Health and Welfare Plan Design & Administration

Our ML BeneHelp program recognizes that our employee benefits clients often need an extra pair of hands due to a variety of circumstances—both unforeseen and expected. Through ML BeneHelp, our senior benefits advisors are available for in-person or virtual temporary assignment to assist during crunch times (we expect these assignments would last no more than six months). These professional advisors, many of whom have more than 20 years of experience and have varied backgrounds that include working for corporate human resources/benefits departments, consulting firms, and other law firms (and some are nonpracticing lawyers), bring unique and substantial technical knowledge and practical experience to our benefits practice and clients.

The types of projects ML BeneHelp can assist with include, but are not limited to, the following:

• Drafting, reviewing, and amending plan documents, summary plan descriptions, and summaries of material modifications
• Drafting and reviewing participant communications and notices, including open enrollment materials
• Drafting, reviewing, and processing qualified domestic relations orders (QDROs) and qualified medical child support orders (QMSCOs)
• Conducting internal plan audits (document, operational, and dependent), and assisting with governmental agency audits
• Assisting with and reviewing Form 5500 filings 
• Running point between the client and outside vendors, including assisting with outside vendor RFPs
• Assisting with corrections filings under the Internal Revenue Service Employee Plan Compliance Resolution System (EPCRS) and the US Department of Labor Voluntary Compliance Program (VCP), as well as determination letter submissions
• Assisting with day-to-day administration issues, including benefits claims and appeals matters, enrollment questions, COBRA (and other continuation coverage) questions, tax withholding questions, and other matters
• Assisting with reductions-in-force voluntary severance programs to ensure that the programs and related documentation comply with ERISA, COBRA, tax rules, and plan documents
• Assisting with due diligence reviews and post-closing benefits integration related to mergers, acquisitions, and other transactions

Our senior benefits advisors regularly perform these services and others for health and welfare and retirement plans. They are available to be dedicated to your projects—whether from the client’s offices, remotely, or a combination thereof.

ML BeneHelp services are priced in a variety of ways, including on a fixed-fee basis, which account for the scope of work and whether the senior benefits advisors are working at the client’s location or remotely from their Morgan Lewis offices (or some combination thereof).

In March 2010, the ACA dramatically changed the healthcare coverage universe, requiring employers and group health plans to learn and understand a series of new requirements, terms of art, and coverage schemes. The ACA also introduced practically the first mandate in the area of employee benefits and, at the least, represents the single biggest development in the area since ERISA. We’ve supported our clients every step of the way in this new landscape—even before the ACA was signed into law. In recent years, we have partnered with our clients on myriad ACA compliance projects, such as determining grandfathered status; implementing mandated benefits changes (such as restrictions and prohibitions on annual and lifetime dollar limits, dependent coverage to age 26, no-cost preventive care, revised claims and appeals procedures including external review, etc.); and addressing compliance with the prohibition on waiting periods of more than 90 days. We also help ensure that our clients comply with IRS reporting requirements (Form W-2, IRC Sections 6055 and 6056, etc.), participant notices (summaries of benefits and coverage (SBCs), Exchange Notices, etc.), and applicable taxes and fees (Patient-Centered Outcome Research Institute (PCORI) fees, temporary reinsurance fees, and the “Cadillac tax”).

We help our employer clients manage their health plan structure and eligibility requirements to limit their potential liability under the employer shared responsibility rules and related penalties. Collaboratively, we work to identify and count a company’s ACA full-time employees, establish measurement and stability periods systems when appropriate to track full-time employees, and determine whether the health plans are offering minimum essential coverage that is affordable and of minimum value. We counsel employers and the plans they sponsor on meeting their reporting obligations under IRC Sections 6055 and 6056.

We help our third-party administrator clients to understand the legal changes under the ACA and how the new requirements impact their administrative systems. For example, we have worked with a third-party administrator client to build an hours-counting and ACA full-time employee determination tool.

As ACA compliance and implementation evolve, we closely watch and digest the regulations and guidance frequently issued by the US Department of the Treasury, the US Department of Health and Human Services (HHS), and the US Department of Labor (DOL). 

To assist with day-to-day health plan administration, we consult on the design and implementation of funding arrangements (including retiree medical benefits and voluntary employee beneficiary associations (VEBAs)); review and negotiate administrative services agreements with third-party service providers (including third-party administrators, insurers, and prescription benefit managers); and support our clients through the ERISA claims and appeals process.

Updated and accurate plan documentation is a critical element of compliant health and welfare plans. We assist with establishing and maintaining Section 125 cafeteria plans. We draft, review, and revise welfare plan documents, summary plan descriptions (SPDs), summaries of material modifications (SMMs), summaries of benefits and coverage (SBCs), open enrollment materials, website content, and other participant communications.

Beyond employer and plan clients, we help third-party administrator clients with their employee benefits administration. We work with these clients to understand legal changes and requirements, and the practical impact of those elements on their administrative and operational systems.

In addition to health plans, our clients also look to us to help maintain and consult on the administration of their short-term and long-term disability plans, accidental death and dismemberment (AD&D) plans, life insurance plans, and other types of welfare arrangements.

Through our representation of a broad range of health and welfare clients, including employers and welfare plans of all types, third-party administrators, and insurers, our comprehensive knowledge of the marketplace and practical challenges facing our various clients is ever evolving. Armed with this experience and insight, we bring well-rounded, deeply knowledgeable, and practical counsel to all of our health and welfare clients.

For more than a decade, clients (employers, health plans, and third-party administrators) have relied on our assistance with HIPAA privacy and security compliance. Through our HIPAA Privacy Compliance Initiative, we arm our clients with tools to navigate HIPAA compliance. In the new era of increased enforcement activity and heightened civil and criminal penalties ushered in by the HITECH Act, we continually revise and update this initiative.

Our fixed-fee HIPAA Privacy Compliance Initiative services include:

• Self-Audit Assistance: Working with our HIPAA audit questionnaire, our clients can assess their HIPAA privacy compliance, identify issues, fill gaps, and correct problems. Our lawyers are on hand to guide clients through the self-audit process, identify red flags, and recommend compliance strategies.
• HIPAA Documentation: Up-to-date documentation represents a crucial piece of HIPAA compliance. Based on model documents we have created, we help clients prepare and update documents that meet their specific needs and account for their operations and any additional requirements under the HITECH Act. These documents include privacy policies and procedures, notices of privacy practices, business associate agreements, authorizations, plan document amendments, and plan sponsor certifications.
• Workforce Training: HIPAA requires covered entities to train employees who have access to protected health information (PHI) on HIPAA’s privacy and security rules and the entities’ HIPAA policies and procedures. We provide this training live or through webinars.

Along with our fixed-fee services, we consult with our clients’ privacy officers and other employees when unanticipated HIPAA incidents occur or questions arise. We advise privacy officers and others on responding to requests to invoke individual rights, investigating and responding to individuals’ complaints, investigating and analyzing suspected breaches or violations, and notifying individuals, HHS, and the media of breaches when appropriate. We counsel clients who must respond to HHS inquiries, investigations, or audits. We consult with employers and third-party administrators about what qualifies as PHI covered by HIPAA, and which departments, employees, or vendors are permitted to access and use PHI. When faced with claims or litigation, we advise clients on how and when PHI may be disclosed.

Our team can assist with HIPAA security compliance, including working with information technology (IT) departments and consultants to develop security policies and procedures. We have experience investigating and analyzing suspected breaches that occur within systems.

Clients regularly turn to us to consult on the design and operation of wellness programs that comply with regulations issued by the US Department of the Treasury, HHS, the DOL under the HIPAA nondiscrimination rules and the ACA, and the US Equal Employment Opportunity Commission (EEOC) under the ADA and GINA. We work with clients to implement wellness programs and onsite clinics as well as review and negotiate administrative services agreements necessary to implement those programs. We help to identify the best wellness program structure to maximize employee utilization of those programs. Our clients look to us for help managing their wellness incentives in a manner that complies with the HIPAA nondiscrimination rules and the EEOC guidance, and limits their potential liability against any action taken by the EEOC.

Our team has:

• Advised a large financial institution to expand its wellness incentive program—including implementing a health-contingent tobacco cessation program and corresponding reasonable alternative method—and worked with the client to create a points system under which participants can earn HSA employer contributions for a wide range of participation-only and health-contingent services
• Designed a participatory program for a state university that included a premium reduction reward, with a particular focus on ADA compliance
• Consulted with many clients about changes required for health risk assessments under GINA, and related ongoing issues created by spousal health risk assessments
• Advised clients on the implementation of onsite clinics and the related COBRA considerations
• Advised clients on restructuring wellness programs to comply with regulations issued in response to the ACA
• Successfully defended an attempt by the EEOC to enjoin a client’s wellness program during open enrollment