The number of Americans getting some type of disability check from the federal government is soaring. Since 2003, there’s been a 29% jump in Americans with little or no work experience getting disability payments, according to the Social Security Administration.
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While it may seem boring to those who don’t deal with benefit plans on a daily basis, the Supreme Court’s recent decision in US Airways, Inc. v. McCutchen is somewhat important. The issues litigated in that case were whether two equitable defenses applied in the context of a health plan’s claim for reimbursement under ERISA Section 502(a)(3). With it, comes some further insight into defining plan terms and available remedies. This can be important for plan undergoing changes for PPACA compliance.
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The Departments of Labor, Treasury and Health and Human Services issued proposed regulations that implement the 90-day waiting period  limitation under the Affordable Care Act. This guidance mostly follows the earlier guidance issued on the 90-day waiting period and also includes changes to existing HIPAA portability regulations. Highlights from the proposed regulations are discussed below.
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A new poster reflecting changes to the federal Family and Medical Leave Act (FMLA) related to military family leave is now available and must be posted no later than March 8th. Employers with 50 or more employees are generally required to display the FMLA poster where both employees and applicants can see it.

Military Family Leave Provisions
The FMLA includes two special military family leave entitlements for eligible employees:

• Military caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness to take up to 26 workweeks of FMLA leave during a single 12-month period to care for the servicemember.
• Under the qualifying exigency leave provisions, an eligible employee whose spouse, son, daughter, or parent is a military member on covered active duty is allowed to take up to 12 workweeks of leave to address certain special issues (called “qualifying exigencies”) arising out of the military member’s active duty or call to active duty in support of a contingency operation. Qualifying exigencies include activities such as attending military sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare.

Final Rules Implement Changes to FMLA
The new FMLA poster accompanies final rules which implement previous amendments to the military family leave provisions. Highlights of the final rules include:

• Expansion of the definition of a covered servicemember to include certain veterans. The final rules expand the 26-workweek military caregiver leave provision to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty.
• Inclusion of pre-existing injuries or illnesses aggravated in the line of duty on active duty. The final rules expand military caregiver leave to cover current servicemembers with serious injuries or illnesses that existed before the servicemember’s active duty but were aggravated by service in the line of duty.
• Expansion of qualifying exigency leave for employees with family members in the Regular Armed Forces. The final rules expand the qualifying exigency leave entitlement to employees whose spouse, son, daughter, or parent serves in the Regular Armed Forces, and incorporates the statutory requirement that the military member, whether in the Regular Armed Forces or the Reserve components, must be deployed to a foreign country.
• Certain changes to the categories of qualifying exigency leave, including a new qualifying exigency category that allows an eligible employee to take FMLA leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s deployment or impending deployment.

The final rules also implement amendments clarifying the application of the FMLA to airline flight crew employees.

Additional information regarding these changes, including a military leave guide, fact sheets, and FAQs, is available from the U.S. Department of Labor.

Last month, Health and Human Services (HHS) released a proposed rule that delays part of the Small Employer Health Option Program (SHOP). Note that this delay does not change the effective date of the ACA’s employer “Play or Pay” mandate.

HHS’s proposed rule delays until 2015 the ability of a small employer that participates in a federally-funded SHOP exchange to choose multiple health plans to offer its employees.  Until 2015, federally-funded SHOP exchanges will assist small employers in choosing a single qualified health plan to offer their employees.  For purposes of the exchanges a “small employer” is an employer that employs 100 or fewer employees on average during the prior calendar year.  States may reduce the 100 employee limit to 50 employees until 2016.

State-operated SHOP exchanges may, but are not required to, apply the same restriction and limit small employers to choosing one qualified health plan to purchase from a state exchange in 2014.  This proposed rule is intended to provide the government additional time to prepare for an employee choice model and to increase the stability of the small group market.  Under the ACA, states are required to establish health insurance exchanges by 2014.  If a state declines to establish an exchange, the ACA requires the federal government to establish a federally-operated exchange in each of those states.

As of April 1, 2013, 26 states have indicated that they will not establish a state exchange and will therefore default to the federal exchange.  For small employers in states with federal exchanges, they will be limited to choosing one qualified health plan in 2014, should they decide to participate in a SHOP exchange.

Additionally, you should be aware of the upcoming Partners Only Call for all who have signed up for Enhacned Compliance Services

Partners Only Conference Call

Part of our Enhanced Compliance Services, Proskauer Rose conducts a monthly conference call for Partners Only – and for only those Partners who have signed up for our Enhanced Compliance Services.

Date: Apr. 29, 2013

Time: 3:00 PM EDT

Topic: ACA General Update and Q&A

Click Here to Register

Department of Health and Human Services (HHS) Secretary Kathleen Sebelius today announced a final rule that will make purchasing health coverage easier for consumers. The policies outlined today will give consumers a consistent way to compare and enroll in health coverage in the individual and small group markets, while giving states and insurers more flexibility and freedom to implement the Affordable Care Act.
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Gov. Christie on Friday formally declared New Jersey will not operate its own health insurance exchange and will rely instead on the federal government to serve uninsured residents, small businesses, and others eligible for coverage under the signature piece of the Affordable Care Act.
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