

8. Possible Ruling #1: No Decision Until After 2014 • The Anti-Injunction Act (AIA) bars courts from striking down a tax law before the law takes effect • Hinges on whether Court determines that individual mandate violation consequence is tax or a penalty • Would mean deferring a ruling on constitutionality of individual mandate until 2015 when first payment would become due for those without health coverage. • Medicaid expansion is not subject to the AIA; would not be delayed under this kind of ruling.

9. Possible Ruling #1: No Decision Until After 2014 What employers need to do: • Continue complying with PPACA requirements already in effect (e.g. adult dependent children, W-2 reporting) • take steps to comply with additional requirements such as the requirement to provide a uniform Summary of Benefits and Coverage (SBC) as they become effective.

10. Possible Ruling #2: Individual Mandate & Medicaid Expansion are Constitutional • Medicaid expansion is not “coercive” and is constitutional • Individual mandate is constitutional • PPACA continues to be the law

11. Possible Ruling #2: Individual Mandate & Medicaid Expansion are Constitutional What employers need to do: • Keep complying with near and mid-term requirements • Watch carefully for new guidance on upcoming requirements • Prepare for 2014

12. Possible Ruling #3: Individual Mandate and/or Medicaid Expansion Unconstitutional but Severable • Individual mandate and/or Medicaid expansion is unconstitutional • Other provisions of the law can function independently of unconstitutional provision • Congress could have reasonably enacted the law without the unconstitutional provision. • Remaining portions of PPACA continue to be in effect. • Administration arguments • Only the guaranteed insurability and community rating requirements (applicable to insurance companies) are severable • All other remaining provisions of PPACA can stand alone.

13. Possible Ruling #3: Individual Mandate and/or Medicaid Expansion Unconstitutional but Severable What employers need to do: • Keep complying with near and mid-term requirements • Watch carefully for new guidance on upcoming requirements

14. Possible Ruling #4: Individual Mandate and/or Medicaid Expansion Unconstitutional and Not Severable • Unconstitutional provision(s) cannot be severed from the rest of PPACA. • Whole law is stricken

15. Possible Ruling #4: Individual Mandate and/or Medicaid Expansion Unconstitutional and Not Severable Greatest impact on employer group health plans • PPACA provisions already taken effect no longer required • Employers not required to continue efforts on near-term provisions (e.g. W-2 reporting; SBC) • Employers may be able to “undo” some of the provisions already in effect • Must amend plan • Carriers may keep some/all in place for insured plans

16. Possible Ruling #4: Individual Mandate and/or Medicaid Expansion Unconstitutional and Not Severable Considerations potentially limiting an employer’s options and the timing of reversion to pre-PPACA plans: • Delay in federal agency guidance • State law • Insurance company decisions/agreements • CBA amendment • Employee relations • Plan disclosure rules • Practical considerations

17. Example of Considerations in Possible Ruling #4: UnitedHealthcare Decision UHC, Aetna, Humana decision to keep: • Preventive with no cost sharing (including contraception, but would allow employers to opt out more easily than under PPACA) • Age 26 • Appeals • Lifetime limits • Rescission WellPoint • Second largest insurer behind UHC (runs Blues in 14 states) • Will announce its plans after the Supreme Court's ruling

18. Other Recent Compliance Issues: Same Sex Unions • 38 states prohibit same-sex marriage (including DE, IL) • Same sex marriage states: MA, CT, IA, VT, NH, NY, DC • Civil union states: DE, HI, IL, NJ, RI • November referenda • Maine • Maryland • Washington State

19. Other Recent Compliance Issues: New IRS COBRA Audit Guidelines What questions will auditors will ask? • How many QEs occurred over specified time period? • What COBRA elections were made by QBs over the time period? • What premiums are paid by QBs? • How QBs are notified of COBRA rights? • How plan administrator is notified when a QE occurs?

20. Other Recent Compliance Issues: New IRS COBRA Audit Guidelines What documentation will auditors require? • Plan document for the group health plan; • COBRA procedures manual; • Standard form letters sent to QBs; • Internal audit procedures for continuation coverage; • Details of any past/pending lawsuits for failing to appropriately provide COBRA.

21. Other Recent Compliance Issues: MHPAEA • MHPAEA requires group health plans that provide mental health benefits to provide benefits equivalent to medical/surgical • New DOL FAQs; watch site tools/resources updates • Clarifications on topics such as • Using a separate managed behavioral health organization for UR • Nonquantitative treatment limitations • Plans exempt from the MHPAEA requirements?

22. ERISA

23. ERISA Plans – Who are the Players? • Plan administrator • Named Fiduciary • Health plan • Plan sponsor • Participants and Beneficiaries • Insurance Companies • Third-Party Administrators

24. ERISA - Overview • Federal labor law establishing standards for employee benefit plans; includes • Fiduciary rules • Reporting and disclosure • Claims review • Preemption • Origins in pension world

25. ERISA - What is a Fiduciary? An ERISA fiduciary is an individual or an entity responsible for managing an employee benefit plan and its assets.  May be: • An internal administrative committee or human resources Department • An outside professional (third party service provider) • Plan sponsor (employer, union) still retain fiduciary liability

26. ERISA Fiduciary Rules: DO! Fiduciaries must: • Act solely in the interests of participants and beneficiaries • Make decisions with the exclusive purpose of providing plan benefits • Use the care, skill, and diligence that a prudent person in that situation would • Act in accordance with the plan document • Diversify the plan's investments to minimize the risk of large losses (mostly for pension)

27. ERISA Fiduciary Rules: DO NOT! Fiduciaries may not: • Use plan assets in his or her own interest (self-dealing) • Act on behalf of a party whose interests are adverse to those of the plan or its participants/beneficiaries (conflict of interest) • Get personal consideration from any party dealing with the plan in connection with a transaction involving plan assets (anti-kickback)

28. ERISA – Reporting and Disclosure • Reporting • Form 5500 and Summary Annual Report • Disclosure • Summary Plan Description • Summary of Material Modifications

29. ERISA – Plan Document • Most basic rule: plan benefits must be provided according to the terms of a written plan document • An ERISA plan can exist (sometimes inadvertently created) without a written document • plan would simply be out of compliance with the written document requirement) • Following plan document terms in eligibility and claims decisions is extremely important for fiduciary responsibilities and claims review

30. ERISA - Violations of Fiduciary Rules • No fixed dollar penalties • Lawsuits by participants or beneficiaries • Enforcement actions by the DOL or other government authorities • Criminal sanctions

31. ERISA COMPLIANT HEALTH & WELFARE PLAN DOCUMENTS Wrap-TightSMPlan Documents ● Summary Plan Descriptions (SPD) ● Form 5500s ● Summary of Material Modifications (SMM) ● Summary Annual Reports (SAR) 990 Hammond Drive, Suite 800, Atlanta, Ga., 30328 toll free: 866-488-6582, local 678-443-4003 www.erisapros.com

32. Who is ERISA Pros? ERISA Pros,LLC is an industry-leading professional services firm specializing in developing Welfare Benefit Plans for employers through partnerships with benefits brokers. We are a full solution firm offering two levels of consultative services and a web-based product called Wrap-Tightsm to create Wrap Plan Documents and Summary Plan Descriptions. Its founder, Bernard V. Kearse, is an ERISA attorney with over thirty years of experience and oversees the company’s day-to-day operations.

33. The Employee Retirement Income Security Act of 1974 A Political History What is ERISA? A Federal Law to protect individuals covered by welfare benefit plans. It requires employers of all sizes to provide participants with plan information including important plan features through written plan descriptions. It also establishes fiduciary responsibilities for those who manage the plan.

34. Who Governs ERISA? ERISA is governed by the U.S Department of Labor and enforced by the Employee Benefits Security Administration (EBSA). The EBSA is responsible for ensuring the integrity and compliance of the private employee benefit plan system in the United States.

35. What Documents are Required? • A Plan Document for Each Welfare Benefit: • Operating Conditions & Administration of the Plan • Legal Language of Benefits drafted by Lawyer • Client Makes Available for Participant or DOL Plan • An SPD – Summary Plan Description per Plan: • Main Document for Explaining Plan Rights • Language Supposed to be in Laymen's Terms • Formatted to be Easier to Read & Understand SPD SPD

36. Who is Required to Comply? • Almost every employer regardless of size is required to provide a written Plan Document and Summary Plan Description (SPD) for each plan • Plan & SPD • All employers with 100 plan participants for each plan are required to file Form 5500 and provide a Summary Annual Report or (SAR). • Form 5500 * Governmental and Church Plans are exempt from ERISA; however, they are subject to certain disclosure laws, including claims procedures under PPACA.

37. Lack of Awareness in the Market • Carrier Certificates not Complaint • A Very Complex Area of the Law • Limited Previous Enforcement Most Employers are Not In Compliance, Why? Compliance is “Not An Option” — It’s the Law!

38. Why is Compliance So Important Now? • Increased Enforcement by EBSA • EFAST2 – Form 5500 Reporting • Healthcare Reform Disclosures • New Penalties under PPACA • Heightened Participant Expectations The Government is making it easier than ever to File Complaints

39. Carrier Documents Do Not Comply! • Master Contract Defines Employer Relationship: • Grace Period and Due Date • Contestability Clause • Total Premiums to be Paid MASTER CONTRACT • Certificates Defines Employee Relationship: • Terms and Conditions of Coverage • Explains Co-Pays and Deductibles • Identifies Covered & Excluded Items CERTIFICATE OF INSURANCE Pertains to Insured Plans!

40. There are over 30 Possible Disclosures Required: • Employer Plan Sponsor’s TAX ID # • Plan Administrator’s Name & Address • Plan Number for 5500, e.g., 501, 502 • Agent for Service of Legal Process • Plan Eligibility, Effective Dates • Contribution / Funding of Plan • Insurance Company Refund (MLR) • Right to Amend Statement • Claims Procedures (PPACA) • Independent Contractors • Additional PPACA Notices

41. Important Disclosures Provided in ERISA Documents Insurance Company Refund: With respect to any insurance company refunds received by the Employer that are subject to the Medical Loss Ratio provisions of the Affordable Care Act, refunds/rebates must be returned to enrollees consistent with the provisions of the Affordable Care Act. The allocation of insurance refunds that are not participant contributions and are not "Plan assets," are to be used, allocated, distributed among one or more of the Employer(s) as the Controlling Employer in its sole discretion determines appropriate. … Refund Distribution Benefit: Maximizes Percentage of Refund for the Employer Right to Amend: The Controlling Employer reserves the right to amend the Plan and any Component Benefit Plan from time to time, including amendments that are retroactive in effect to the extent permitted by law. With respect to any Component Benefit Plan funded through a trust, an amendment may not change the duties and liabilities of the Trustee without the consent of the Trustee and, in all events, shall notify the Trustee of any amendment of the applicable Component Benefit Plan within a reasonable period of time. Add or Delete Benefits Benefit: Employer Controls Plan and Contributions

42. Important Disclosures Provided in ERISA Documents Claims Procedures: Review under the Affordable Care Act is required for any adverse benefit determination (including a final internal adverse benefit determination) by the Plan or issuer that involves medical judgment (including, but not limited to, those based on the Plan's or issuer's requirements for medical necessity, appropriateness, health care setting, level of care, or effectiveness of a covered benefit; or its determination that a treatment is experimental or investigational) as determined by the external reviewer and for any rescission of coverage (whether or not the rescission has any effect on any particular benefit at that time). Claims Procedures Benefit: Assures Language is Compliant with PPACA Employee: means an individual that the Employer classifies as a common-law employee and who is on the Employer's W-2 payroll, but does not include the following: (a) any leased employee (including but not limited to those individuals defined as leased employees in Code § 414(n)) or an individual classified by the Employer as a contract worker, independent contractor, temporary employee, or casual employee for the period during which such individual is so classified, whether or not any such individual is on the Employer's W-2 payroll or is determined by the IRS or others to be a common-law employee of the Employer; ...  Independent Contractors Benefit: Protection Against Claims of Independent Contractors

43. What Welfare Plans are Subject to ERISA? • Most Common: • Medical, HMO, PPO • Dental Care • Vision Plans • Prescription Drug • Health FSAs • Life Insurance • Disability Insurance • Other Plans: • Severance Pay • Employee Assistance • Business Travel • Wellness Programs • Pre-paid Legal • Retiree Medical • Voluntary Benefits

44. When are Benefits Subject to ERISA? • When an Employer Endorses a Plan by: • Selecting the Insurer, Negotiating Terms, Assisting with Claims • Linking Coverage to Employment or Recommending the Plan • When an Wellness Plan Includes: • Medical Care, Risk Assessment or Onsite Clinic • Biometric Screening, Smoking Cessation or Flu Shots • Benefits Fall Under Safe Harbor Provisions: • Funded through Insurance and are Completely Voluntary • No Employer Contribution or Endorsement

45. The DOL Allows Employers to Use a Wrap Document DENTAL DENTAL HEALTH DENTAL Around Wraps LIFE VISION LIFE • Establishes One Welfare Benefit Plan • Layers all ERISA Notices Around Certificates • Provides Health Care Reform Language • Discloses Eligibility Requirements • Allows One Form 5500 Filing Benefits:

46. What Should be Delivered to Participants? Around HEALTH DENTAL VISION LIFE The Wrap SPD with the Certificates of Coverage

47. How Do You Distribute ERISA Documents? • Create two Email Distribution Lists for: • Employees with Work-Related (“Computer Access Employees”) • All Other Participants (“Non-Computer Access Participants”) • Place a link on Employer’s Home Page: • Retain Proof of Posting Documents for period of Time • Requiring Username and Password is Recommended • Paper Distribution is Required if no Consent: • First or Second Class Mail with up-to-date Mailing List • By Hand through Method likely to Assure Receipt

48. Timeline for Notice and Filing of ERISA Documents Plan Year 3 4 7 9 Renewal • Time • Months • Wrap SPD • Updated SPD • Form 5500 • SAR • SMM Employers are Required to Provide a SPD within 90 days of Enrollment An SPD must be Furnished within 120 days the Plan is Established Must be Filed Electronically within 7 months of the Plan Year Distributed to Plan Participants within 9 months of the Plan Year 30 days upon Request, 60 days upon Reduction, 210 days at the End

49. The Legal Process – Compliant vs. Non-Compliant Non-Compliant: Tried in State Court Right to Jury Trial Punitive Damages De Novo Review Compliant: Tried in Federal Court Deferential Review Proof of Disclosure Documents Control • ERISA Documents Favor and Protect the Employer

50. ERISA Filing Acceptance System - EFAST 2 • New Mandatory Filing Requirement for Form 5500 • Automated Auditing Capability • Primary Enforcement Tool • Previous History Filing Reports Source-