At Kilpatrick Townsend we recognize that increasingly complex and rapidly changing health and welfare laws can seem daunting and overwhelming at times. We pride ourselves on our ability to find timely, workable and innovative solutions that permit clients to achieve their business goals.

Our team represents a number of public, private and non-profit corporations in structuring, designing and operating employer-sponsored health and welfare, cafeteria, fringe benefit and flexible compensation plans. This work involves plan design and documentation, drafting and negotiating contracts with third-party administrators, insurers and other service providers, drafting employee communications, funding and VEBA advice, claims and litigation advice, state and local compliance issues, and interaction with government agencies.

Kilpatrick Townsend’s health and welfare experience goes back four decades and includes participating in the enactment of the rules for cafeteria plans and the health plan nondiscrimination rules. Our attorneys have worked with officials at every major governmental agency, including the Treasury, IRS, DOL, HHS and CMS, and we have had an active and sophisticated health and welfare practice in Washington for more than 20 years. Perhaps our most important strength is our tradition of acting as legal counselors who bring a broad, practical perspective to technical issues.

Affordable Care Act

Our large employer clients (as well as insurers) have engaged us to advise and assist them in planning and complying with the Affordable Care Act requirements. As part of this work, we have completed and reviewed applications for the early retiree reinsurance program, restructured retiree plan benefits and “mini-med” plans to exempt such benefits from the Affordable Care Act, analyzed plan design modifications to retain grandfathered health plan status, and analyzed the application of Affordable Care Act requirements to grandfathered and non-grandfathered health plans. As part of this process, we have utilized our contacts with DOL, Treasury and HHS to provide timely client advice and understanding of how the Affordable Care Act will be implemented and interpreted by the related governmental agencies.

Health Accounts (FSAs, HRAs, and HSAs)

We led the successful effort to obtain IRS approval for an FSA “grace period,” and obtained favorable guidance from CMS that permits debit cards to be used for health FSAs without application of HIPAA’s electronic transaction rules. We have long had a leadership role with respect to flexible compensation that begins with our installation of one of the nation’s first cafeteria plans.

Retiree Health Plans

We have a long record of experience and innovation in the design, funding and operation of retiree health programs, from the early VEBA days when we developed pre-funding strategies that, unlike others, have never been challenged by the IRS, to our recent work with 401(h) and 420 accounts and VEBA funding strategies. We also have extensive experience in assisting employers with cutbacks of retiree benefits and defending them from related retiree claims. In addition, we have assisted in designing full replacement retiree health benefits for Medicare-eligible retirees.

Self-Insured Health Plans

Many of our clients have a long record as trend setters with respect to their approach to health benefits. For example, beginning with the proposed wellness program regulations in 2001, we have developed innovative ways of designing and implementing wellness programs that drive participation and lower overall health care costs without violating the many laws which impact these types of programs, including ERISA, HIPAA, ADA and GINA. We regularly assist clients with the latest design and operational considerations, including Part D, CHIPRA, GINA, MHPAEA and post-Glenn considerations. In addition, we have deepened our ability to bring practical solutions to vendor issues through select work for insurers and companies that administer self-insured plans.

HIPAA Privacy and Security Compliance

We regularly advise clients with respect to HIPAA privacy and security compliance, including the new HIPAA HITECH requirements. During the initial implementation phase of HIPAA privacy and later HIPAA security, we assisted a large group of clients with implementation and documentation by using efficiencies of scale to maximize value and reduce legal fees

Disability, Life, Severance and Other Welfare Plans

We represent many employers who have self-insured STD and LTD plans that are pre-funded through a VEBA, including employers that have multiple designs for various union and non-union groups. We also assist employers in establishing and drafting voluntary and involuntary severance plans that navigate the maze of ERISA application and the Section 409A rules.

Plan Documentation and Employee Communications

We develop holistic approaches to minimizing legal and litigation risk for our many large employer clients that includes protective plan document provisions, carefully crafted summary plan description content, supplemental employee communications and HR/benefits training. All four parts are integrated to further strengthen the bar and we draw on our experience in ERISA litigation to keep this strategy updated for the latest developments.