| Advisory: Employee Benefits and Same-Sex Marriage

On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of the federal Defense of Marriage Act (DOMA) was unconstitutional.

That section of DOMA defined “marriage” and “spouse” as excluding same-sex partners for purposes of determining the meaning of any federal statute, rule or regulation. Prior to the Windsor decision a handful of states and the District of Columbia recognized same-sex marriage. Since the Windsor decision same-sex marriage has either been legislatively approved or court mandated in a majority of the states: as of October 17, 2014, same-sex marriage is considered to be legal in 30 states and the District of Columbia.[1]

Same-sex marriage is effectively legal for federal benefits law purposes and now legal in a majority of states, largely as a result of the U.S. Supreme Court declining to review appeals of lower courts’ decisions banning state “mini-DOMA” laws as a violation of equal protection principles. Benefits and human resources professionals operating companies in the 30 states (and DC) that recognize same-sex marriage all have the same question: what does this mean for their employee benefits plans?

Because of the Windsor decision, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) (and most other federal agencies) have indicated that they will consider the term “spouse” to include individuals married to a person of the same sex who were legally married in a state or foreign jurisdiction that recognizes such marriages[2], regardless of whether they reside in a state that does not recognize such marriages (this is known as the “Rule of Celebration“).

For employee health benefits purposes, Windsor is important because it dictates the federal tax treatment and federal rights of employees who receive same-sex spousal benefits.

With respect to fully-insured welfare benefit plans, state law will dictate in all cases. This means that in the 30 states (plus DC) that recognize same-sex marriage, a fully insured health insurance plan that provides benefits to spouses must also offer the same coverage to same-sex spouses.

For self-insured plans, the treatment is not as clear. The Employee Retirement Income Security Act of 1974 (“ERISA”) preempts any state law inasmuch as the state law relates to any benefit plan. This preemption provision does not apply to fully-insured plans, so state law does apply to them (as discussed above). For self-insured plans, there is an argument that a state same-sex marriage law that applies to a self-insured plan would be preempted. However, many practitioners would recommend that an employer in a state that has legalized same-sex marriage that sponsors a self-insured plan consult directly with qualified ERISA counsel to determine whether they can rely on ERISA preemption to avoid being sued by a same-sex married employee. Many practitioners might worry that a law of general applicability like a same-sex marriage law may not be preempted-this would mean that the self-insured plan would be required to offer the same-sex spouse benefits.

For retirement plans like 401(k) plans the IRS has made it clear that the terms “spouse” should be determined using the Rule of Celebration. Again, this means that if an employee and his/her same-sex spouse is married in a jurisdiction that recognizes same-sex marriage, the spouse is recognized for retirement plan purposes regardless of whether the employee lives or works in one of the states that do not recognize same-sex marriage.

For tax purposes, the Rule of Celebration also applies: employees who are married to a same-sex spouse in a jurisdiction that recognizes same-sex marriages do not have to impute income for the spousal coverage for federal tax purposes even if the employee resides in a state that does not recognize same-sex marriage. However, an employee who is legally married to a same-sex spouse but who lives in one of the states that does not legally recognize same-sex marriage, will have to have the value of the benefit for the spousal coverage imputed into the employee’s income for state income tax purposes, unless the spouse qualifies for “dependent” status under state tax law.

Employers that offer same-sex spousal coverage should not require any greater documentation (marriage certificate, etc.) from same-sex couples than they do from opposite-sex couples.

Finally, the IRS has recently released guidance advising employers to assess whether their “spousal” language in all of their employee benefit plans is consistent with the Rule of Celebration. Amendments, to the extent they are required, generally must be completed by December 31, 2014.

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[1] As of October 17, 2014, eight states have recognized same-sex marriage through state legislation (Delaware (July 1, 2013), Hawaii (Dec. 2, 2013), Illinois (June 1, 2014), Minnesota (Aug. 1, 2013), New Hampshire (Jan. 1, 2010), New York (July 24, 2011), Rhode Island (Aug. 1, 2013), Vermont (Sep. 1, 2009). Three states have adopted same-sex marriage by popular vote: Maine (Dec. 29, 2012), Maryland (Jan. 1, 2013), Washington (Dec. 9, 2012). 19 states recognize same-sex marriage as a result of court decisions, with most occurring after the Windsor decision: Arizona (Oct. 17, 2014), California (June 28, 2013), Colorado (Oct. 7, 2014), Connecticut (Nov. 12, 2008), Idaho (Oct. 13, 2014), Indiana (Oct. 6, 2014), Iowa (Apr. 24, 2009), Massachusetts (May 17, 2004), Nevada (Oct. 9, 2014), New Jersey (Oct. 21, 2013), New Mexico (Dec. 19, 2013), North Carolina (Oct. 10, 2014), Oklahoma (Oct. 6, 2014), Oregon (May 19, 2014), Pennsylvania (May 20, 2014), Utah (Oct. 6, 2014), Virginia (Oct. 6, 2014), West Virginia (Oct. 9, 2014), Wisconsin (Oct. 6, 2014). DC recognized same-sex marriage on March 3, 2010.

[2] As of September 21, 2013 the following jurisdictions recognize same-sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and Washington, D.C.

[3] Assumes that same-sex spouse is not a dependent of the employee for federal tax purposes. In all instances of imputation, value of the benefit provided is imputed into the income of the employee. Check state revenue laws for proper imputation methodology. 

 


| We've Been Designated as a Well Workplace!

SIG WELCOA Wellness Award Photo

 

Silberstein Insurance Group is pleased to announce that we have been designated as a Well Workplace at the Small Business Level by the Wellness Council of America (WELCOA).

By achieving this designation, we will be recognized by WELCOA as one of America’s Healthiest Small Companies. SIG is the first benefits consulting firm in the state of Maryland to receive this designation and are one of fewer than 10 small businesses in the country to receive this recognition in 2014.

By successfully meeting a rigorous set of health promotion standards, SIG has demonstrated their willingness to promote and improve the health and well-being of their most valuable asset – our employees. (more…)


| IRS to Amend Cafeteria Plan Regulations to Facilitate Enrollment in Marketplace Coverage

On Thursday, September 18, 2014, the Internal Revenue Service (“IRS”) released Notice 2014-55, which expands the cafeteria plan “change in status” rules to allow plans to offer employees an option to revoke their elections for employer-sponsored health coverage to purchase a qualified health plan through a Health Insurance Marketplace (“Marketplace”).   The notice is effective immediately and will appear in IRB 2014-41, to be published Oct. 6, 2014.

The notice addresses two specific situations in which a plan could allow an employee to revoke a cafeteria plan election (other than a health FSA election): due to enrollment in the Marketplace; and due to a reduction in hours of service. This should be a welcome relief to employers that may have been struggling with how to allow employees to change coverage from under the employer’s plan to a Marketplace or other group health plan. (more…)


| Large Self-Insured Plans Must Register for an HPID by November 5, 2014

As part of the Affordable Care Act’s (“ACA”) Administrative Simplification provision, all “controlling health plans” (defined below) must obtain a 10-digit numeric identifier known as a Health Plan Identifier, or HPID. The HPID is part of a project that federal agencies, health insurers and health care provider groups have been working on for years, as final rules for the HPID requirement were published in the Federal Register on September 5, 2012 (77 FR 54719) (the “Final Rules”).

The Final Rules require health plans to register for an HPID by November 5, 2014 (small health plans have until November 5, 2015 to register). Specifically, all “Controlling Health Plans” must obtain a HPID. The U.S. Department of Health and Human Services (“HHS”) describes a Controlling Health Plan (“CHP”) as a health plan that controls its own business activities, actions, or policies; or is controlled by entities that are not health plans. In plain English, this includes most employer-sponsored self-insured group health plans. (more…)


| SIG Named 2014 Best Places to Work in Insurance!

SIG Named 2014 Best Places to Work in Insurance!

SIG has been named one of the Best Places to Work in Insurance!  This sixth annual program was created by Business Insurance and Best Companies Group. 

This survey and awards program was designed to identify, recognize and honor the best employers in Insurance.

To be considered for participation, companies had to fulfill the following eligibility requirements:

- Be a for-profit, not-for-profit business or government entity;
- Be a publicly or privately held business;
- Have a facility in the United States;
- Have at least 25 employees;
- Be in business a minimum of 1 year;
- Be one of 8 options within the insurance industry (see program website for eligibility).

Companies from across the country entered the two-part survey process to determine the Best Places to Work in Insurance. The first part consisted of evaluating each nominated company’s workplace policies, practices, philosophy, systems and demographics. This part of the process was worth approximately 25% of the total evaluation. The second part consisted of an employee survey to measure the employee experience. This part of the process was worth approximately 75% of the total evaluation. The combined scores determined the top companies and the final rankings. Best Companies Group managed the overall registration and survey process for this program, analyzed the data and determined the final rankings.

The ranking of the sixth annual Best Places to Work in Insurance will be unveiled in the September 29 issue of Business Insurance.

 

 


| SIG Seminar: Tactics for ACA Compliance

The Affordable Care Act has fouled up everything!

You want to stay current on all the changes in health care, but interpreting all the reporting requirements and new regulations have become a full-time task. Since all of this is new, there are no internal resources or experts for you to rely on. The legal complexities can be overwhelming, but you are crystal clear on the steep fines for noncompliance.

You’re not the only one overwhelmed by the new regulations.

To answer all your questions, Silberstein Insurance Group (SIG) Seminars were constructed to be a resource for high level professionals: CEOs, CFOs, HR, as well as advisors to clients, on how to maneuver through the complex landscape of health care reform while continuing to meet their financial goals for organization.

Peter Marathas

Peter Marathas, Partner in Employee Benefits, Executive Compensation & ERISA Litigation Health Care at Proskauer, brought his Boston sense of humor to outline your best strategies for compliance with employer mandates. His agenda covered:

 

  • New Developments & Reform Mandates
  • Strategies for Compliance
  • Approaches to Avoid

 

Avoiding Health Risk Assessment Penalties

 

Marathas, heading up Proskauer’s Health Care Reform Task Force, educated participants of the seminar on how to avoid particularly tricky snares in complying with the Affordable Care Act and answered questions on the required documentation involved. For example, government agencies can have conflicting requirements. The U.S. Equal Employment Opportunity Commission (EEOC) sees Health Risk Assessments as a violation of the American Disabilities Act although the Department of Labor has agreed to conditional eligibility as long as it is not results-oriented, as in, altering the health plans based on the results of health surveys or fitness tests.

 

If you have implemented an HRA, Mr. Marathas recommended that astute HR professionals should keep watch as a recently-filed judicial case, EEOC vs Orion Energy, proceeds through the courts to learn how wellness programs tied to ACA are to be conducted. The outcome of this case, filed this August in US District Court, will determine whether steep penalties (or withholding of rewards) for not participating in a wellness program are enough to deem the program “involuntary”, and thus in violation of the Americans with Disabilities Act.

 

Mr. Marathas also discussed issues related to Individual Mandate Limit increases, consequences of the Hobby Lobby case, new reporting forms just released in July for determining Minimum Essential Coverage for all employers, and Pay-or-Play reporting for employers of more than 50 individuals. He then turned the seminar over to Jamie Hawkins to clarify the advantages and disadvantages of using one of the 300+ different payroll and benefits-tracking technologies on the market today.

 

Jamie Hawkins

 

Jamie Hawkins, an independent consultant at Benefit Technology Resources, works diligently to make sure organizations have the reporting they need in payroll and benefits technology to comply with Affordable Care Act requirements. Covering practical reporting operations, she led the audience through an explanation of how to evaluate your system and reduce the administrative burden on your HR and accounting staff.

 

Jamie’s good news? Most payroll providers already equip you right now with what you’ll need to remain ACA compliant. It’s simply a matter of upgrading or “switching on” those modules. Ms. Hawkins presented case studies of real technology audits, showing that people who do not have an integrated HRIS payroll system can save an average of $19 per employee per month, through technology integration and implementation.

 

SIG covered these compliance issues along with everything you need to know on employee benefits, including:

 

  • How to implement a Tobacco Cessation program
  • What to do if you missed the deadline to pay your organization’s PCORI Fees?
  • Will your terminated employees be eligible for enrollment in the Exchange?
  • Surviving a DOL Audit
  • Form 1095-C Reporting
  • Section 6055 and 6056 Reporting

 

So, if you are still feel baffled by any of these requirements, be sure to attend one of SIG’s upcoming webinars, scheduled for September 17 (Health and Welfare Plan Reporting Requirements) and October 15 (ACA & Its Impact on the Payroll/HR Practitioner).

To learn what you missed today, we’ll let you listen to this seminar’s recording at SIG University and access other seminars and webinars on healthcare, wellness, and all the updates you need to do your job!


| Healthcare Reform for Dummies

stethoscope and an American flag

The Affordable Care Act (ACA) is a wide-ranging, complex set of laws that define how health insurance is applied to different groups. It’s designed to ensure that all eligible Americans have access to healthcare, though, sometimes, the new laws cause confusion. Here is a breakdown of where things are at our current juncture. (more…)


| Silberstein Selected as Finalist for Baltimore’s Best Places to Work Award

 

SIG is so excited to be named a finalist in the Baltimore Business Journal’s 2014 Best Places to Work! With so many awesome employers not only in Baltimore, but also the surrounding counties, we are thrilled to be included in this group of nominees.

 Baltimore Business Journal Best Places to Work award 2014

The BBJ’s “Best Places to Work” awards are given each year to recognize local businesses that make employees feel valued and engaged, inspire trust in management, and have a high employee retention rate.

 

Finalists are chosen based on results of a confidential employee survey, which helps to accurately determine whether employees are fulfilled and prospering in their current role at a company. So, ultimately, it’s really our employees that got us this far. Whether or not we make the final cut for Baltimore’s “Best Place to Work,” we know that we’re doing a great job to those who matter most: our people!

 

With that, we’d like to congratulate our clients who also made the cut: EntreQuest, The Shelter Group, Tribute Home Care, and Wallace Montgomery. At the finalists’ luncheon on October 16th, we hope to witness these companies–and their happy employees–rise to accept the “Best Place to Work” award. Together, we’re each doing our part to make Baltimore a healthier city in which to work and to live!

 

The Shelter Group logo

Wallace Montgomery logo

Tribute Home Care logo

EntreQuest logo

To find out what makes our business stand out, read more about Silberstein Insurance Group.

 


| High Stakes Decisions On The Affordable Care Act

July 22, 2014 marked a day when two different federal courts came out on opposite sides of the same question. In the morning, the U.S. Court of Appeals for the DC Circuit dealt a serious blow to the Obama Administration with a decision that called into question the structural integrity of the “pay-or-play” mandates under the Affordable Care Act (“ACA”). Later in the day, the U.S. Court of Appeals for the Fourth Circuit, sitting down the road in Richmond, came out on the other side of the question.

In Halbig v. Burwell, the Appeals Court for the District of Columbia Circuit, sitting in Washington, DC, sided with the plaintiffs and against the Obama Administration today when it held that the ACA, by its terms, does not allow for subsidies for individual coverage in exchanges established by the federal government. Today, a majority of the states-more than 30-have federally-run exchanges. This means that, at least according to this court, individuals purchasing insurance coverage on the federally-run exchanges will not be eligible for federal subsidies when they purchase insurance. (more…)


| No Pay-or-Play Penalty in States with a Federal Exchange?

No Pay-or-Play Penalty in States with a Federal Exchange? DC Appeals Court Holds that Premium Subsidies are Not Available to Enrollees in Federal Exchanges

The U.S. Court of Appeals for the DC Circuit has dealt a serious blow to the Obama Administration today with a decision that calls into question the structural integrity of the “pay-or-play” mandates under the Affordable Care Act (“ACA”).

In Halbig v. Burwell, the Appeals Court for the District of Columbia Circuit, sitting in Washington, DC, sided with the plaintiffs and against the Obama Administration today when it held that the ACA, by its terms, does not allow for subsidies for individual coverage in exchanges established by the federal government. Today, a majority of the states-34-have federally-run exchanges. This means that, at least according to this court, individuals purchasing insurance coverage on the federally-run exchanges will not be eligible for federal subsidies when they purchase insurance. This is significant to employers because one of the triggers for assessment of a penalty against an employer under the ACA is that a full-time employee has obtained subsidized coverage on an exchange. If individuals in 34 states are not eligible for subsidies on the exchanges in those states, employers in those states cannot be assessed a penalty. (more…)