Viewing posts from: September 2016

EEOC’s New Guidance on Retaliation

Posted September 28, 2016 by Megan DiMartino

Symbol Scales is made of stones of various shapes

Each of the Equal Employment Opportunity (EEO) laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

The Merriam-Webster definition of retaliate: to do something bad to someone who has hurt you or treated you badly; to get revenge against someone. Well from that definition this sounds like a pretty serious issue…and it is.

Since 1998, retaliation claims have accounted for 24% of all Equal Employment Opportunity Commission (EEOC) claims, just behind race and sex claims. But as of 2015, these charges have risen to a whopping 45% of all EEOC claims, pushing it to the #1 claim spot.

The EEOC has provided detailed examples of what the basic retaliation claims entail. These are broad examples, but examples nonetheless.

Retaliation occurs when an employer takes a materially adverse action against an employee because the employee engaged in protected activity.

  • Materially adverse – these actions can include things that have nothing to do with the employee’s conditions of employment. The court defines this as an action that must materially affect the terms or conditions of employment, and the EEOC takes it one step further with “any action that might well deter a reasonable person from engaging in protected activity,” even if the employee’s action is unrelated to work.
  • Protected activity – should an individual participate in the EEOC process, the EEOC states that the participation is protected “regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct.” So basically, an employee could be lying about the discrimination charges and the employer could not terminate the employee based on these charges. But luckily, some courts have overruled such arguments stating that the filings are “utterly baseless” and don’t deserve protection.

EEOC Promising Practices
Small Business Fact Sheet

Source: Employee Benefit News | EEOC issues new retaliation guidance

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AssuredPartners Webinar | 2017’s Top Ten Health & Welfare Compliance Challenges

Posted September 26, 2016 by Megan DiMartino

AP Logo LargeJoin AP Benefit Advisors’ General Counsel and VP of Compliance, Patrick C. Haynes, Jr., on this webinar as he reviews the top challenges facing health and welfare compliance for the upcoming year. Discussion will include guidance on wellness programs, Marketplace Notices, as well as HSA and Form 5500 updates. Patrick’s main focus is to keep employers and their employees well informed, prepared and compliant with all regulations, changes and updates that are awaiting in 2017.

Top Ten Challenges include:

  • Wellness Programs – EEOC Final Regulations and IRS Tax Guidance
  • 2017 Updates and Changes Affecting Your Next Renewal – SBCs, Preventive and Clinical Trials and Affordability
  • HSA Update
  • HIPAA Privacy and Security
  • Federal Mandates for All Group Health Plans
  • Marketplace Notices and Appeals
  • Form 5500 – Major Changes, Updates and Expansion

Webinar Details:

  • Thursday, September 29, 2016
  • 2:00 – 3:00pm EDT
  • No Cost to Attend

Register Now - CA Blue

About the Presenter:

Patrick C. Haynes, Jr.
As counsel for AP Benefit Advisors’ Employee Benefits and Executive Compensation Group, Mr. Haynes advises employers and plan sponsors in a variety of health and welfare benefit plan compliance matters, including, but not limited to, tax qualification and other Internal Revenue Code issues, ERISA, COBRA and HIPAA portability and privacy issues. Mr. Haynes lectures frequently and has published many articles on health and welfare benefit plan compliance topics.

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Year End Compliance Requirements & Deadlines

Posted September 22, 2016 by Megan DiMartino

Months and dates shown on a calendar whilst turning the pages

Key benefit requirements and deadlines for 2016.


  • Summary Annual Report (SAR) – A narrative summary of your Form 5500, including a statement of the right to receive the annual report, must be distributed to plan participants by the last day of the ninth month following the end of the plan year, by September 30th for calendar year plans. Plans that have an extension of time to file the Form 5500 must provide the SAR within two months after the extension.
  • MLR Rebates – Deadline for issuers to pay medical loss ratio (MLR) rebates to plan sponsors is September 30th. If the rebate is a “plan asset” under ERISA, the rebate should, as a general rule, be used within three months of when it is received by the plan sponsor. Thus, employers who decide to distribute the rebate to participants should make the distributions within this three-month time limit.


  • Taxpayer Identification Numbers (i.e. Social Security Numbers) Solicitation – Applicable Large Employers (ALE) who did not provide the TIN/SSNs of employees on their 2015 ACA ALE reporting must conduct the first annual solicitation of employees on or before October 12th. If you do not receive a TIN/SSN after this solicitation, you must solicit the TIN/SSN again by December 31, 2017 to show reasonable cause.
  • Medicare Part D Notices – Employers whose health care plans include prescription drug benefits must notify Medicare-eligible employees by October 14th whether their plan provides “creditable coverage,” meaning that it is expected to cover, on average, as much as the standard Medicare Part D prescription drug plan.The Federal Centers for Medicare and Medicaid Services (CMS) requires that companies provide the notice before the annual Medicare Part D election period, October 15 to December 7 each year for coverage beginning January 1. The CMS Creditable Coverage website provides complete text of the guidance and Model Notices Plan sponsors should carefully review and customize these notices to ensure they accurately reflect their plan provisions.
    The disclosure notice must be given to all Part D-eligible individuals who are covered under, or apply for, an employer’s prescription drug benefits plan. This requirement applies to Medicare beneficiaries who are active employees and those who are retired, as well as Medicare beneficiaries who are covered as spouses under active or retiree coverage.
  • 5500 Extensions – Calendar year plans that filed an extension must submit their Form 5500 and related schedules by October 17th.


  • 2015 Transitional Reinsurance Fee Second Payment – Self-insured plans who elected to pay their 2015 fees in two installments must pay the second installment by November 15th.
  • 2016 Transitional Reinsurance Fees – Self-insured plans must submit their annual enrollment count to the Department of Health and Human Services (HHS) and schedule payment of their 2016 Transitional Reinsurance Fees by November 15th. HHS provides an Annual Enrollment and Contributions Submission Form Manual to assist with compliance.

Should you have any questions or concerns, please contact your Account Executive or Account Manager directly. Thank you

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Montgomery County, MD Paid Sick & Safe Leave

Posted September 15, 2016 by Megan DiMartino

Flu cold or allergy symptom. Closeup of sick young woman girl with fever sneezing in tissue. Health care. Studio shot. Black and white photo.

Going into effect on October 1, 2016, is Montgomery County, MD’s new Earned Sick and Safe Leave law which requires employers to provide paid leave to most of their employees that perform work in Montgomery County. There are exceptions such as employees who work eight or less hours per week and employees that don’t have a regular weekly schedule.

Employees are able to earn one hour of Sick and Safe Leave for every 30 hours worked in Montgomery County, but only able to earn up to 56 hours of leave per year. Employers with over five employees are required to pay for all earned leave, but employers with five or less employees are only required to pay for the first 32 hours earned and the remaining 24 hours may be unpaid.

Sick and Safe Leave uses for employees:

  • Care for their own family member’s mental or physical condition, illness or injury
  • Take preventive care for themselves or a family member
  • Various public health emergencies noted in the law
  • Reasons related to domestic violence, sexual assault, or stalking committed against themselves or a family member

For the employers:

  • They may not ask employees to provide documentation noting the reason for leave, unless the employee uses more than three consecutive days of leave.
  • They are required to provide notice to employees of the Sick and Safe Leave law as well as individualized notices to employees each pay period notifying them of their available leave amount.
  • They are required to maintain records of each employee’s accrual and use of leave for three years.

Fact Sheet

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

OMB Approves Final Version of New I-9 Form

Posted September 9, 2016 by Megan DiMartino

paperworkThe Office of Management and Budget (OMB) approved the final version of the new Form I-9 on August 25, 2016. They also issued a Notice of Action which allows for a 150-day period from the date of approval for employers to implement the new form into their processes. This puts the compliance date at January 22, 2017, which allows for the current form to be used up to that date.

It is important to utilize the new form and implement it into your current compliance process. The use of an incorrect version of Form I-9 could result in a costly fine which was recently doubled as of August 1.

Also, please be aware of the following changes to avoid violations and fines:

  • Validations on certain fields to ensure information is entered correctly
  • Drop-down lists and calendars
  • If no assistance is provided in Section 1, employee must indicate so on a new check box labeled, “I did not use a preparer or translator”
  • Enables the completion of multiple preparers and translators, each of whom must complete a separate preparer and/or translator section
  • Employees providing an Alien Registration Number/USCIS number in Section 1 must indicate whether the number provided is in fact an A-number or a USCIS number, even though these are currently the same
  • Adding a field to the top of Section 2, where the employer is expected to write the number corresponding with the citizenship/immigration status selected by the employee in Section 1
  • Embedded instructions for completing each field
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over
  • A dedicated area to enter additional information that employers are currently required to notate in the margins of the form
  • A quick-response matrix barcode, or QR code, generates once the form is printed and can be used to streamline audit processes
  • Requiring employees to provide only other last names used in Section 1, rather than all other names used
  • Removing the requirement that aliens authorized to work must provide both their Form I-94 number and foreign passport information in Section 1
  • Separating instructions from the form, in keeping with USCIS practice
  • Adding a Supplement in cases where more than one preparer or translator is used to complete Section 1

The new form has been approved, but has not yet been posted so employers should keep an eye out for its release.

Source: Insights Blog | Bulletin: I-9 Compliance – New I-9 Gains Approval from OMB

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

SHRM Pre-approved AP Benefit Advisors Webinar | Voluntary Benefits and the Affordable Care Act

Posted September 8, 2016 by Megan DiMartino

Two Women Working On A Computer TogetherJoin AP Benefit Advisors’ Director of Voluntary Benefits, Stephen Ivey, for a complimentary, 1-hour, SHRM* pre-approved webinar as he reviews the Affordable Care Act (ACA) and its influence on voluntary benefits. Discussion will comprise of changes in the market as a result of PPACA and the best practices for implementing voluntary plans in the post-ACA world.

Topics include:

  • Excepted benefits
  • Voluntary benefit contractual changes
  • Current state of the market
  • Benefit strategies
  • Communication strategies
  • Technology solutions

Webinar Details:

  • Wednesday, September 21, 2016
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

Register Now - CA Blue

SHRM SEAL-Preferred Provider Recert_CMYK_2016_1.25in (R)*AP Benefit Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HHS Releases 2018 Benefit Parameters

Posted September 2, 2016 by Megan DiMartino

DOL_IRS_HHSThe U.S. Department of Health and Human Services (HHS) has released proposed regulations that include 2018 benefit parameters and payment measures. These are scheduled to be published in the Federal Register on September 6, 2016.

While this grouping of proposed rules is mostly for insurance carriers, and includes risk adjustment and revised actuarial value methodology, employers and plan sponsors should review this proposed guidance and become familiar with it.

Here are some key takeaways:

  • 2018 – Increased Annual Cost-Sharing Limits. HHS proposed to increase 2017’s Out-of-Pocket Maximum (OOPMax) from $7,150/single and $14,300/family to $7,350/single and $14,700/family.
  • 2018 – Bronze-Level High-Deductible Health Plan (HDHP) Coverage. HHS proposed an Exchange standardized plan option that qualifies as an HSA-eligible HDHP.
  • HHS also revised some Small Business Health Options Program (SHOP) Enrollment rules. They are doing this to ensure that a newly qualified employee has a full thirty (30) days to enroll – these would not be new hires or during open enrollment, but for employees that become eligible mid-year.
  • Changes to Insurance Market Rules. Changes here include:
    • Small group market – new age-rating bands are proposed for children (2018) – on age band for 0-14, another for ages 15-20.
    • 2018 – Medical Loss Ratio (MLR) Changes – new policies could take advantage of a delay in reporting their MLR until they have a full twelve (12) months of experience. And, insurers could limit their total MLR rebates payable for a calendar year (in certain situations).

Federal Register Notice
CMS Fact Sheet

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Bumps, Fixes and Improvements Needed to Make Affordable Care Act Work

Posted September 1, 2016 by Megan DiMartino

PPACAWhile the President’s signature achievement, his healthcare reform effort “PPACA,” now known as both Obamacare and the Affordable Care Act, hasn’t been a big hit amongst health insurers and some politicians, others still cite it as a “triumph” – a triumph that brought coverage to 20 million people that lacked it previously.

As the last few months of President Obama’s term conclude, he has proposed some policy changes to fix the problems with his signature law.

On Monday, August 29, 2016, the Obama Administration released a 300-page policy brief to prove to its critics and champions that exchanges are still a desirable place to do business. These policy changes aim to better balance the risk pool, make it easier and more profitable for insurers to participate in the exchange, all while seeking to increase enrollment.

Kevin Counihan, the insurance marketplace CEO at CMS wrote that the proposed rule would rebalance the risk pool in several ways. These include:

  • Strengthen proof of eligibility for Special Enrollment Period enrollees.
  • Encourage consumers turning 65 to shift from ACA products to Medicare products, thus reducing the risk profile of a demographic with higher-than-average utilization rates.
  • Stoke the efforts of a recent task force dedicated to ousting healthcare providers who direct patients toward ACA plans instead of Medicare and Medicaid in order to receive greater reimbursements.
  • Create space for insurers to creatively design their insurance products, particularly for “benchmark” federally subsidized health plans.
  • Restructure the way Medical Loss Ratios (MLRs) are calculated.
  • Eliminate the current rule which bans insurers from entering exchange marketplaces for up to five (5) years if they exit a marketplace.
  • Determine, from stakeholders, if user fees should be allocated toward outreach efforts.
  • Use new technologies (that CMS is working to deploy) to create new channels for an integrated user experience (sounds like code for developing iPhone and Droid apps).

Although these changes may be pointed in the right direction, some critics argue that this may not be an adequate proposal. (See Mr. Counihan’s comments here)

Critics believe that HHS and CMS (the departments most likely to implement these changes) won’t be able to implement them in time for 2016 or even 2017. As carriers leave the marketplace, more areas are left with fewer plans to choose from, and their experiences, so far, haven’t been good ones. These Marketplaces need healthier and younger Americans to leave their parent’s plans and join the exchange. But, with 2016’s individual mandate penalty at 2.5% of income or $695 (whichever is greater) that has yet to be enough of an incentive to either enter the marketplace or leave their parent’s employer’s plan. These same critics (see links to articles below) do not believe that throwing more money at the problem or adjusting the timing of enrollment won’t cure the law’s fundamental problem of having enough healthy people enrolled to compensate for the sick people.

– Administration’s 300 page policy brief: Patient Protection and Affordable Care Act – HHS Notice of Benefit and Payment
– CMS-Blog, 8/29/16: Taking Action Now for a Stable Marketplace for the Long-Term
– NY Times, 8/29/16: Obamacare Marketplaces are in Trouble. What Can Be Done?
– CNN-Money, 8/29/16: Drawing more uninsured into Obamacare is critical to its survival
–, Hit & Run Blog, 8/29/16: Obamacare is Stuck in a Feedback Loop of Bad Policy and Bad Politics 

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

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