Hey everybody, the IRS is a little late to ARPA COBRA subsidy party, but it brought tacos! In this season-ending episode of ERISA is a friend of mine, Ed and Scott take us page-by-page through the IRS’s 41 pages of 86 FAQs on how the ARPA COBRA subsidy works. Well, not really … they break it down a little more briefly than that. Join us for this episode where the boys explain:

• Who is eligible for ARPA subsidies, and who is not?
• Can Ed make the podcast’s “lightning rounds” slower than they already are?
• Why is Ed giving the IRS props for offering guidance to the ARPA scheme, even though we’re already nearly three months into the six-month ARPA subsidy window?
• What are the three pieces of good news the IRS offered up about the ARPA “second bite at the COBRA apple”?
• What should Scott learn – and quickly – about severance agreements?
• When and how does the employer claim tax credits for fronting ARPA COBRA subsidies?

For more on the ARPA COBRA subsidies, see our recent alert and webcast (password: Lockton.1) on the IRS guidance.

More and more employers are turning to “voluntary benefits” to supplement their traditional group offerings, but what does the term voluntary benefits really mean? Aren’t all benefits “voluntary”?

Join host Scott Behrens and his trusty sidekick (at least for this episode) Ed Fensholt as they explain why some benefits are more “voluntary” than others, what’s required for some voluntary benefits to avoid ERISA, and whether what employers don’t do in order to avoid ERISA status might do their employees (and themselves) more harm than good. This episode tackles:

• How many times did Ed try to kill Scott in one week?
• What does the term “voluntary benefits” really mean?
• Is ERISA’s safe harbor for voluntary benefits a refuge because a benefit is employee-pay-all, or paid with after-tax dollars?
• The ERISA safe harbor is lost due to employer “endorsement,” but what constitutes an endorsement? Hint: it doesn’t take much.
• Who would win the Pay-per-view showdown between the DOL, IRS and HHS?
• Would employers (and their employees) be better off by embracing the glory that is ERISA?

There's a near $3 billion pot o' gold up for grabs for employers (and their employees) who purchased Blue Cross Blue Shield (BCBS) insurance policies or used BCBS to administer claims under self-funded plans between 2008 and 2020. But before you begin making retirement plans, understand that nobody – except maybe the class-action lawyers – is going to get rich on the backs of the settlement.

The expected claimants number in the tens of thousands and any group plan's share of the settlement pie is divvied up between the employer and employees under one of a pair of formulas described in the settlement agreement. Ed and Scott welcome "BCBS point man" Mark Holloway to explain:

• How does the BCBS association work, and where did this pot of money come from?
• Who can make a claim for a piece of the pie (and why is Scott frozen out)?
• In making a claim, should employers use the "default" or "alternative" method (hint: How much work do you want to do?)
• Why did Ed disappear to the Colorado mountains…and why might 007 want to know?
• What market reforms did BCBS agree to make as part of the settlement, and how might they benefit plan sponsors that buy group insurance from BCBS?

For more information about the BCBS class action settlement, and to view the settlement agreement, FAQs and model claim forms, see www.bcbssettlement.com.

For model employee communications about the settlement, ask your Lockton account service team.

Almost 75 years ago, Jackie Robinson became one of major league baseball’s greatest players, but only because he was given a chance to play. In the substantially nondiverse world of employee benefits insurance and brokerage, minority-owned businesses simply want an opportunity to play.

In this compelling episode of ERISA is a friend of mine, Ed and Scott welcome Ken Hurtt, CEO of Birwood Services Group, a minority-owned broker founded in 2020 by Mr. Hurtt in a partnership with Lockton. Listen as Mr. Hurtt explains how Birwood, with Lockton’s support, plans to create a flow of opportunity for minority-owned businesses in the insurance industry. This episode explores:

• How can Birwood help employers meet their diversity, equity and inclusion goals?
• Ways that Birwood, with Lockton’s financial support, is working to foster insurance-related career opportunities for more people of color.
• What is the Birwood supply chain? How does it look beyond Birwood’s business objectives to introduce other quality, minority-owned benefits businesses to employers and give those firms a chance to compete for their business?
• How the name “Birwood Services Group” got its name? (Hint: It’s a journey from racial prejudice to a symbol of hope and change.)
• What does the Scorpions’ song “Winds of Change” have to do with the Birwood Wall?

To learn more about Birwood Services Group, visit www.birwoodsg.com or contact Mr. Hurtt directly.

With all the new benefits compliance challenges employers face this year, Ed and Scott take something of a breather to revisit an old friend. Corporate wellness programs are now fully entrenched in corporate America, still operating under the venerable HIPAA and Affordable Care Act rules that employers came to grips with long ago. But the party-crashing EEOC continues to snipe around the rules, and after all these years, still can’t get its wellness program act together.

In the latest episode of ERISA is a friend of mine, the boys describe the on again-off again, on again-off again EEOC approach to wellness programs, and address important questions like:

• How is the EEOC like those annoying people who constantly inject themselves into a conversation but are always wrong?
• Should employers bring their wellness programs to a halt waiting on the EEOC? (Spoiler alert: Uh, no.)
• Why is the passive voice not discernable by Scott? Or should we ask, why can’t Scott discern the passive voice?
• If Congress doesn’t pass conflicting laws, can’t the EEOC just leave well enough alone?
• Why does Scott think that, just when it seems Congress can’t do less, it really can?

When it rains it pours…and whoa, is it raining this year! Not since…well, ever…have benefits plan sponsors seen a year like 2021, not just in terms of the decisions they need to make and things they must do now, but also in terms of what they must be thinking about, planning for and negotiating now, for next year.

Join Ed and Scott from the eye of the storm as they catalog the deluge of major compliance obligations pummeling plan sponsors this year and lurking just around the corner for next, and answer the key questions:

• Should Ed see a doctor about his caffeine intake?
• What must sponsors do this year about cafeteria plan accommodations, outbreak period guidance, COBRA subsidies and more?
• If Scott is elbows-deep in the sausage making in D.C., does that make him “Mr. Sausage”?
• What’s on the agenda for 2022 that sponsors need to be thinking about right now? (Hint: It’s a )
• If Ed loses his house to Scott, and Scott loses his to Ed, will Ed be happy away from the mountains? How will Scott, his wife, four kids and a dog fare in Ed’s humble cabin?

The recent American Rescue Plan (ARP) resurrected an old nemesis for employers: Employer-fronted, taxpayer-reimbursed COBRA subsidies. These subsidies, available from April through September of this year, are available to individuals who lost employer-based coverage due to a reduction in work hours or involuntary employment terminations. But the class of subsidy-eligible individuals is not limited to those currently on COBRA; individuals who could be on COBRA for such a qualifying event, had they elected COBRA when it was offered, are also eligible. How in the world, according to ARP, does that work?

Join Ed and Scott on their intrepid journey to lead ERISA is a friend of mine listeners into the bog that is the ARP COBRA subsidies, and attempt to answer some burning questions.

• How are the ARP subsidies like a Nordic tragedy?
• To which healthcare plans do the subsidies apply?
• What portion of the COBRA premium do the subsidies pay, and how long do the subsidies last?
• In what sort of crazy, mixed-up world are we living when the discussion turns to green ham and eggs?
• If employers have to front the COBRA subsidies, how do they recoup that cost?

Employer group health plan sponsors are already choking on skyrocketing prescription drug costs, and now states are adding insult to injury. But wait, doesn’t ERISA’s thick shield of preemption deflect state laws that directly or even indirectly affect ERISA plans? What happens when states boldly go to bat for retail pharmacies … and the resulting laws throw gasoline on group plans’ already burning prescription drug spend? Ed and Scott welcome Sarah Martin back to the show to discuss a recent Supreme Court ruling and scary legislation pending in other states.

• If Sarah Martin is the show’s favorite prescription drug consultant, does the show have a favorite contraband drug expert? (Hint: Her name might be Lisa.)
• What is ERISA’s “deflector shield,” how does it work, and what state laws blast through it like a photon mega-torpedo?
• How do group plans’ pharmacy benefit managers reimburse retail pharmacies, and why are states looking to crash that party?
• What are NADAC and AWP, and how in the name of outer space did Scott confuse NADAC and NASA?
• Can states protect retail pharmacies, even if the result is to cost ERISA plans “billions and billions” of dollars?

Whoa, Nellie! What was THAT that just happened in Georgia? The Democrats — not to their surprise but to the surprise of some others — have captured the two U.S. Senate seats for Georgia in special run-off elections, and that changes everything in Washington, at least for the next two years. But does everything include federal healthcare policy? Ed and Scott sit down the afternoon following the election, while the Capitol building is under siege, and ponder:

• How exactly do the Democrats control the Senate when they and the GOP both have 50 seats?
• President-elect Biden’s campaign platform included major healthcare policy items … where do they fall now, in his policy batting order?
• Why doesn’t majority control of the Senate give the Democrats carte blanche on major health reform initiatives?
• Should Scott be sweating out potential tax reform as an uber-high wage earner?
• Is Medicare for All in the potential cards, or not so much? Scott goes ”on the record” with his answer! Take it to the bank, EIAFOM peeps!

More and more employers are looking to provide health insurance to contractors, franchisees, agents, and employees of other inadequately related employers under a single umbrella. They continue to bump into a near 50-year-old barrier – multiple employer welfare arrangement (MEWA) rules. Through many a night these rules have left Ed sobbing, but a federal trial court in Texas might have just blown a gaping hole in the MEWA barrier.

• Why is Priya “that without which there is nothing?” (You think these guys could do it alone?)
• What is a MEWA and where are we likely to find them in the real world?
• Who really cares about MEWAs, and why? Who regulates them?
• Do self-insured and fully insured MEWAs pose different problems?
• So how exactly can groups get around the MEWA rules? And why are we talking about Judge Reed O’Connor again?
• Is his recent federal trial court decision precedent? Could there be an appeal?