amp Challenges Audits Compliance Under ERISA and ACA Roles and Responsibilities ACA and Compliance Highlights DOL Audit What We Will Cover wwwcompliancedashboardnet assuredpartners2 ID: 658283
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Slide1Slide2
Dan BondCompliancedashboard, LLC
&
Challenges
Audits
Compliance
Under ERISA and ACASlide3
Roles and ResponsibilitiesACA and Compliance Highlights
DOL Audit
What We Will CoverSlide4
www.compliancedashboard.net/assured-partners-2
Slides from today’s presentation
Resources
Marketing material
Landing PageSlide5
Compliance RolesSlide6
Compliance Cost
Plan Admin/Fiduciary
Liability
ERISA Title I
Prepare/Distribute Notices
Summary of Benefits and Coverage
Summary Annual ReportWomen’s
Health and Cancer Rights Act NoticeChildren’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 ProceduresPHSA MandatesPrepare Disclosure Language & Materials Qualified Medical Child Support OrdersNewborns’ 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 1095Affordable 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 MethodsEmployee 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 proceduresRisk assessment/breach notification proceduresImplement/Review administrative, technical and physical safeguards Audit plan documentation Workforce training EDI Rules
Compliance CostSlide7
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 RolesSlide8
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 RolesSlide9
Laws:
ERISA, COBRA, HIPAA
Range:
$110 to $2,500 per day
Liability:
ERISA
plan
administrator
PenaltiesSlide10
Excise Tax
$100 Per Person Per Day
Discovered on Audit:
Min.
$
2,50
0-$
15,000Max: 10% health costs or $500,000
DOL Actions
Civil Suit
Audit
Participant Civil Suit
Under ERISA to Enforce PHSA Mandates
ACA PenaltiesSlide11
ACA and Compliance Highlights
The LatestSlide12
1094B/1095B
March 31 to Employees
May 31 (June 30) to IRS
Cadillac Tax
Delayed to 2020
Tax is deductible
ACA ExtensionsSlide13
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 2016Slide14
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 IncreasedSlide15
“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
510Slide16
“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 ActSlide17
Wellness Compliance Challenges
Is It a Health Plan?
Does it provide medical care?
Physicals, s
creenings, counseling, tobacco
c
essation
Or, does it only provide other services?
Educational programs, exercise programs, reimburse health club fees, written HRAsSlide18
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 CodeSlide19
DOL AuditSlide20
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
Slide21
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 planSlide22
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 StepsSlide23
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 ActSlide24
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 recordsSlide25
DOL Audit Steps
ACA
Grandfathered Status
PHSA Mandates
Claims appeals and reviews
Rescinding Coverage
Summary of Benefits and Coverage (SBC)
Notices and DisclosuresSlide26
Findings of the Investigation
If no violations: closing letter
If violations: Voluntary Compliance
Notice Letter
Lists details of violation and corrective actions
DOL Audit StepsSlide27
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 litigationSlide28
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 letterSlide29
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 PageSlide30
DOL Audit Considerations
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 resultsSlide31
QuestionsSlide32
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