1 the erisa industry committee washington update: september 10, 2012

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  • *The ERISA Industry CommitteeWashington Update:September 10, 2012

  • *Participation Procedure Procedure for audience participationAudience will be in a listen-only modeIf you wish to ask a question or make a comment, press *6 on your telephone to un-mute your telephoneAfter speaking, please press *6 again to re-enter listen-only mode

  • *Washington Update AgendaWelcoming RemarksHealth UpdateRetirement UpdateLegal Update Concluding Remarks/Questions

  • The November Elections: HealthNovember electionsWill one party take control of the White House and Congress???Impact on ACA could be huge if Rs have total controlSignificant effect also if just change in White HouseImpact on Executive Agencies

  • Health Regulations: shared responsibilityNotice 2012-58 on shared responsibilityBasic intent is to allow mechanism for employers to count FTEs who could be subject to 4980H penaltySafe harbors for counting variable-rate and seasonal employees Reliance on safe harbor guidance through 2014Many remaining questions, especially how soon must we start measuring to avoid 2014 penalty?*

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  • Health Regulations: waiting periodsNotice 2012-59: temporary guidance on ACA waiting period rulesIn effect through 2014Plan eligibility provisions based on time limited to 90 days3 calendar months apparently not OKOther eligibility provisions generally OKOK if employee takes longer to elect*

  • Health Regulations: reinsurance Transitional reinsurance programACA requires contribution from insurers and self-insured plans for three yearsIntended to partially offset costs of insurers for insuring high-risk individuals $12B in 2014$8B in 2015$5B in 2016Big question: how will yearly fee be apportioned?Also reporting concerns

  • Health Regulations: upcomingStill awaiting guidance on several key issuesReinsurance Employer shared responsibility provisions Difference between 4980H(a) and (b) penaltiesMeaning of parenthetical (and dependents) ERIC comment letter sent 8/27/12Minimum value AffordabilityCadillac tax

  • Wellness: Broward County11th Circuit affirms District Court summary judgment Broward County wellness program did not discriminate under ADA Countys wellness program fit into safe harbor provision of ADADid not have to meet ADA voluntary standard Only applicable in 11th CircuitOther statutes still apply: GINA, HIPAA, ACA*

  • Retirement Legislative Update August/Sept. political conventionsERIC & other trades send group letter to House of representatives in support of HR 3287 the SEAL Act to allow flexibility in loan/hardship withdrawal repaymentsNo retirement legislation expected to move prior to November elections

  • Retirement Regulatory Update, Department of Labor Participant Disclosure FAQs on brokerage windows:Release of FAB 2012-02R modifying & replacing Q&A #30 of FAB 2012-02 (issued on May 7, 2012) with a new Q&A 39 on July 30New Q&A 39 states brokerage windows are not DIA for disclosure regulation purposesHighlights DOL concern for plans that only have a brokerage windows and no DIAsNo specific reference to plan fiduciaries to monitor the underlying investments of a brokerage window

  • Retirement Regulatory UpdateDepartment of LaborDepartment withdrawal of Q&A 30 due to variety of factors including:May 31st trades meeting with DOL July 3rd OMB meetingLetter to Secretary Solis from tradesHill visits/Kerry letter/Holt letterCritical press articles

  • Retirement Regulatory Update, contDepartment of Labor pending regulatory guidanceFAQs on 408(b)(2) disclosure regulationsBeneficiary statements & lifetime income (mandate vs safe harbor)Definition of Fiduciary proposed regulation

  • Retirement Regulatory Update, cont.Treasury Department/IRSMAP 21 25 year stabilization rate guidanceNotice 2012-55 & more to comeHybrid plan regulationsSeparate regulation project on PEP plans

  • Legal: Michigan Preemption ChallengeSelf-Insurance Institute of America Inc. v. Snyder, E.D. Mich.State tax on health claim paymentsApplies to both insured and self-insured plansCourt holds law not preempted by ERISASupreme Court precedents seem to the contraryLikely appealPossible amicus brief *

  • Legal: US Airways v. McCutchen Amicus BriefSupreme Court brief Possible limits on subrogationEquitable defensesOverride clear/comprehensive plan provisionsKey issues in briefEquity should not overrule plan terms

  • Legal CommitteeRe-energizedOpen to all ERIC membersActivitiesEvaluation of cases and issuesNow examining Michigan preemption caseCoordinated with ERIC Health and Retirement committees FocusOn callsMeetings


  • Upcoming ERIC callsERIC FocusOn call on shared responsibility: Wednesday, September 12, 2:00 p.m. EDTQuarterly Benefits Litigation Update: Thursday, September 13, 2:00 p.m. EDT Washington Update conference calls: Monday, October 1, 11:00 a.m. Thursday, November 8, 11:00 a.m. Monday, December 3, 11:00 a.m. ERIC Health Care Reform Task Force Thursday, October 11, 4:00 p.m. 5:00 p.m.

  • Upcoming ERIC meetingsWashington Representatives Committee meeting: Monday, September 10, 3:30 p.m. (TODAY)Other Wash Rep Committee meetingsMonday, October 15Thursday, November 13 (post-Election Day)Monday, December 3ERIC Membership and Committee meetings: October 24-25, 2012

  • *To receive ERIC updatesIf you would like to receive your own copy of our emails and notifications of future updates, please let us know by writing to Adreanne Cooper at ERIC (acooper@eric.org.) In this email, please include your contact information or signature block, and please indicate whether you wish to receive information on retirement issues, health issues, legal issues, or all of the above.

  • *For further informationKathryn Ricard, Senior Vice President, Retirement Security kricard@eric.orgGretchen Young, Senior Vice President, Health Policygyoung@eric.org Scott Macey, CEO and Presidentsmacey@eric.orgERIC: 202/789-1400