Agencies Release Semiannual Regulatory Agenda

1. February 17, 2015
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Health Care Reform Update: Week of February 16
Agencies Release Semiannual Regulatory Agenda
Time for you to take a deep breath and relax, well at least just a little.
Twice each year, federal agencies publish a semiannual regulatory agenda to outline regulations
selected for review or development during the next year. Perhaps for the first time in almost five
years, the majority of the anticipated rules does NOT focus on guidance necessary to implement
provisions of the Patient Protection and Affordable Care Act of 2010 (Health Reform) - which
was signed into law by President Obama five years ago, on March 23, 2010.
In fact, with only one or two exceptions, the Department of Labor, the Internal Revenue Service
and the Equal Employment Opportunity Commission’s formal regulatory agenda is remarkably
modest in terms of new regulations for welfare benefit plans, including health coverage. At the
same time, just because a topic is not on the agencies lists doesn’t mean that they are not
developing regulations and guidance on other issues.
So, this may be a great opportunity for you to conduct a self-review of your Health Reform
compliance efforts over the past five years; and, to gather sufficient documentation in
anticipation of increased agency audit activity. Please contact your Willis client advocate if you
have questions about the historical timeline of health reform changes, or if you need guidance on
how to prepare for an agency audit of your welfare benefit plans.
Here is a brief summary of some of the regulatory guidance for welfare benefit plans that is
under development at these three agencies:
Employee Benefits Security Administration, Department of Labor
• Health Care Continuation Coverage: Update COBRA model notices reflecting coverage
that is now available in the Marketplace, as well as special enrollment rights in the
Marketplace.
• Coverage of Certain Preventive Services: Regulatory guidance concerning coverage
without cost sharing of certain preventive health services by non-grandfathered group
health plans and health insurance coverage.
Equal Employment Opportunity Commission
Willis Human Capital Practice, National Legal & Research Group

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• Americans With Disabilities Act (ADA): This proposed rule would address the
interaction between the ADA and wellness programs that offer health plan financial
inducements, and clarify the ADA's nondiscrimination provisions. No new reporting or
recordkeeping is expected. Despite recent litigation over employer-sponsored wellness
programs (See News Flash, October 31, 2014, "Recent EEOC Lawsuits Raise Dormant
Issue in Wellness Programs" and News Flash, November 4, 2014, "EEOC's Request to
Block Honeywell's Wellness Program Denied"), the EEOC asserts that these changes will
“benefit entities … by generally promoting consistency between the ADA and HIPAA
…result(ing) in greater predictability and ease of administration….”
• Genetic Information Nondiscrimination Act: This proposed rule would address
inducements to employees' spouses or other family members who respond to questions
about their current or past medical conditions on health risk assessments. “… The
regulation does not impose any new employer reporting or recordkeeping
obligations. … the changes will … (clarify) that employers who offer wellness programs
are free to adopt a certain type of inducement without violating GINA…”
Internal Revenue Service, Department of the Treasury
• Employer Contributions to Health Savings Accounts: Guidance on the interaction
between the comparability rules and cafeteria plan nondiscrimination rules … where not
all of the employer's employees contribute to a Health Savings Account (HSA) through a
cafeteria plan.
• Cafeteria Plan Election Changes: Guidance relating to permitted cafeteria plan mid-year
election changes.
• Qualifying Medical Expenses: Guidance concerning deductible medical and dental
expenses.
• Health Flexible Spending Account (FSA) Carryover: Guidance regarding the use of
contributions or benefits in a subsequent plan year or period of coverage.
• Women’s Preventive Services: Add an alternative process for eligible organizations to
use concerning notification of religious objections related to the provision of
contraceptive coverage.
• Women’s Preventive Services: Update the definition of “eligible organization” in light of
the Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc.
• Health Insurance Portability and Accountability Act (HIPAA) Special
Enrollments: Update regulations, including an extension of the time periods for elections
by tolling the limitations, updating the interaction between HIPAA portability and the
Family Medical Leave Act (FMLA), and prescribing how employers are to count their
number of employees.
• Cafeteria Plan: Finalizing the regulations proposed in August 2007.
• Minimum Essential Coverage/Minimum Value: Defining MEC and MV with regard to
employer shared responsibility rules under IRC 4980H.
• Minimum Essential Coverage: Defining MEC and providing other rules with regard to
individual shared responsibility provisions under IRC 5000A.

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This is only a summary of the hundreds of anticipated regulations that are part of the formal, Fall
2014 Regulatory Agenda. Detail is available at http://www.reginfo.gov/public/do/eAgendaMain.
Willis will, of course, keep you informed of regulatory developments and guidance affecting
your welfare benefit plans.
This information is not intended to represent legal or tax advice and has been prepared solely for informational
purposes. You may wish to consult your attorney or tax adviser regarding issues raised in this publication.