In the larger scheme of corporate mergers and acquisitions, benefits issues are just nuisance issues ... until they're not. Buyers in stock and asset purchases are often stunned to learn that they may own COBRA liability related to the seller's former employees (and their dependents). And they might be required to open the doors of their group health plans to unwanted guests – the metaphorical Cousin Eddie – for up to 36 months.

In this, the final substantive episode of the final season of ERISA is a Friend of Mine, Ed and Scott unravel the beguiling mysteries of COBRA (and health FSA) coverage in the M&A. The episode explores:

• Why and how does the stock vs. asset nature of a sale affect COBRA liabilities?
• If the parties to a corporate transaction contractually assign COBRA responsibility, what happens if the obligee drops the COBRA ball?
• How is sorting the COBRA obligations in an M&A like Scott trying to get all his kids out the door in the morning?
• How can buyers and sellers deal with health FSA coverage to make the corporate transaction painless for enrollees in the seller's FSA?

When a home’s circuitry goes bust, sometimes you have to rip into the walls to reveal the source of the problem. So too, with medical insurance.

With the cost of medical care, and thus medical insurance, trending relentlessly higher, Congress decided it was time to bust into the walls to figure out why. Enter a new obligation on group plan sponsor: medical plan cost reporting.

In this episode of ERISA is a Friend of Mine, Scott and Ed take a look at this new reporting obligation and the dazzling array of data the feds want plan sponsors to disclose, starting as early as this December. Tune in to learn:

• What does this new obligation require of employers?
• Who will employers need to lean on in order to make their disclosures?
• Why do Ed and Scott feel adrift on the sea of mediocrity?
• When is the first report due … and when must subsequent filings be made?

In the ERISA world, the collision of COBRA with Medicare is about as brutally taxing mentally as an ultramarathon is physically. Lucky for Ed and Scott, Courtenay Brummer from Lockton’s Mylo division joins the show to help us understand some of the convoluted nuances we encounter when COBRA and Medicare collide. In this episode, the trio work through:

• When does Medicare enrollment allow a plan to terminate COBRA?
• Why doesn’t Medicare enrollment, for an individual already buying COBRA coverage, operate as a second COBRA qualifying event?
• Where an employee enrolls in Medicare before employment termination or reduction in hours, why might their dependents be entitled to more than 18 months of COBRA?
• If Ed and Scott were really big-time ERISA lawyers, would they really need to draw a picture to explain all this?
• Why do individuals who wait until COBRA is exhausted before leaping to Medicare risk a lifetime late enrollment penalty?

Mylo can help sort out not only Medicare enrollment timing issues, but also whether Part C is a better option than A, B and D, and when it makes sense to consider a Medigap plan. To contact our guest, Courtenay Brummer you can call her (913-981-3695) or reach out to her by email ([email protected]).

If ERISA compliance were as easy as baking a cake, the establishment of a plan document would be an essential step in the recipe before it goes in the oven. Plan documents are critical to permit proper administration of the plan and, thusly, keep employers out of trouble. In this episode, Ed and Scott welcome back their colleague, and former Department of Labor national office attorney, Suzanne Bach, and address:

• What is a plan document and why is it important?
• Can a plan “document” be comprised of multiple documents?
• Can a plan document double as a summary plan description?
• When it comes to asking stupid questions, should Ed or Scott really be the judge?
• What’s the difference between a healthcare plan, a cafeteria plan, and a wrap plan?

Lifestyle spending accounts, or LSAs, might be the new darling of employee benefit offerings, but this recent innovation is not without risk. Specifically, these employer-funded notional accounts, that can pay for everything from yoga classes to emergency car repairs, shouldn’t get too cozy with ERISA.

In this episode, Ed and Scott welcome the newest member of the Lockton Compliance Services team, Ruhe Wadud, to explain the ins and outs of LSAs and why ERISA is no friend of these new spending accounts.

• Why didn’t Scott invite Ed to episode 5, and just who is Robin Leach?
• What are LSAs, and what are they typically used for?
• Why “let the buyer beware” is the savvy employer’s watch phrase when listening to LSA vendor pitches.
• How LSAs pose ERISA risks, and how to avoid them.

At the end of last year, Congress passed a piece of legislation that addressed, among other things, new broker and consultant disclosure requirements that affect all contracts entered into or renewed Dec. 27, 2021 or after. While some disclosures already happen, the new obligations are focused on getting more detailed information in the hands of plan sponsors and fiduciaries. 

In the latest episode, Ed leaves his beloved podcast baby in the safe (safe?) and loving (loving?) hands of Scott and his honorary cohost Rory Kane Akers. Together, Scott and Rory take transparency to a whole new level as they tackle broker and consultant compensation disclosures. 

• What plans are covered by these new requirements? 
• Who counts as a “consultant” now expected to disclose this compensation information? (HINT: It’s not as clear cut as the broker distinction.) 
• How do plan sponsors get this information? Do they have to request it? When should they expect the information to be delivered? 
• How are the DOL and Santa similar? (Yes, you read that right.) 
• What do brokers and consultants have to disclose? What is the difference between direct and indirect compensation? 
• What’s the plan sponsor supposed to do with all this information? 
• Where is Ed by the way? Is he okay? Seriously, if you’ve seen him, let us know.

One of the most vexing aspects of benefit plan sponsorship and administration is hanging on to old records like enrollment forms, claim denials, plan documents, SPDs, ACA filings, etc. So when it comes to record retention, how long is long enough?

Ed and Scott welcome to the show their colleague, attorney Suzanne Bach, formerly of the Labor Department’s national office, to explain the rules, and best practices, around plan-related document retention. Join them as they explain:

• Why the answer to “What if I can’t find it?” in response to federal enforcement agents’ request for plan records is going to be “You lose.”
• How does the record retention period differ depending on the law requiring the document and depending on how the request is couched?
• Why isn’t “quadruplely” a word? Or is it? (It is in Ed’s world!)
• Why does a clear record retention policy actually help – not handcuff – plan sponsors?

As a companion piece to this episode, check out the nifty record retention grid prepared by the show’s guest, Suzanne Bach, J.D.

Poison – the rock band, not the substance – reminded us that every rose has its thorns, and that's certainly true when it comes to telemedicine. Telemed brings primary care and so much more, like substance use treatment and even physical therapy, into the virtual age. It offers unprecedented convenience to patients, lower overhead for providers and safety during a pandemic. But it's not all a bed of roses. In this episode, Scott and Ed discuss telemedicine's clinical and convenience advantages but warn about the compliance thorns that come with it. They discuss:

• Why is offering a telemed portal only to enrollees in the major medical plan a best practice?
• Why is it ok to go against the above mentioned best practice during the COVID-19 public health emergency?
• Why do some vendors mislead employers into thinking pairing telemed with a high deductible health plan is no big deal?
• How to reconcile telemed with HSA eligibility, what's the telemed/HDHP/HSA "free pass," and how long does it last?

Federal regulators seem to have little hesitancy in asking employer group health plan sponsors to do the near impossible. The near-impossible dream du jour requires employers to certify that their plans comply with mental health parity non-quantitative limitations, or NQTLs. In this episode, Scott and Ed welcome colleague and friend of the show Rory Kane Akers, former DOL mental health parity auditor. Rory breaks down what employers are required to do, why it’s nearly impossible for them to do it alone, and best practices for leaning on carriers and third-party administrators (TPAs) to help. The trio tees up:

• What exactly are non-quantitative treatment limits, and why do the parity rules care?
• Why is Scott so fond of mental health care but not so much the parity rules?
• Why does it matter, when arming itself to satisfy the non-quantitative assessment requirement, whether the employer’s plan is insured or self-funded?
• What are the two (or three) possible responses from carriers or TPAs when asked to help provide the required NQTL analysis, and how do employers respond to each?

With the COVID-19 delta variant on the rampage, the federal government and many private employers are ramping up vaccination campaigns. Statistics show the unvaccinated are 11 times more likely than the vaccinated to die from the virus. The feds are poised to mandate vaccinations outright for employees of many private employers. But in the meantime, a growing number of employers are using medical-plan related wellness programs to incentivize employees to get vaccinated.

In this first episode of Season 6, Ed and Scott outline the boxes an employer must check to promote vaccinations through a wellness program. Paula Day, Director of Lockton’s HR Compliance Consulting, drops by to school the guys on the similar boxes an employer must check when incentivizing vaccines outside of a wellness program. In this episode, the trio address:

• Which employers are subject to the Biden administration’s new vaccination mandate?
• Why employers cannot condition medical plan eligibility – or coverage of treatment of the virus – on vaccination status?
• Is Ed and Scott’s mountain climbing adventure a perfect metaphor for employers’ vaccination efforts?
• Employers need a vaccination policy; what should it include?
• Why was Scott so full of bad ideas during this episode’s lightning round?