Health Reform – What do Employers do with MLR Rebates?

Posted by admin on August 3, 2012  |   No Comments »

Under health care reform, insurance carriers are required to satisfy certain medical loss ratio (“MLR”) thresholds, meaning that carriers will be required to spend 80 to 85 percent of premium dollars on medical care and health care quality improvement. If these thresholds are not satisfied, rebates are available to enrollees. The MLR provisions are not applicable to self-insured plans. The rules regarding these rebates are complicated and employers should review them carefully with ERISA counsel. Upon receipt of a rebate by a carrier, employers will need to determine the following:

• Who is entitled to receive a rebate;

• What form should the rebate take;

• What, if any, communication must be provided to employer and participants; and

• What are the tax impacts of the rebate on both the participants regarding the rebate.

Below you will find helpful information regarding any employer action that may be necessary.

Does a Carrier have to Provide a Rebate?

Carriers determine MLR on a state basis by market segment and do not disaggregate by type of plan within these markets; they will need to let employers know the amount. Carriers do not have to provide a rebate to an enrollee if the total rebate owed is less than $20 per subscriber ($5.00 when a carrier pays the rebate directly to each subscriber). This rule only applies to the carrier and not to employers refunding amounts to participants.

Carriers can issue rebates as either a:

• premium credit (a reduction in premium owed);

• lump-sum payment;

• lump-sum reimbursement to the account used to pay the  premium if an enrollee paid the premium using a credit card or direct debit; or

• “premium holiday” if this is allowed under state law.

Rebates must be paid by August 1st each year. If a carrier fails to timely pay any rebate, it must pay the enrollee interest at the current Federal Reserve Board lending rate or 10% annually, whichever is higher, on the total amount of the rebate, accruing from the date payment was due.

Are there Notice Requirements for the Rebates?

Carriers must provide notice to the policyholder and each current enrollee who was enrolled in the MLR reporting year at the time any rebate is provided. Employers are not required to notify employees of the rebate; however, employers may want to address the notices that are distributed by the carriers. If employers wish to do so, they can use the following language, filling in the blanks as appropriate:

Employees should have received a notice of rebate from [carrier]. In a nutshell, [Employer] received a rebate check in the amount of $_______. Amounts attributable to participant contributions will be used to [reduce premium amounts] for [currently enrolled employees] in accordance with legal requirements. These amounts will be reflected in the [August] paychecks.

What Should Employers do with the Rebates?

Employers must give some or all of the rebates to participants, unless they paid 100% for all tiers of coverage. In general, carriers will send rebate checks to employers and employers must mete out any amounts attributed to employee contributions to employees and handle the tax consequences. Rebates must be made to participants as soon as possible following receipt and, in all cases, within 3 months of receipt.

Guidance has been provided to aid employers, but no one formula has been provided for their use. The options to consider are  as follows:

• Reduce future premiums for current plan administrators (administratively easy with limited tax issues with respect to participants).

• Cash payments to current participants (administratively burdensome and results in tax consequences to participants).

• Cash payments to former participants (administratively burdensome and results in tax consequences to former participants).

Employers can also consider, with counsel, whether providing benefit enhancements or payment of reasonable plan expenses would be considered permissible.

The best method is probably for employers to reduce future premiums for current participants. If proceeds are to be paid to participants in cash, the DOL would likely require that payments go to those who participated in the plan at the time the proceeds were “generated,” which may include former employees. An option that may be easier to administer is to keep the proceeds in the plan and provide a “premium holiday” (suspension of required premiums) or a reduction in the amount of  employee-paid premiums.

ERISA plans

A plan that is subject to ERISA needs to assess whether rebate amounts are plan assets that can be used only for plan purposes. If the employer is the policyholder, determining the plan’s portion, if any, may depend on provisions in the plan or the policy or on the manner in which the plan sponsor and the plan participants have shared in the cost of the policy.

If rebates are attributable to participant contributions, they constitute plan assets and must be handled in accordance with the fiduciary responsibility provisions of ERISA. Generally, the plan fiduciary must distribute rebate amounts to participants, enhance benefits, or reduce future participant premiums. If the employer and participants each paid a fixed percentage of the cost, a percentage of the rebate equal to the percentage of the cost paid by participants would be attributable to participant contributions and considered to be plan assets. The regulations and guidance leave it up to the policyholder as to how to use the portion of a rebate that constitutes plan assets, subject to ERISA’s general standards of fiduciary conduct. An allocation does not necessarily have to mirror the premium activity of policy subscribers. Instead, a plan fiduciary may weigh the costs to the plan and the competing interests of participants or classes of participants when fashioning an allocation method, provided the method ultimately proves reasonable, fair and objective.

There is no requirement for ERISA plans that former participants be included or excluded in distribution of the rebates. However, a DOL Technical Release provides that if the fiduciary finds that the cost of passing through the rebate to former participants would exhaust most of those rebates, the proceeds can likely be allocated to current participants.

The guidance does not address how to handle an MLR rebate where the amount is inconsequential (e.g., one dollar per participant). However, taking a cue from DOL Field Assistance Bulletin 2006-01, a fiduciary may be able to conclude, after analyzing the relative costs, that no allocation is necessary when the administrative costs of making correction far exceed the amount of the allocation.

Where a plan provides benefits under multiple policies, the fiduciary is instructed to allocate or apply the plan’s portion of a rebate for the benefit of participants and beneficiaries who are covered by the policy to which the rebate relates, provided doing so would be prudent and solely in the interests of the plan according to the above analysis. However, according to the Department of Labor, “the use of a rebate generated by one plan to benefit the participants of another plan would be a breach of the duty of loyalty to a plan’s participants.”

Where it is determined that MLR rebates are ERISA plan assets, the ERISA “trust” requirement will not apply if the rebate is used to pay premiums or refunds within 3 months of their receipt by the employer.

Non-Federal Governmental Plans

For plans sponsored by state or municipal governments for their employees, the interim final regulations require that rebates be used to reduce premiums for health plan options for subscribers covered when the rebate is received, to reduce premiums  or current subscribers to the option receiving the rebate, or as a cash refund to current subscribers in the option receiving the  rebate. In each case, the regulations allow the rebate to be allocated evenly or in proportion to actual contributions to premiums. Note that the rebate is to be used to reduce premiums for (or pay refunds to) employees enrolled during the year in which the rebate is actually paid (rather than the MLR reporting year on which the rebate was calculated).

Church Plans

For employers with a plan that is not subject to ERISA , nor a governmental plan (e.g., a church plan), carriers must obtain written assurance from the policyholder that rebates will be used for the benefit of current subscribers or otherwise must pay the rebates directly to subscribers. The interim final regulations provide that if the rebate is paid to the policyholder, the policyholder must allocate the rebate to current participants only. If the rebate is paid directly to participants by the insurer,  the insurer must distribute the rebate equally among those who were participants during the MLR reporting year on which the rebate is based.

Federal Tax Implications to Employees and Employers

When employees pay their portion of the premiums for employer-sponsored health coverage on a pre-tax basis under a cafeteria plan, MLR rebates will be subject to federal income tax and wages. For rebates that are distributed as a reduction in premium (reducing an individual’s pre-tax premium payment during the year), there is a corresponding increase to the employee’s taxable salary that is also wages taxable for employment tax purposes. Rebates that are distributed as cash will result in an increase in taxable income that is also wages subject to employment taxes.

When employees pay their portion of the premiums on an after-tax basis, MLR rebates generally are not subject to federal income tax or employment taxes (assuming the individual does not claim a deduction on Form 1040 for insurance premiums). This applies when the rebate is provided as a reduction in premiums or as cash. For employers, generally amounts used for benefits (e.g., to pay premiums with respect to insured plans) should not be taxable, but employers should review the tax implications of a rebate with tax advisors.

Health Care Reform: What’s Next After the Supreme Court’s Decision?

Posted by admin on August 6, 2012  |   No Comments »

There has been much commotion over health reform since the Supreme Court’s decision – and rightly so.  After all, this was a landmark decision, with a surprising result.  What’s important to realize is that we are basically right back where we were before the decision.  Since the individual mandate was upheld, the bottom line is that we are back to business as usual.  Employers, with the help of their brokers, must continue to implement the changes required under the Affordable Care Act (ACA).  For those employers who chose a “wait and see” approach – no more waiting — it is time to focus on the upcoming health reform compliance mandates.  Even though we will likely see further challenges to the ACA (and already have seen some), and the ACA will clearly play a prominent role in the upcoming elections, it appears that health reform is here to stay for at least some time.

Much of the discussion revolving around the decision has focused on the individual mandate.  There was, however, an important provision that has been getting less attention:  the expansion of Medicaid, discussed below.

Medicaid Expansion

Medicaid is a partnership between the federal government and the states.  States are able to design their own programs within the boundaries set by federal regulations and the federal government ponies up a large share of the money.  The current Medicaid program requires states to cover only certain categories of needy individuals:  pregnant women, children, needy families, the blind, the elderly and the disabled.  Today, approximately 60 million people are enrolled in the program; expansion would add another 17 million.  The ACA’s Medicaid expansion provisions require states to expand their Medicaid programs by 2014 to cover all individuals under the age of 65 with incomes below 133% of the federal poverty level (roughly $31,000 for a family of four).  The ACA offered expansion of Medicaid on very generous terms – the law calls for the federal government to pick up all costs of the Medicaid expansion from 2014 through 2016.  Subsequently, the federal payment level gradually decreases, to a minimum of 90%.

The challenge to the ACA was that it unconstitutionally coerced states to expand Medicaid by threatening to withhold all federal Medicaid grants for non-compliance.  Instead of just refusing to grant new funds to states that did not comply with the new conditions, it would withhold those states’ existing Medicaid funds.  The counter argument was that the Medicaid expansion provisions were simply modifications of the existing program that offered financial inducements to comply with the new law.  The Supreme Court held that, while states could be required to comply with certain conditions in order to receive funds, they could not be penalized if they chose not to participate in the new program by taking away their existing Medicaid funding.  Simply put, the Court found that the ACA provisions were unconstitutional because the government cannot coerce states to expand Medicaid by threatening to withhold existing federal Medicaid funds.  Additionally, the Court further found that the unconstitutional provisions could be severed and remedied, leaving the rest of the statute intact.  The end result is that states may decide to opt out of the Medicaid expansion.

States that choose not to participate in the expansion will be faced with questions about how Medicaid programs will function and how it will affect the population that would have been Medicaid eligible through the expanded coverage.  Opting out of the expansion would save the states some money in the long run. Within hours of the Supreme Court’s decision, Republican officials in several states said they were likely to oppose expanding the program.

What does this mean for employers?

For employers with above 50 lives, this could mean additional penalties under the ACA.  If a state doesn’t expand Medicaid coverage, employers with over 50 lives may be subject to more plan affordability penalties than they would be were the state to expand.  Under the employer mandate, employers are subject to penalties if they fail to offer group health plan coverage or they offer coverage that fails to meet certain quality and affordability standards (generally if premium for single coverage exceeds 9.5% of employee’s household income or if the plan fails to provide at least a 60% “actuarial value” and the individual enrolls in the Exchange).  If Medicaid coverage is not expanded, individuals who would have been eligible for Medicaid under the expanded conditions will now likely find coverage under an Exchange and be eligible for federal subsidies.  This could increase an employer’s exposure to shared responsibility under the employer mandate.

Employers with less than 50 lives and not subject to the employer mandate will also be affected.  States that choose not to expand Medicaid will force more people to be dependent upon their employers or an Exchange for health insurance.  Coverage under the Exchange will be challenging to navigate at the onset, will vary state by state, and may or may not be a viable option for many employees, effectively forcing the employer to step in.  When employees cannot afford their insurance, it tends to leave employers in a sticky situation.

No matter what the size of an employer, allowing states to opt out of the Medicaid expansion provisions will likely result in more people (who typically were not insured in the past) seeking coverage on an Exchange.  This certainly does not bode well for the overall experience of the Exchange-based plans, ultimately affecting rates and affordability for employees.

Next Steps for Employers Post Decision

As a result of the Supreme Court’s decision, the majority of the ACA will remain in full force and effect.  As mentioned above, employers must continue to implement the ACA’s requirements.  Employers should also prepare for changes that will take effect in the near future.  As employers think about their next renewal, they need to consider the following challenges:

  • Meeting the new Summary of Benefits and Coverage and W-2 reporting requirements;
  • Assessing the impact of the reduced health FSA limits ($2,500) on their plan offerings;
  • Dealing with the continuing uncertainty of how the nondiscrimination rules for insured plans will apply once guidance is issued;
  • Understanding the options for dealing with potential rebates from insurers under the Medical Loss ratio rules; and
  • Deciding on the value of retaining grandfathered status and understanding the complexities of the rules surrounding that decision.

In the longer term, employers will need to consider the full rollout of reform in 2014 and its impact including:

  • What constitutes “essential benefits”, a key concept under Health Care Reform that affects some of the immediate reforms as well as the expansion of Medicaid and the possible offerings under the Exchanges;
  • How the Exchanges will operate and what the content and pricing of the benefit offerings under them will be;
  • How employers can assess the financial and administrative impact of the employer penalty provisions and possible opportunities for redesigning benefit offerings and personnel practices to mitigate the damage; and
  • How the so-called “Cadillac Tax” on high cost plans, beginning in 2018, will affect their programs.

As always, we will continue to update you and keep you informed as new guidance is released.

This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional.

New Limit for Health FSA Contributions in 2013

Posted by admin on August 9, 2012  |   No Comments »

Recent IRS guidance provides information on the new rules under Health Care Reform that limit the amount of salary reduction contributions to a health flexible spending arrangement (FSA) to $2,500 annually (adjusted for inflation) beginning in 2013.

The new guidance addresses a number of issues related to the limit on contributions, including:

  • The $2,500 limit applies on a plan year basis and is effective for plan years beginning after December 31, 2012;
  • Plans may adopt the required amendments to reflect the limit at any time through the end of calendar year 2014;
  • Relief is provided for certain salary reduction contributions exceeding the $2,500 limit that are due to a reasonable mistake and not willful neglect and that are corrected by the employer; and
  • Comments are requested on whether the current “use-or-lose” rules for health FSAs should be modified in light of the new limit.

Limit Applies to Health FSAs Only
The guidance makes clear that the $2,500 limit does not apply to contributions or amounts available for reimbursement under other types of FSAs, health savings accounts (HSAs), or health reimbursement arrangements (HRAs), or to salary reduction contributions to cafeteria plans used to pay an employee’s share of health coverage premiums.

Across the USA

Posted by admin on August 15, 2012  |   No Comments »

tates are sharply divided on how — or whether — to implement the Affordable Care Act after it was upheld by the U.S. Supreme Court. USA TODAY interviews with governors, top aides and health care officials show some states forging ahead on the law and others holding back (number in parenthesis is the estimated percentage of people in each state who have no health insurance).

Alabama (16%). “We do not know if the state can afford to expand Medicaid,” says Jennifer Ardis, press secretary for Gov. Robert Bentley, a Republican and a dermatologist. “We have serious concerns about the increased costs associated with expanding entitlement programs, but we need to understand the larger implications of the ruling as a whole to determine how many Alabamians might be subject to the Obamacare tax before deciding the best course of action.”

Alaska (18%). Gov. Sean Parnell, a Republican, “has directed the state departments of Law and Health and Social Services to review the (court) decision. It may be months before decisions are made on Medicaid expansion and a health care exchange,” says Sharon Leighow, Parnell’s press secretary.

Arizona (19%). “At this point, the governor has made no decision” on the insurance exchange and Medicaid expansion, says Ann Dockendorff, spokeswoman for Gov. Jan Brewer, a Republican. “We are actively planning to see what role an exchange would play in — and how the ruling will impact — Arizona’s health care system.” Brewer says, “It is now up to the American people to save our country from the fiscal and regulatory nightmare known as Obamacare. If Arizonans are to have access to the health care they need from the provider they choose, Obamacare must be fully repealed.”

Arkansas (19%). The state will rely on the federal government for an insurance exchange. The state will expand Medicaid services, says Gov. Mike Beebe, a Democrat. “If (working people) have the opportunity to have health care coverage, and if it’s going to be paid for by the federal government I don’t know how we leave our people out,” he says.

California (19%). The state is “about halfway” toward a Web-based enrollment system to meet the Jan. 1, 2014, deadline for health exchanges, says Diana Dooley, secretary of the state’s Health and Human Services Agency. California will expand Medicaid and is expecting a 10% enrollment increase, Dooley says. But California faces a $15.7billion budgetary shortfall in the 2012-13 fiscal year, according to state estimates. A more than $8billion tax hike is on the ballot for voters’ consideration in November to help close the gap. “If that initiative fails in November, we will have to evaluate what impact that will have on our ability to fully implement the (health care) reforms,” Dooley says.

Colorado (14%). The state created a health insurance exchange in 2011, says Lorez Meinhold, senior policy director for Gov. John Hickenlooper, a Democrat. People will be able to begin purchasing insurance in October 2013 for coverage beginning Jan. 1, 2014. “We are creating a Colorado-based system. But we do still need the federal dollars and will go after the federal dollars to build the Colorado exchange,” Meinhold says. The state is not waiting for the election and has already begun using Medicaid to cover some people without insurance.

Connecticut (11%). Under Gov. Dannel Malloy, a Democrat, Connecticut plans to fully implement the health care act and meet all deadlines. The state already authorized an insurance exchange and expects to runs its own, says Benjamin Barnes, Connecticut secretary of policy and management. The Medicaid expansion could save the state roughly $300 million a year because the state already voluntarily covers some low-income adults without insurance. The new law will let the state expand coverage of adults from the current 60% of the poverty level — for which the state pays 50% of the cost — to 133% of the poverty level while the federal government pays 100% of the costs for the first three years, Barnes says.

Delaware (12%). “We do not plan a standalone state exchange but have been working toward a federal partnership exchange,” says Gov. Jack Markell, a Democrat. “We are still reviewing our options on Medicaid expansion and anticipate further guidance” from the federal government.

District of Columbia (12%). The District plans to implement a health insurance exchange by Oct. 1, 2013, and has already expanded Medicaid. “We will continue to move forward with implementation of this landmark legislation for District residents,” says Wayne Turnage, director of the Department of Health Care Finance.

Florida (21%). “Florida will opt out of spending approximately $1.9 billion more taxpayer dollars required to implement a massive entitlement expansion of the Medicaid program,” says Gov. Rick Scott, a Republican. The state also won’t build insurance exchanges. “Florida already has health care safety net programs for those with the greatest need, including Florida KidCare to ensure no child goes without health care in Florida. But even though the federal government has promised to initially pay 100% of the increase in Medicaid payments for the first three years of Obamacare, the burden increasingly shifts to Florida taxpayers in future years. Medicaid, which has been growing for years 3 times as fast as Florida’s general revenue, will soon grow even faster under Obamacare, and education funding will be adversely impaired if we do not control the growth in Medicaid spending.”

Georgia (20%). “It’s far too early to say how we’re going to approach the Medicaid expansion,” says Gov. Nathan Deal, a Republican. “The court changed the rules of the game on expansion and we’ll need to see what the executive branch issues in regulations. We will wait until the election, which will determine our next steps. However, Obamacare is far too costly for the state with the estimated $4.5billion in new costs over the next 10 years. We have to look at the most cost effective ways to increase insurance coverage for Georgians. From the state perspective, it’s unaffordable.”

Hawaii (8%). “We are planning to fully implement our state-based exchange and the Medicaid expansion,” says Gov. Neil Abercrombie, a Democrat.

Idaho (17%). “Obamacare has been bad for America from the beginning,” says Gov. C.L. “Butch” Otter, a Republican. “Change is now in the hands of the American people and we must elect a new president and congressional candidates who will repeal Obamacare.”

Illinois (15%). The state will work with the federal government to set up an insurance exchange. The state supports expanding Medicaid. “We’ll move forward to deliver the benefits of the Affordable Care Act to millions of people in Illinois,” says Deputy Gov. Cristal Thomas, a Democrat.

Indiana (14%). “Absolutely no decision has been made to establish a state-based exchange,” says Gov. Mitch Daniels, a Republican. “Before a decision can be made, the state needs more information about how a federally based exchange will operate and be funded. A Medicaid expansion would put 1 in 4 Hoosiers (approximately 500,000 new enrollees) in Medicaid at a cost of approximately $2 billion over 10 years.” Daniels says a decision on whether to expand Medicaid will be made by the next governor and Legislature.

Iowa (12%). Gov. Terry Branstad, a Republican, joined the lawsuit against the law “because he calculated that it would cost $800 million for 150,000 new Iowans to join the Medicaid rolls, which is something neither Iowa nor the federal government can afford,” says Tim Albrecht, a spokesman. “His goal is to make Iowa the healthiest state in the nation through other methods.”

Kansas (13%). Gov. Sam Brownback, a Republican, says no decision on expanding Medicaid or creating an insurance exchange will be made until after the November election. “It’s a political question now,” he says.

Kentucky (15%). The state will operate its own insurance exchange but has not decided whether to expand Medicaid, says Kerri Richardson, communications director for Gov. Steve Beshear, a Democrat.

Louisiana (17%). “Come this November, we are going to elect a new president and a new Congress who will repeal and replace Obamacare,” Gov. Bobby Jindal, a Republican, says. “That’s why we have refused to implement the Obamacare health exchange or the Medicaid expansion.”

Maine (10%). Gov. Paul LePage, a Republican, says the court ruling “has verified what President Obama has refused to admit all along, which is to say this law is an enormous tax on the American people. The federal government can force you to do or buy anything, as long as they call it a ‘tax.’ This massive tax hike will only destroy the American economy as it forces us over the financial cliff. It is now up to the American people to demand full repeal of Obamacare. The Washington, D.C., elites cannot and should not run our lives.”

Maryland (13%). Under Gov. Martin O’Malley, a Democrat, the state has “passed legislation to create a health care exchange, setting up standards and regulations to run the program and creating the framework for a marketplace where individuals and small businesses can purchase coverage,” says Raquel Guillory, a spokeswoman for O’Malley. Maryland also supports expanding Medicaid.

Massachusetts (5%). Gov. Deval Patrick, a Democrat, expects Massachusetts to fully adopt the federal law and will have to make only small changes in its existing system of universal health coverage, which the federal law is modeled after. The health insurance exchange must reconcile some differences between the state and federal law by 2014, such as the amount of the penalty for not buying insurance and the income levels that trigger the penalties.

Michigan (13%). No state GOP leaders, including Gov. Rick Snyder, have committed to adding roughly 500,000 uninsured residents to the Medicaid rolls beginning Jan. 1, 2014, despite a federal pledge to pay the full tab the first two years and ultimately 90% of all costs after that. Even if the federal government ultimately pays 90% of the expanded Medicaid costs, Michigan’s share could run $200million annually, according to the Senate Fiscal Agency. Sara Wurfel, Snyder’s spokeswoman, says the administration wants to study the cost of expanding Medicaid coverage — in concert with lawmakers — to determine the “best course of action” for the state. State Senate Minority Leader Gretchen Whitmer, D-East Lansing, says she worries that the issue will become mired in a partisan slugfest, perhaps leading the state to miss out on critical federal dollars to help its neediest citizens.

Minnesota (9%). The state will keep planning to develop a health-coverage exchange and to expand Medicaid, says Lucinda Jesson, commissioner of the Minnesota Department of Human Services. Bills have been introduced to create a state exchange, but the GOP-controlled Legislature elected not to pass one. Gov. Mark Dayton, a Democrat, last year extended Medicaid to 84,000 adults earning less than $8,400 a year.

Mississippi (19%). The state is moving to establish a free-market health insurance exchange but will not expand Medicaid, says Gov. Phil Bryant, a Republican. “Even when the expansion is fully funded by the federal government, the state would still have to come up with an additional $110million in administrative costs to support the 400,000 potential new participants,” Bryant says. “I plan to work with conservatives across the county to elect Mitt Romney, so we can repeal and replace Obamacare.”

Missouri (14%). “We’re just now beginning to review this ruling so that we can understand exactly what it means for Missouri,” says Gov. Jay Nixon, a Democrat. “This ruling has significant complexities and implications for families, health care providers and insurers.”

Montana (17%). Gov. Brian Schweitzer, a Democrat, says: “We are reviewing the decision. Unlike the federal government, Montana can’t just print money. We have a budget surplus and we’re going to keep it that way. The federal law means Montana’s Medicaid population will double. Preliminary estimates indicate an additional 84,000 people will be eligible for Medicaid here by 2019 — at an estimated cost of more than $1.2 billion by the same year. With Montana’s share of the bill estimated at $71million, a new approach to controlling health care costs is needed. There are still a lot of unanswered questions.”

Nebraska (12%). Gov. Dave Heineman, a Republican, says: “My biggest concern is that an unfunded expansion of Medicaid means state aid to education for the Omaha, Lincoln, North Platte and Lexington Public Schools and many other Nebraska school districts will be cut. Cutting funding for the education of Nebraska’s children and increasing taxes on Nebraska’s families are not my priorities. Reviewing this decision in a detailed, thoughtful and responsible manner will take weeks and months before a complete determination can be made on what this ruling means for Nebraska.”

Nevada (21%). The state is setting up a health insurance exchange and using funds provided in the law to do so, says Jon Hager, executive director of the Silver State Health Insurance Exchange. Gov. Brian Sandoval, a Republican, “does not intend to automatically accept the Medicaid expansion. We will continue to examine (the ruling) to fully understand its implications,” says Mary-Sarah Kinner, Sandoval’s press secretary.

New Hampshire (10%). Gov. John Lynch, a Democrat, last month signed a law preventing the state from establishing an insurance exchange. That means the state’s exchange will be run by the federal government. Lynch says the law “will help provide access to affordable health care to many more of our citizens and help our small businesses with the high costs of health care. The court’s decision allows those important provisions to go forward.”

New Jersey (15%). Gov. Chris Christie, a Republican, says, “I still believe this is the wrong approach for the people of New Jersey, who should be able to make their own judgments about health care.” Christie is weighing whether letting the federal government set up the state health insurance exchange would be a less expensive option, he said on Fox News Channel’s Fox and Friends show. He also said he’s not sure the state needs to expand Medicaid under the law because the state’s program for the poor and disabled already is inclusive. He praised one part of the Supreme Court ruling that pulls back the federal government’s ability to force states to expand Medicaid to include people with incomes up to 133% of the poverty level.

New Mexico (21%). The state is developing its own insurance exchange, says Matt Kennicott, communications director for the New Mexico Human Services Department. “There are still a lot of questions that need to be answered and a lot of moving pieces on Medicaid expansion,” Kennicott says.

New York (15%). Gov. Andrew Cuomo, a Democrat, has ordered the establishment of a state-based health exchange aimed at the roughly 2.7 million New Yorkers lacking health insurance. The goal is to be ready to accept applications on Oct. 1, 2013. The state also will expand Medicaid. Regardless of the fall presidential election, Cuomo’s office says, “New York’s planning efforts are focused on implemented the federal law as it stands.”

North Carolina (18%). The Legislature did not set up a health care exchange before adjourning this year and Gov. Bev Perdue, a Democrat, is reviewing options, says Chris Mackey, Perdue’s deputy communications director. Perdue, who is not running for re-election this year, says it’s up to the Legislature to decide whether to expand Medicaid.

North Dakota (12%). The state is not moving to implement the law. “The health care plan is wrong for North Dakota,” says Gov. Jack Dalrymple, a Republican. “Our citizens want the freedom to make their own decisions about their health-care coverage. Instead of embracing government-run health care supported by a tax on the American people, we should be pursuing market-based reforms that make heath care more affordable, that encourage greater participation and provide Americans with more choices.”

Ohio (14%). Ohio probably will let the federal government create a health exchange for the state, says Lt. Gov. Mary Taylor, a Republican. She estimates the move would save Ohio $43million. She called a federal exchange rather than a state-run exchange “the lesser of two evils.” Ohio is reluctant to expand Medicaid but hasn’t ruled it out. John McCarty, state Medicaid director, says Ohio estimates that the health care law will add $369million to the state’s costs in 2014 even without expanding Medicaid, making the state reluctant to take on any other obligations, even if the federal government promises to pay most of the cost.

Oklahoma (18%). Gov. Mary Fallin, a Republican, plans to wait until after the November election to decide how to proceed, according to local news accounts. The Legislature has declined to establish health care exchanges. Fallin hasn’t decided whether to expand Medicaid coverage to more uninsured adults, mostly at federal expense.

Oregon (17%). The state is on pace to establish its health insurance exchange in 2013, says Tim Raphael, communications director for Gov. John Kitzhaber, a Democrat. The state isn’t waiting for the presidential election to take action. “The governor supports covering the uninsured and changing the way health care is delivered to improve health, provide better care and reduce cost,” Raphael says.

Pennsylvania (11%). Gov. Tom Corbett, a Republican, likely will push the state to set up its own exchange because it can do it better than the federal government, spokeswoman Kelli Roberts says. Corbett has not yet decided whether to expand Medicaid. Corbett said after the ruling that the law will “raise health care costs for our families, our employers and our state” but that he would comply and “do all we can to ensure the negative impact of this law affects the lives of Pennsylvanians as little as possible.” Corbett “hopes that in November we will have a change in leadership and repeal this law, but what we are focused on is making sure we are doing what is right” in complying with the law, Roberts says.

Rhode Island (12%). The state “has already done tremendous work to establish a (state-based) exchange and plan for Medicaid expansion, says the office of Gov. Lincoln Chafee, an independent. “Rhode Island is committed to implementing Medicaid expansion in order to close the coverage gap and reach nearly universal coverage for all Rhode Islanders.”

South Carolina (19%). Gov. Nikki Haley, a Republican, opposes health care exchanges and expanding Medicaid. “We’re not going to shove more South Carolinians into a broken system that further ties our hands when we know the best way to find South Carolina solutions for South Carolina health problems is through the flexibility that block grants provide,” says Rob Godfrey, the governor’s spokesman. The state plans to delay action until after the November elections.

South Dakota (13%). “We will not attempt to set up an exchange before the November election,” says Gov. Dennis Daugaard, a Republican. “I’m not very enthusiastic about expanding Medicaid. In South Dakota, people still believe in self-reliance, and I think able-bodied adults should be self-reliant. My hope is that, after the election, the next president and congress will repeal this law.”

Tennessee (15%). Gov. Bill Haslam, a Republican, “firmly believes Obamacare should be repealed because it increases the number of people covered by a broken health care system rather than addressing cost issues,” says Dave Smith, a spokesman. “The state has been doing preliminary planning for health care exchanges. The governor, in addition to advocating for repeal, believes it is the state’s responsibility to be prepared for multiple scenarios” and prefers a state-run exchange.

Texas (25%). Gov. Rick Perry, a Republican, opposes the insurance exchanges and Medicaid expansion, calling them “brazen intrusions into the sovereignty of our state. I stand proudly with the growing chorus of governors who reject the power grab.” Texas has an estimated 6.2 million uninsured residents and the highest rate of uninsured among the states. “Neither a ‘state’ exchange nor the expansion of Medicaid under the Orwellian-named Patient Protection and Affordable Care Act would result in better ‘patient protection’ or in more ‘affordable care,’” Perry says. “What they would do is make Texas a mere appendage of the federal government when it comes to health care.” Expanding Medicaid as the law envisions “would only exacerbate the failure of the current system and would threaten even Texas with financial ruin,” Perry says, adding that the law’s “unsound encroachments will find no foothold here.”

Utah (14%). Gov. Gary Herbert, a Republican, says the state may not expand Medicaid. He wants states more involved in setting health care policy. “We have 50 incubators of innovation and policy, who have experience with their own unique circumstances and challenges,” he says. “The federal one-size-fits-all mentality is short-sighted and simply bad policy.” He says the state will run a “consumer-oriented, market-driven exchange.”

Vermont (9%). Gov. Peter Shumlin, a Democrat, supports meeting the requirements of the law for Medicaid and the health benefit exchange. The state is setting up the exchange on its own, with the help of federal funds. Shumlin supports a government-financed health care system covering every Vermont resident.

Virginia (13%). The state challenged the law in court. But Gov. Bob McDonnell, a Republican, also has said the state would comply with the law and has made plans to set up its own health exchange. “If we have to choose between accepting another new federal bureaucratic monstrosity of a federal health-care exchange vs. a state exchange where we can determine what goes in there — if that’s the Hobson’s choice we are faced with — my inclination is we ought to have a state-based exchange,” McDonnell says. “But I think even a state-based exchange is a bad idea. It’s more bureaucracy.” McDonnell says he worries about the impact of Medicaid expansion on the state’s budget and will push to have the law repealed.

Washington (13%). “Our state has already moved to develop a health care exchange. Our governor also supports the Medicaid expansion,” says Karina Shagren, a spokeswoman for Gov. Chris Gregoire, a Democrat.

West Virginia (14%). “We’re going to review the Supreme Court’s ruling, and work with our federal delegation on how we move forward,” says Gov. Earl Ray Tomblin, a Democrat.

Wisconsin (9%). Gov. Scott Walker, a Republican who joined the lawsuit opposing the law, says “Wisconsin will not take any action to implement Obamacare. I am hopeful that political changes in Washington, D.C., later this year ultimately end the implementation of this law.”

Wyoming (16%). “There are numerous questions that the federal government will have to answer before we can fully understand the implications of the ruling and the state’s new options for the Medicaid expansion,” says Renny MacKay, a spokesman for Gov. Matthew Mead, a Republican.

List

Starting in 2014

The Patient Protection and Affordable Care Act may have been signed into law in March 2010, but its two major expansions of health coverage don’t begin until January 2014.

One is the creation of health care exchanges — government agencies or non-profit groups that will organize and oversee a private market for buying health insurance. The exchanges will offer a choice of certified health plans from which individuals and small businesses can choose.

States are expected to establish exchanges or create partnerships with the federal government. If states don’t act, a federal exchange is supposed to serve those residents.

In addition, the law calls for a vast expansion of Medicaid, the federal-state health insurance program for the poor and people with disabilities. For the first time in most states, adults earning up to 138% of the federal poverty rate, or $31,809 for a family of four, would be covered.

As passed and signed by President Obama, the law threatened states with the loss of all federal Medicaid funds if they did not expand their programs. The Supreme Court struck down that provision, freeing states to sidestep the expansion without losing other funds.

Contributing: John McAuliff, Jessica Tully, Dennis Cauchon, Judy Keen, Larry Copeland, Chuck Raasch, USA TODAY; Marty Roney, Montgomery (Ala.) Advertiser; Dennis Wagner, The Arizona Republic, Phoenix; Kevin Pieper, The (Mountain Home, Ark.) Baxter Bulletin; Keith Matheny, The (Palm Springs, Calif.) Desert Sun; Trevor Hughes, Fort Collins (Colo.) Coloradoan; Mike Chalmers, The (Wilmington, Del.) News Journal; Rick Neale, Florida Today, Melbourne, Fla.; Tim Evans, The Indianapolis Star; Jessie Halladay, The (Louisville) Courier-Journal; Alison Bath, The (Shreveport, La.) Times; Brian Shane, The (Salisbury, Md.) Daily Times; Kirsti Marohn, St. Cloud (Minn.) Times; Brian Eason, The (Jackson, Miss.) Clarion-Ledger; John Adams, Great Falls (Mont.) Tribune; Bill O’Driscoll, Reno Gazette-Journal; Alesha Williams Boyd, Asbury Park (N.J.) Press; Matthew Daneman, Rochester (N.Y.) Democrat and Chronicle; Jon Ostendorff, Asheville (N.C.) Citizen-Times; Tracy Loew, Statesman Journal, Salem, Ore.; Ron Barnett, The Greenville (S.C.) News; Jonathan Ellis, Argus Leader, Sioux Falls, S.D.; Bob Smietana, The (Nashville) Tennessean; Brian Passey, The (St. George, Utah) Spectrum; Adam Silverman and Nancy Remsen, The Burlington (Vt.) Free Press; Ben Jones, The (Appleton, Wis.) Post-Crescent.

DOL Publishes New Employees’ Guide To The FMLA

Posted by admin on August 22, 2012  |   No Comments »

Recently, the U.S. Department of Labor released a user-friendly Employees’ Guide to the Family and Medical Leave Act. The guide is targeted at employees, but may also serve as a helpful tool for employers looking for an efficient summary of the law.

The guide does not provide new information or legal interpretations of the law; rather, it provides a plain-language overview of the FMLA’s major provisions and contours, such as FMLA eligibility, FMLA rights and protections, the process for requesting leave (and associated notice provisions), FMLA certifications, and job reinstatement. In addition, the guide highlights certain unique circumstances and incorporates some of the DOL’s interpretive guidance on particular issues. For example, the guide discusses eligibility guidelines for airline flight attendants and flight crew employees, describes when employees may be eligible to take FMLA leave to care for certain children with whom the employee has no legal relationship (or to care for another as such a child), and emphasizes the importance of employer FMLA policies. Further, the guide provides clear flowcharts regarding FMLA eligibility and certification and the process for taking FMLA leave, as well as information for employees on filing an FMLA complaint with the DOL’s wage-and-hour division.

The DOL has also archived a webinar about the guide, which is available here:http://www.dol.gov/whd/fmla/employeeguide-webinar.htm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr Joel Nolan
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston
MA 02111
UNITED STATES
Tel: 6175426000
Fax: 6175422241
E-mail: AMFowler@Mintz.com
URL: www.mintz.com

DOL Free Webcast on Mental Health Parity Compliance Scheduled for TODAY!

Posted by admin on August 2, 2012  |   No Comments »

The Department of Labor (DOL), joined by the Department of the Treasury and the Department of Health and Human Services, scheduled a free webcast on Thursday, August 2 at 2:00 p.m. Eastern Time to provide practical information, tips and clarification on the Mental Health Parity and Addiction Equity Act. The webcast will give employers, third party administrators or insurers a chance to ask compliance assistance questions.

Preparing for Health Care Reform

Posted by admin on August 21, 2012  |   No Comments »

Join us for a special event:

Translating the Affordable Care Act into             plain English.

8am September 25th at the Sofitel.

Healthcare reform law has become fact. “Wait-and-see” time is over – but where do you go from here? Model Consulting invites you to join Peter Marathas, a nationally recognized expert on health care reform and its impact on employers, for an interactive presentation outlining what comes next. In this session we’ll discuss in no-nonsense terms the key information you need to know to get and stay compliant under the Affordable Care Act (ACA). You will walk away from this presentation with a clearer understanding of ACA’s requirements and the practical steps you will need to take to comply.
Mr. Marathas has provided guidance on Massachusetts’ Universal Health Care Law since its enactment in 2006. Much of the Affordable Care Act (ACA) follows the Massachusetts Law. Mr. Marathas will explain the coming requirements for ACA compliance, with an interesting twist: He’ll predict for you how the federal and state governments will implement the law based on his first-hand knowledge of how it has been done in Massachusetts.
DATE
Tuesday, September 25th
PLACE
Sofitel
120 S. 17th Street, Philadelphia
Complimentary Parking
RSVP
Neal Pollack
215 942 7164
npollack@modelconsultinginc.com
About Proskauer Rose
Founded in 1875, Proskauer Rose is a global law firm providing a wide variety of legal services. With over 660 lawyers spread across 13 domestic and international offices, Proskauer Rose was ranked 32nd in the AmLaw 100 for 2011.