Dan Bond Compliancedashboard, LLC & Challenges Audits Compliance Under ERISA and ACA

Roles and Responsibilities ACA and Compliance Highlights DOL Audit What We Will Cover

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Compliance Roles

Compliance Cost Plan Admin/Fiduciary Liability ERISA Title I Prepare/Distribute Notices Summary of Benefits and Coverage Summary Annual Report Women’s Health and Cancer Rights Act Notice Children’s Health Insurance Program Notice HIPAA Notice of Privacy Practices HIPAA Preex Condition Exclusion Notice HIPAA Special Enrollment Notice Medicare Part D Creditable Coverage Notice Notice of the Health Benefit Exchange Patient Protections Disclosure USERRA Rights Notice Reporting & Disclosure Prepare/Distribute Plan Documents Plan Summary Plan Description Summary of Material Modifications Cafeteria Plan Summary Annual Report Audit Plan Provisions Recordkeeping Requirements Mental Health Parity Act Subrogation Claim Procedures PHSA Mandates Prepare Disclosure Language & Materials Qualified Medical Child Support Orders Newborns’ and Mothers’ Health Protection Act HIPAA Nondiscrimination Grandfathered Plan Status Prepare Forms/Report to Government Form 5500 Creditable Coverage to CMS W-2 Reporting Forms 1095 and 1095 Affordable Care Act Employer Shared Responsibility Section 6055 and 6056 Reinsurance Program Payments PCORI Fees Exchange Notices Forms 1094/1095 Research and Education Working Families Tax Relief Act FMLA Continuation of Coverage On-Site Clinic ERISA Compliance ERISA Safe Harbor Delivery Methods Employee and Dependent Eligibility Requirements Nondiscrimination Rules (beyond HIPAA) Maintaining Grandfathered Plan Status Disclosure COBRA Administration and monitoring Participant tracking Eligibility compliance Send/document notices Bonding Requirements Every person who handles plan assets HIPAA Privacy & Security Implement/Review policies and procedures Risk assessment/breach notification procedures Implement/Review administrative, technical and physical safeguards Audit plan documentation Workforce training EDI Rules Compliance Cost

ERISA Fiduciary Act solely in participant’s best interest in providing plan benefits Act in accordance with plan docs and ERISA ERISA Plan Administrator Directly responsible for compliance with administrative functions Liable for non-compliance Employer Roles

TPA Contractual Liability Insurance Company State insurance law Claims decisions and payments Benefit mandates, such as PHSA Summary of Benefits and Coverage (SBC) Guaranteed issue/renewal Nondiscrimination Vendor Roles

Laws: ERISA, COBRA, HIPAA Range: $110 to $2,500 per day Liability: ERISA plan administrator Penalties

Excise Tax $100 Per Person Per Day Discovered on Audit: Min. $2,500-$15,000 Max: 10% health costs or $500,000 DOL Actions Civil Suit Audit Participant Civil Suit Under ERISA to Enforce PHSA Mandates ACA Penalties

ACA and Compliance Highlights The Latest

1094B/1095B March 31 to Employees May 31 (June 30) to IRS Cadillac Tax Delayed to 2020 Tax is deductible ACA Extensions

Shared Responsibility ALE status based on prior calendar yr Penalties for not covering dependents Penalties for ALEs with fewer then 100 employees Penalties if coverage not to all but 5% Standard rules for measurement and stability periods HRAs Dependents must be covered under plan ACA Transition Relief expires in 2016

1094/1095 Failure to file a return: $250 Maximum Limit: $3,000,000 Penalty doubles if also fail to provide employee statement Good Faith Effort For 2015 reporting, penalties may be reduced or eliminated ACA Penalties Increased

“Unlawful to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right or interfering with the attainment of any right to which such participant may become entitled under the plan.” Employer should have legitimate business reason in reclassifying employees causing loss of benefits Did employees previously have benefits? Does it disproportionately impact a protected class? ERISA 510

“Employer may not in any manner retaliate against an employee because he or she received a premium credit under the ACA.” Unclear whether possibility of receiving premium credit applies Requires only preponderance of evidence (51%) Remedies include “Special Damages” Administrative process first before federal court Employer must provide clear and convincing evidence it would have taken the same action Whistleblower Act

Wellness Compliance Challenges Is It a Health Plan? Does it provide medical care? Physicals, screenings, counseling, tobacco cessation Or, does it only provide other services? Educational programs, exercise programs, reimburse health club fees, written HRAs

Wellness Compliance Challenges Laws Impacting Plan Design HIPAA Privacy and Security HIPAA Nondiscrimination GINA COBRA ERISA Americans with Disabilities Act (ADA) Title VII of the Civil Rights Act Fair Labor Standards Act (FLSA) Internal Revenue Code

DOL Audit

DOL Audit Steps Initial Document Request Employer receives letter and possibly phone call DOL Employee Benefits Security/Administration (EBSA) Detailed list of documents needed May be general in nature or target a specific issue

DOL Audit Steps On-Site Review and Interviews Typically held at employer office May request additional documents to review Interview one or more individuals to gather information about the plan

Investigation of Fiduciary Issues Acting in best interest of plan participants in providing plan benefits Prohibited transactions Ensure plans are financially sound Focus on employee contributions Vendor negotiations and contracts DOL Audit Steps

Investigation of Specific Laws ERISA HIPAA Mental Health Parity Newborn’s and Mothers Health Protection Act Women’s Health and Cancer Rights Act COBRA Rules relating to Wellness Program GINA Affordable Care Act

DOL Audit Steps Documentation Plan Document Summary Plan Description (SPD) Written contracts for all services Enrollment materials and eligibility Distribution logs Document request procedures Special Enrollment procedures Claims records Financial records

DOL Audit Steps ACA Grandfathered Status PHSA Mandates Claims appeals and reviews Rescinding Coverage Summary of Benefits and Coverage (SBC) Notices and Disclosures

Findings of the Investigation If no violations: closing letter If violations: Voluntary Compliance Notice Letter Lists details of violation and corrective actions DOL Audit Steps

Correction and Settlement EBSA seeks voluntary compliance where possible Negotiate corrective action in detailed “Settlement Agreement” Requires evidence of correction Otherwise, may refer case to DOL attorneys for litigation

DOL Audit Steps Fiduciary Violations Mandatory 20% penalty on amounts received for a fiduciary breach Includes amounts received under a settlement agreement Generally assesses penalty in a separate letter

DOL Audit Steps Closing Letter Following Corrections EBSA will confirm corrective action has been completed and penalties paid EBSA sends Closing Letter indicating compliance has been achieved See EBSA Audit Manual on Landing Page

DOL Audit Considerations Consider performing a pre-audit and self-report any violations Hire attorney before audit begins if want attorney-client privilege for results Not correcting violations when discovered may be considered a “knowing” violation for purposes of criminal penalties and breach of fiduciary duty Generally advisable to limit to group that receives or review results

Questions

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