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The ERISA Industry Committee
Washington Update:
September 10, 2012
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Participation Procedure
• Procedure for audience participation
• Audience will be in a “listen-only” mode
• If you wish to ask a question or make a comment, press *6 on your telephone to “un-mute” your telephone
• After speaking, please press *6 again to re-enter “listen-only” mode
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Washington Update Agenda
• Welcoming Remarks• Health Update• Retirement Update• Legal Update • Concluding Remarks/Questions
The November Elections: Health
• November elections– Will one party take control of the White House
and Congress???• Impact on ACA could be huge if R’s have total
control
• Significant effect also if just change in White House– Impact on Executive Agencies
Health Regulations: shared responsibility
• Notice 2012-58 on shared responsibility– Basic intent is to allow mechanism for
employers to count FTEs who could be subject to 4980H penalty
• Safe harbors for counting “variable-rate” and seasonal employees
• Reliance on safe harbor guidance through 2014
• Many remaining questions, especially how soon must we start measuring to avoid 2014 penalty?
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Health Regulations: waiting periods
• Notice 2012-59: temporary guidance on ACA waiting period rules– In effect through 2014
• Plan eligibility provisions based on time limited to 90 days– 3 calendar months apparently not OK– Other eligibility provisions generally OK– OK if employee takes longer to elect
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Health Regulations: reinsurance
• Transitional reinsurance program– ACA requires contribution from insurers and self-
insured plans for three years– Intended to partially offset costs of insurers for insuring
high-risk individuals – $12B in 2014– $8B in 2015– $5B in 2016– Big question: how will yearly fee be apportioned?
• Also reporting concerns
Health Regulations: upcoming
• Still awaiting guidance on several key issues– Reinsurance
– Employer shared responsibility provisions • Difference between 4980H(a) and (b) penalties
• Meaning of parenthetical (and dependents)
• ERIC comment letter sent 8/27/12
– Minimum value
– Affordability
– Cadillac tax
Wellness: Broward County
• 11th Circuit affirms District Court summary judgment – Broward County wellness program did not
discriminate under ADA – County’s wellness program fit into safe harbor
provision of ADA• Did not have to meet ADA “voluntary” standard
– Only applicable in 11th Circuit• Other statutes still apply: GINA, HIPAA, ACA
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Retirement – Legislative Update
• August/Sept. political conventions• ERIC & other trades send group letter to House of
representatives in support of HR 3287 the SEAL Act – to allow flexibility in loan/hardship withdrawal repayments
• No 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 30
– New Q&A 39 states brokerage windows are not DIA for disclosure regulation purposes
– Highlights DOL concern for plans that only have a brokerage windows and no DIAs
– No specific reference to plan fiduciaries to monitor the underlying investments of a brokerage window
Retirement – Regulatory Update
Department of LaborDepartment withdrawal of Q&A 30 due to variety
of factors including:– May 31st trades’ meeting with DOL – July 3rd OMB meeting– Letter to Secretary Solis from trades– Hill visits/Kerry letter/Holt letter– Critical press articles
Retirement – Regulatory Update, cont
Department of Labor – pending regulatory guidance
• FAQs on 408(b)(2) disclosure regulations
• Beneficiary statements & lifetime
income (mandate vs safe harbor)
• Definition of Fiduciary proposed regulation
Retirement – Regulatory Update, cont.
Treasury Department/IRS
• MAP 21 25 year stabilization rate guidance– Notice 2012-55 & more to come
• Hybrid plan regulations
• Separate regulation project on PEP plans
Legal: Michigan Preemption Challenge
• Self-Insurance Institute of America Inc. v. Snyder, E.D. Mich.
• State tax on health claim payments– Applies to both insured and self-insured plans
• Court holds law not preempted by ERISA– Supreme Court precedents seem to the contrary
• Likely appeal– Possible amicus brief
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Legal: US Airways v. McCutchen Amicus Brief
• Supreme Court brief
• Possible limits on subrogation– Equitable defenses– Override clear/comprehensive plan provisions
• Key issues in brief– Equity should not overrule plan terms
Legal Committee
• Re-energized
• Open to all ERIC members
• Activities– Evaluation of cases and issues
• Now examining Michigan preemption case
• Coordinated with ERIC Health and Retirement committees
– FocusOn calls– Meetings
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Upcoming ERIC calls
• ERIC FocusOn call on shared responsibility: Wednesday, September 12, 2:00 p.m. EDT
• Quarterly 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 meetings
• Washington Representatives Committee meeting: Monday, September 10, 3:30 p.m. (TODAY)
• Other Wash Rep Committee meetings– Monday, October 15
– Thursday, November 13 (post-Election Day)
– Monday, December 3
• ERIC Membership and Committee meetings: October 24-25, 2012
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To receive ERIC updates• If 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 ([email protected].) 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.
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For further information
• Kathryn Ricard, Senior Vice President, Retirement Security – [email protected]
• Gretchen Young, Senior Vice President, Health Policy– [email protected]
• Scott Macey, CEO and President– [email protected]
• ERIC: 202/789-1400
