​First things first, what is intermittent FMLA? The primary function (although not exclusively) of the Family Medical Leave Act is to serve as an unpaid job protection law for those who need to miss work due to a serious medical condition for themselves, or to care for a spouse/child/parent who has a serious medical condition. Normally FMLA leave is designated for a single, continuous time period when an employee misses 3 or more days from work. The employee must get documentation from their or their family member’s medical provider that confirms that they meet the requirements of what FMLA deems a “serious medical condition.” The process for intermittent leave approval is essentially the same, but instead of the participant missing a continuous span of time, intermittent leave allows for an employee to miss work on a discontinuous basis – a day here, a day there – for an ongoing medical condition. 

One common mistake that employers and third-party administrators make is using the same medical certification form for both normal leave and intermittent leave, with no distinct section for intermittent approval. Typically the problem that arises in this scenario is the medical certification form will ask the medical provider to provide a time frame for how long the medical condition of their patient will, or should have, disabled them from work. For an employee requesting intermittent leave though, using a medical form that is void of an “if applicable” intermittent section potentially digresses the leave process to either approved or not approved. It’s when intermittent leave is simply approved outright, without guidelines or structure, that employers see the biggest risk of intermittent leave exploitation.  It should also be mentioned that intermittent leave isn’t just for doctors’ visits, so requesting a doctor’s note for leave absences isn’t a requirement. Thus approving intermittent leave outright essentially entitles the employee to free reign; taking as many absences from work as they wish, citing intermittent leave with little to no legal grounds for recourse. 

That’s why it’s important for the medical certification form designates a section that asks the medical provider to give an educated guess, given the medical condition, on about how much time that employee might need to miss. For example, one to three absences every two months, or 10 absences annually, or whatever the case may be. The intermittent leave can then be approved within the confines of the provider’s recommendation. If the employee does start missing more time then what they were approved for, the employer can then request an updated medical certification validating the increase of absences. 

In addition to simply tracking intermittent absences, employers should also be on the lookout for emerging patterns, such as taking leave before or after weekends; it’s not always the number of days taken that can be considered abuse, but instead the timing in which those days are taken. 

Another misconception that occurs when employers aren’t well versed on FMLA is they make the assumption that a person who approved on intermittent leave can therefore miss 3 or more consecutive days and have those days simply count against their approved intermittent leave. That is not the case. For someone who is on approved intermittent leave, if they miss 3 or more consecutive days, even if it’s for the same medical condition they were approved intermittently for, that would still be considered a separate continuous leave where the full FMLA process must be administered for approval. Another related misconception is absences occurring immediately before and after unscheduled days off and those not being recognized as continuous leaves – but they are. For example, an intermittent approved employee who has the weekends off, if they miss Friday citing intermittent LOA and then they also miss Monday citing the same, while technically they only missed two days of work, that is still considered a continuous leave and a new medical certification is needed for approval.  

​As previously mentioned, intermittent leave was created with good intentions but that doesn’t mean it can’t be taken advantage of, because it can and it frequently is. As discussed, the proper medical certification form is a must. If the returned medical documentation is thoroughly examined and verified, but still seems suspicious, the employer can request or pay for a second opinion. Intermittent leave should never be blindly or open-endedly approved. Once leave is approved, it’s important that managers be properly educated on the terms of the approval and what they need to do to accurately track absences and what to look for in order to curb leave exploitation. There’s plenty of valid needs for intermittent LOA but if it isn’t properly administered it can set a precedent that can lead to a cancerous problem within an organization. If you suspect LOA abuse in your organization, you should consult with your TPA, HR Department, or the Department of Labor to see what can be done to avoid it from continuing and to prevent it from happening again.   

There’s an age old saying in sales that 'the best customer is an educated customer'. When a customer is educated on the product they are spending money on, the more likely they are to be loyal and appreciative towards that product they have invested in and can feel good about the seller- consumer relationship. Employer benefits are hardly different in that regard, and employees seek benefit help solutions in a variety of ways. Sure, with the introduction of the Affordable Care Act, having medical insurance became a mandatory, legally binding, and subject to tax penalties stipulation in the United States, so enrolling in a company’s medical plan might appear less of a choice and more of an obligation. One could argue that the presence of benefit administration software has eased the benefits knowledge gap between employees and employers. Regardless, most employees don’t understand their medical benefits, and there’s still other benefits - short and long-term disability, 401ks, and life insurance for example -  in which citizens are not required to have under the ACA, that employees will elect to waive simply because they don’t understand what it is they are getting in return.

Companies differ in size, culture, diversity, and pay grade. HR departments need to adopt a salesman mentality and not think of their coworkers as just that, but rather as consumers. What’s the best way to reach them with benefit help solutions? What is essential that they know and what isn’t? Considering the demographic, what is the best strategy to communicate with them? With an ever-changing workforce and an ever-changing benefits landscape, it’s imperative to design new, creative, and diverse educational campaigns, because what’s the point of having and paying for something if you don’t know how to use it?  ​

​Self-funded healthcare plans were once considered only an option for large enterprises with the resources and funds to assume the risks and expenses that come with paying the claims of their workforce. That notion is rapidly changing as recent data suggest that large numbers of small and mid-size companies are joining the self-funded trend within the past 5 years. If managed correctly, a self-funded employer could save 10% to 25% of their healthcare costs by eliminating the profit margins imposed on premiums from carriers of fully funded plans. Those potential savings are nothing new though. Neither are the potential risks of self-funded plans – they are a high risk, high reward healthcare strategy.  As much as a company could save on their healthcare benefits over the long term, they could just as easily encounter unexpected, catastrophic claims that could cripple a smaller business. For example, an employee battling an obscure form of cancer for multiple years could rack up millions of dollars in claims and the employer could be stuck footing the bill. 

​Most experts attribute this trend as a recourse to the ACA. The reason being is that the Affordable Care Act requires fully insured plans to meet strict requirements – such as offering these 10 essential benefits. Self-funded plans however are not held to the same requirements and thus employers have more freedom to mold their plans to fit their employees needs while opting out of other benefits that are deemed less pertinent in hopes to reduce costs. In addition to that, the ACA has levied employer cost-share requirements in the form of taxes and fees, often referred to as the health insurance tax. This tax is mostly compensated by the carriers by increasing the premium rates they charge employers. Self-funded plans, however, are not subject to this ACA health insurance tax, nor are they subject to any state insurance regulations and premium taxes. Therefore, even though the risks are still there, self-funded insurance plans can now save money on the carrier’s profit margins, the ACA health insurance taxes, and by being exempt to meet certain essential benefit criteria. Those three cost saving traits have made self-funding plans more enticing to smaller businesses whom may have otherwise thought the savings weren’t worth the risks. 

LET'S BE BUDDIES!

In nearly every industry there’s always been an emphasis on advancing technology to make providing a service or product more efficient and cost effective.  The HR administration industry is no exception – if not a textbook example. For those of us that remember the days when employee personnel files, FMLA cases, COBRA annals, etc. were managed and maintained using physical paper files, we can attest to the rapid growth of HR technology in recent years. The development and implementation of human resource information systems (HRIS) or human resource management systems (HRMS), has and will forever change how company HR departments and third party administrators (TPAs) operate on a fundamental basis. Long gone are the days of large metal filing cabinets full of manila folders organized either alphabetically or chronologically.  As the responsibilities of HR departments have continuously progressed in complexity, HR technology systems have advanced equally to meet the demands of this ever-changing landscape. The recent advancements in HR technology were not only predictable, they were inevitable. After all, HR departments are non-revenue generating sectors – reducing overhead and achieving long term cost reduction tactics are often the top priority for most company executives when it comes to human resources management. However, is it possible that this increased reliance on HR software could potentially lead to, for lack of a better term, a “compliance bubble”?

​In this post we’ll examine the industry’s push towards “Automated COBRA” and the dangerous notions we caution our clients and brokers to be aware of when it comes to streamlining their COBRA.

“Based on our 2016 research, CobraHelp is one of the few COBRA vendors that continues to audit every single IRN and QE request that is issued, whether it be sent from a payroll company via file feed, or submitted via our website. The reason that we do this is that we have found that most file feeds issued by third parties still require data clarification and correction.  By issuing accurate notifications and maintaining current data on file from the get-go, we are reducing risk for all parties involved and expediting the process as a whole. Being that COBRA is so time-sensitive, a streamlined, intuitive, yet safe COBRA process is key and eliminates the dangers that delays can impose upon employers and agencies.” – Heather Underwood, CobraHelp Vice President
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To be clear, by no means are we against the progression of HR Technology; we pride ourselves on staying current with all aspects of the industry - whether it be changes in legislation or technological developments. However, we do not believe that COBRA should be [can be] completely hands-off for plan administrators. While our file feed options and website features do allow for a much more modern approach and come close to full-automation, we will never offer a service that simply issues notices without someone validating the data. In recent years, more than ever, there has been a swell of lawsuits for compliance issues related to COBRA, which can be very costly (for more on that, see our previous post HERE). With that being said, we just can’t justify placing that much trust in a machine—not when it can impact an entire company or negatively impact an individual’s health benefits. 

​Lack of an Audit Process
As nice as it would be to not have to bother with the minutiae details of COBRA, the fact of the matter is that the risk of non-compliance is too great to an employer to have a totally hands-off approach.  One might make the assumption that a fully automated COBRA system will operationally eliminate or reduce the risk of error. We at CobraHelp would strongly caution against making that assumption. It has been our experience that a great deal of the third-party file feeds we receive (mostly generated from a HRIS) still require data clarification and corrections.  If those same files were fed into a fully automated COBRA system where the data wasn’t manually checked, chances are there would have been a number of compliance vulnerabilities. The issue with having a COBRA administration service that has no manual audit process is that by the time a problem is realized, it could be too late.

Take Away
While change is inevitable, and even more so with the exponential advancements in technology, some things should remain true. One such thing in the HR industry should be checks and balances. Even if systems allow for higher automation than ever before, there should at least still be a rigorous audit process to insure continuity and accuracy within those systems. The reason for that is quite simple – there’s just too much of a risk not to. The Human Resource department for any company is unlike any other part of the business: it’s a non-revenue generating sector, and yet, it’s vulnerabilities through litigation and government fines could potentially lead to the demise of the whole establishment. That being said, employers should use caution when considering the idea of having a completely hands-off approach to, not only COBRA, but any HR process. After all, you can’t take “human” out of “human-resources”.  

To most people, saving up for retirement means managing their employer-matched 401(k) or IRA plan. What they might not be aware of is the trending use of HSAs as an alternative retirement savings account. A HSA (Health Savings Account) is a tax advantaged savings account that was introduced to help people with high deductible plans pay for out-of-pocket medical expenses. However, due to the triple tax advantage nature of HSAs – all contributions are pre-tax/tax deductible, all returns on earnings, interest, and investments are tax-free, and all withdraws for qualified medical expenses are tax-free – they have transformed into something more than just a medical expense account. So much so that experts have even advised that some people would be better off using their HSA contributions as their primary retirement savings vehicle and their traditional 401(K) as a secondary option. What also makes a health savings account more desirable then per say a FSA or a HRA, is that it is owned by the employee and not the employer and is therefore portable. That means that if an employee terminates or gets a different job they can take their HSA with them.

Of course there are some drawbacks to using a HSA as a retirement fund. Above all, one must first have a medical plan that actually qualifies for a HSA. Said plan must be a High Deductible Health Plan (HDHP) with Minimum Required Deductibles established annually by the IRS. The minimum required deductible in 2017 will be the same as it was in 2016; $1,300 for self-only coverage and $2,600 for family coverage. Secondly, for anyone planning to use their health savings account primarily as a retirement savings vehicle they need to treat it as such. That means making the maximum yearly contribution ($3,400 for self, $6,750 for family in 2017) each year with no, or at least minimal, withdraws. As previously mentioned, withdraws from an HSA are tax-free for qualified medical expenses, but withdraws for non-medical expenses before the age of 65 are subject to a 20% penalty.  Ideally out-of-pocket medical expenses should be just that - paid out of pocket - for those intending to use their HSA for retirement.  Meaning, if possible, the HSA owner would either need to be fairly healthy pre-retirement, or financially capable of paying their medical expenses out of pocket without tapping into their HSA. That’s easier said than done for a lot of people. The reality is, since they’re conjoined with a HDHP, a large portion of Health Savings Accounts will ultimately have to be significantly utilized for medical expenses or COBRA premiums during their owner’s working years, making it hard to save for retirement.

Again, just to reiterate, all contributions are tax deductible, all earnings are tax-free, and if any medical emergencies do arise pre-retirement, there are no penalties when pulling money out for medical expenses.  To put it simply, if managed correctly, using your health savings account to save for retirement could pay huge dividends in the long run and it should certainly be considered when planning your retirement strategy.

​The polls for the presidential election open in less than two weeks and many of us in the healthcare industry need to forecast and prepare for either outcome. As we all know, the two primary candidates are Hillary Clinton, representing the Democratic Party, and Donald Trump of the Republican Party. In this post we’ll examine both candidate’s platforms and more specifically proposals from each side that could have the biggest impact on COBRA eligibility and enrollee numbers. 

Perhaps the most evident proposal from the Clinton campaign that could dramatically affect the COBRA administration industry is her plan to reduce the age of Medicare eligibility. Clinton’s platform advocates for offering a public-option insurance plan which would allow Americans to voluntarily buy into Medicare when they turn 55.  With the current age for Medicare eligibility set at 65, this proposal, if enacted, could impact COBRA eligibility and thus enrollment. In the current landscape those who are 55 to 64 years old, continuation coverage under COBRA is a viable option when a Qualifying Event occurs. However, the option to buy into Medicare, as Clinton proposes, could certainly decrease COBRA eligibility and the number of enrollees for participants ages 55 and up. To what extent those enrollee numbers could diminish will surely depend on the cost to buy into Medicare, but basic economic principles suggest that if more options are introduced to a market there almost certainly will be a noticeable impact on the existing state of affairs.
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On the other hand, Medicare eligibility can be a COBRA qualifying event for the dependents of those who become eligible. With that being the case, one would assume that if the age to qualify for Medicare is lowered to 55, the result would be an influx in COBRA eligibility and consequently an increase in COBRA enrollees. Yet, under Clinton’s proposal that probably won’t be the case since she promotes that someone could buy into Medicare at age 55; they still wouldn’t be able to receive it at no cost until age 65. It seems unlikely that an actively insured employee on their employer’s group health plan, who has dependents, would elect to waive their current group plan coverage and pay for Medicare for themselves, and either COBRA or an individual policy for their dependents, at the full cost of the premiums. With that being said, in conclusion, if Hillary is elected President and is able to enact this proposal into law, notwithstanding other potential offsetting reform, we should expect a sizable decrease in COBRA enrollees for qualifying beneficiaries ages 55 to 64, as buying into Medicare will add yet another alternative option for that age group.  To what extend those numbers will be effected would remain to be seen. 

Trump’s healthcare platform is less detailed than Clinton’s, his campaign primarily focuses on repealing the Affordable Care Act and instilling “free-market principles” to the healthcare markets. In the event that Trump wins the election and is able to successfully revoke Obamacare, there’s a number of factors that could influence how COBRA is utilized. On one hand, the ACA since its introduction in 2010 has been one of, if not the largest, alternatives to continuation coverage under COBRA. Even though the projected spike in Obamacare are already happening this year, government subsidies and tax credits still make it an affordable option for millions of Americans looking to gain medical insurance. Again, basic macro-economic rules would suggest that if the ACA was no longer an option, due to the diminution of competition, there would be an upsurge COBRA eligibility when a QE occurs. Especially when considering some of the nuances of the ACA that make it a more appealing option. For example, carriers cannot deny someone coverage for a preexisting condition, or for any reason, under Obamacare. Consequently, in the absence of Obamacare, someone with a preexisting condition who experiences a QE, COBRA could be the only viable option left if private carriers decide to deny those individuals (if Obamacare is revoked). 
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On the other hand, there are some stipulations of the Affordable Care Act, that if abolished, could have an adverse effect on COBRA eligibility and thus the number of COBRA Enrollees. One such provision is that under the Affordable Care Act, is the government has instituted an individual mandate.  For people who refuse to get coverage when they’re eligible, there will be a fine assessed of $695 per adult in your family or 2.5 percent of your household’s taxable income, whichever is greater, when filling their tax returns. It will be interesting to see if there will be a quantifiable impact on whether or not some people still elect COBRA if there’s no longer an individual mandate to have health insurance under a Trump presidency.