Compliance Recap - November 2018

Compliance Recap

November 2018

November was a busy month in the employee benefits world.

The Internal Revenue Service (IRS) extended the due date for employers to furnish Forms 1095-C or 1095-B to individuals, extended “good faith compliance efforts” relief for 2018, and issued specifications for employer-provided substitute ACA forms. The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) released two final rules on contraceptive coverage exemptions.

The IRS released indexed Patient-Centered Outcomes Research Institute (PCORI) fees and inflation-adjusted limits for various benefits. The DOL, IRS, and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2018 Form 5500 annual return/report and instructions.

For survivors of the 2018 California wildfires, the IRS provided tax relief and the DOL released employee benefit guidance. The IRS provided guidance to employers who adopt leave-based donation programs to provide charitable relief for victims of Hurricane Michael. The Treasury released its Priority Guidance Plan that lists projects that will be the focus of the Treasury and IRS for the period from July 1, 2018, through June 30, 2019.

UBA Updates

UBA released one new advisor: 2019 Annual Benefit Plan Amounts card

UBA updated or revised existing guidance:

IRS Extends Due Date to Furnish ACA Forms to Participants and Provides Good Faith Penalty Relief

The Internal Revenue Service (IRS) issued Notice 2018-94 to extend the due date to furnish 2018 Forms 1095-B and 1095-C to individuals. The due date moves from January 31, 2019, to March 4, 2019.

The IRS also extends “good faith compliance efforts” relief for 2018. As in prior years, this relief is applied only to incorrect or incomplete information reported in good faith on a statement or return. The relief does not apply to a failure to timely furnish a statement or file a return.

Read more about the notice.

IRS Issues Specifications for Employer-Provided Substitute ACA Forms

The Internal Revenue Service (IRS) issued Publication 5223 General Rules and Specifications for Affordable Care Act Substitute Forms 1095-A, 1094-B, 1095-B, 1094-C, and 1095-C that describes how employers may prepare substitute forms to furnish ACA reporting information to individuals and the IRS.

Treasury, DOL, and HHS Release Two Final Rules on Contraceptive Coverage Exemptions

The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, Departments) released two final rules on contraceptive coverage exemptions. These rules finalize the Departments’ interim final rules that were published on October 13, 2017. HHS also issued a press release and fact sheet on these final rules.

The first final rule provides an exemption from the contraceptive coverage mandate to entities (including certain employers) and individuals that object to services covered by the mandate on the basis of sincerely held religious beliefs.

The second final rule provides an exemption from the contraceptive coverage mandate to nonprofit organizations, small businesses, and individuals that object to services covered by the mandate on the basis of sincerely held moral convictions.

The final rules will be effective on January 14, 2019.

Read more about the final rules.

IRS Releases Indexed PCORI Fee

The Patient Protection and Affordable Care Act (ACA) imposes a fee on insurers of certain fully insured plans and plan sponsors of certain self-funded plans to help fund the Patient-Centered Outcomes Research Institute (PCORI). The PCORI fee is due by July 31 of the year following the calendar year in which the plan or policy year ends.

The Internal Revenue Service issued Notice 2018-85 to announce the PCORI fee of $2.45 for policy years and plan years that end on or after October 1, 2018, and before October 1, 2019.

Plan/Policy Year

Last Year Fee Is
Due (2.45,
indexed/person)

Nov. 1, 2017 – Oct. 31, 2018

July 31, 2019

Dec. 1, 2017 – Nov. 30, 2018

July 31, 2019

Jan. 1, 2018 – Dec. 31, 2018

July 31, 2019

Feb. 1, 2018 – Jan. 31, 2019

July 31, 2020

March 1, 2018 – Feb. 28, 2019

July 31, 2020

April 1, 2018 – March 31, 2019

July 31, 2020

May 1, 2018 – April 30, 2019

July 31, 2020

June 1, 2018 – May 31, 2019

July 31, 2020

July 1, 2018 – June 30, 2019

July 31, 2020

Aug. 1, 2018 – July 31, 2019

July 31, 2020

Sept. 1, 2018 – Aug 31, 2019

July 31, 2020

Oct 1, 2018 – Sept. 30, 2019

July 31, 2020

Read more about the PCORI fee.

IRS Releases 2019 Inflation-Adjusted Limits

The Internal Revenue Service (IRS) released its inflation-adjusted limits for various benefits. For example, the maximum contribution limit to health flexible spending arrangements (FSAs) will be $2,700 in 2019. Also, the maximum reimbursement limit in 2019 for Qualified Small Employer Health Reimbursement Arrangements will be $5,150 for single coverage and $10,450 for family coverage.

Read more about the 2019 limits.

Advance Informational Copies of 2018 Form 5500 Annual Return/Report

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2018 Form 5500 annual return/report and related instructions.

Here are some of the changes that the instructions highlight:

  • Principal Business Activity Codes. Principal Business Activity Codes have been updated to reflect updates to the North American Industry Classification System (NAICS). For Line 2d, a plan administrator would enter the six-digit Principal Business Activity Code that best describes the nature of the plan sponsor’s business from the list of codes on pages 78-80 of the Form 5500 Instructions.
  • Administrative Penalties. The instructions have been updated to reflect that the new maximum penalty for a plan administrator who fails or refuses to file a complete or accurate Form 5500 report has been increased to up to $2,140 a day for penalties assessed after January 2, 2018, whose associated violations occurred after November 2, 2015.Because the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 requires the penalty amount to be adjusted annually after the Form 5500 and its schedules, attachments, and instructions are published for filing, be sure to check for any possible required inflation adjustments of the maximum penalty amount that are published in the Federal Register after the instructions have been posted.
  • Form 5500-Participant Count. The instructions for Lines 5 and 6 have been enhanced to make clearer that welfare plans complete only Line 5 and elements 6a(1), 6a(2), 6b, 6c, and 6d in Line 6.

Be aware that the advance copies of the 2018 Form 5500 are for informational purposes only and cannot be used to file a 2018 Form 5500 annual return/report.

ERISA imposes the Form 5500 reporting obligation on the plan administrator. Form 5500 is normally due on the last day of the seventh month after the close of the plan year. For example, a plan administrator would file Form 5500 by July 31, 2019, for a 2018 calendar year plan.

Tax Relief for Victims of November Wildfire in California

Victims of the wildfires that took place beginning on November 8, 2018, in California may qualify for tax relief from the Internal Revenue Service (IRS). The President declared that a major disaster exists in California. The Federal Emergency Management Agency’s major declaration permits the IRS to postpone deadlines for taxpayers who have a business in certain counties within the disaster area.

The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 866-562-5227 to request this tax relief.

DOL Releases Employee Benefit Guidance and Relief for 2018 California Wildfire Survivors

The Department of Labor (DOL) released its FAQs for Participants and Beneficiaries Following the 2018 California Wildfires to answer health benefit and retirement benefit questions.

The FAQs cover topics including:

  • Whether an employee will still be covered by an employer-sponsored group health plan if the worksite closed
  • Potential options such as special enrollment rights, COBRA continuation coverage, individual health coverage, and health coverage through a government program in the event that an employee loses health coverage

The DOL also released its Fact Sheet: Guidance and Relief for Employee Benefit Plans Impacted by the 2018 California Wildfires to recognize that employers may encounter problems due to the wildfires. The DOL advises plan fiduciaries to make reasonable accommodations to prevent workers’ loss of benefits and to take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.

The DOL also acknowledged that there may be instances when full and timely compliance by group health plans may not be possible due to physical disruption to a plan’s principal place of business. The DOL’s enforcement approach will emphasize compliance assistance, including grace periods and other relief where appropriate.

IRS Provides Guidance on Leave-Based Donation Programs’ Tax Treatment

The IRS issued Notice 2018-89 to guide employers who adopt leave-based donation programs to provide charitable relief for victims of Hurricane Michael. These leave-based donation programs allow employees to forgo vacation, sick, or personal leave in exchange for cash payments that the employer will make to charitable organizations described under Internal Revenue Code Section 170(c).

The employer’s cash payments will not constitute gross income or wages of the employees if paid before January 1, 2020, to the Section 170(c) charitable organizations for the relief of victims of Hurricane Michael. Employers do not need to include these payments in Box 1, 3, or 5 of an employee’s Form W-2.

Treasury Releases 2018-19 Priority Guidance Plan

The Department of the Treasury (Treasury) released its 2018-2019 Priority Guidance Plan (Plan) that describes the priorities for the Treasury and the Internal Revenue Service (IRS) for the period from July 1, 2018, through June 30, 2019. The Plan contains a list of projects that will be the focus of the Treasury and IRS, including:

  • Guidance on employer shared responsibility provisions
  • Regulations regarding the excise tax on high cost employer-provided coverage (also known as the “Cadillac tax”).

Question of the Month

Q. Under the ACA, which employers must report information on Form W-2 and what information must be reported?

A. The ACA requires employers to report the cost of coverage under an employer-sponsored group health plan. Reporting the cost of health care coverage on Form W-2 does not mean that the coverage is taxable.

Employers that provide “applicable employer-sponsored coverage” under a group health plan are subject to the reporting requirement. This includes businesses, tax-exempt organizations, and federal, state and local government entities (except with respect to plans maintained primarily for members of the military and their families). Federally recognized Indian tribal governments are not subject to this requirement.

Employers that are subject to this requirement should report the value of the health care coverage in Box 12 of Form W-2, with Code DD to identify the amount. There is no reporting on Form W-3 of the total of these amounts for all the employer’s employees.

In general, the amount reported should include both the portion paid by the employer and the portion paid by the employee. Please see the chart below from the IRS’ webpage and its questions and answers for more information.

The chart below illustrates the types of coverage that employers must report on Form W-2. Certain items are listed as “optional” based on transition relief provided by Notice 2012-9 (restating and clarifying Notice 2011-28). Future guidance may revise reporting requirements but will not be applicable until the tax year beginning at least six months after the date that the IRS issues its guidance.

Form W-2 Reporting of Employer-Sponsored Health Coverage

Form W-2, Box 12, Code DD
Coverage Type

Report

Do Not 
Report

Optional

Major medical

X

Dental or vision plan not integrated into another medical or health plan

X

Dental or vision plan which gives the choice of declining or electing and paying an additional premium

X

Health flexible spending arrangement (FSA) funded solely by salary-reduction amounts

X

Health FSA value for the plan year in excess of employee’s cafeteria plan salary reductions for all qualified benefits

X

Health reimbursement arrangement (HRA) contributions

X

Health savings account (HSA) contributions (employer or employee)

X

Archer Medical SAvings Account (Archer MSA) contributions (employer or employee)

X

Hospital indemnity or specified illness (insured or self-funded), paid on after-tax basis

X

Hospital indemnity or specified illness (insured or self-funded), paid through salary reduction (pre-tax) or by employer

X

Employee assistance plan (EAP) providing applicable employer-sponsored healthcare coverage Required if employer charges a COBRA premium Optional if employer does not charge a COBRA premium
On-site medical clinics providing applicable employer-sponsored healthcare coverage Required if employer charges a COBRA premium Optional if employer does not charge a COBRA premium
Wellness programs providing applicable employer-sponsored healthcare coverage Required if employer charges a COBRA premium Optional if employer does not charge a COBRA premium
Multi-employer plans

X

Domestic partner coverage included in gross income

X

Governmental plans providing coverage primarily for members of the military and their families

X

Federally recognized Indian tribal government plans and plans of tribally charted corporations wholly owned by a federally recognized Indian tribal government

X

Self-funded plans not subject to federal COBRA

X

Accident or disability income

X

Long-term care

X

Liability insurance

X

Supplemental liability insurance

X

Workers’ compensation

X

Automobile medical payment insurance

X

Credit-only insurance

X

Excess reimbursement to highly compensated individual, included in gross income

X

Payment/reimbursement of health insurance premiums for 2% shareholder-employee, included in gross income

X

Other situations
Employers required to file fewer than 250 Forms W-2 for the preceding calendar year (determined without application of any entity aggregation rules for related employers)

X

Forms W-2 furnished to employees who terminate before the end of a calendar year and rquest, in writing, a Form W-2 before the end of that year

X

Forms W-2 provided by third-party sick-pay provider to employees of other employers

X

11/30/2018


Compliance Recap - October 2018

October was a busy month in the employee benefits world.

The Internal Revenue Service (IRS) released final forms and instructions for 2018 ACA reporting. The Department of Health and Human Services (HHS) released inflation-adjusted civil monetary penalty amounts. The Treasury, the Department of Labor (DOL), and HHS released a proposed rule on health reimbursement arrangements. The IRS released a proposed rule regarding penalties for failure to file correct information returns or furnish correct payee statements.

Congress and the President enacted a law to prohibit pharmacy gag clauses. The IRS released an information letter regarding dependent care assistance plan funds’ forfeiture. The IRS provided tax relief to victims of Hurricane Michael in Florida. The DOL released FAQs for plan participants affected by Hurricanes Florence and Michael. HHS released a proposed rule to require drug pricing transparency. The DOL and HHS released their regulatory agendas.

UBA Updates

UBA released three new advisors:

UBA updated or revised existing guidance:

IRS Releases Final Forms and Instructions for 2018 ACA Reporting

The Internal Revenue Service (IRS) released instructions for both the Forms 1094-B and 1095-B and the Forms 1094-C and 1095-C and Forms 1094-B, 1095-B, 1094-C, and 1095-C. There are no substantive changes in the forms or instructions between 2017 and 2018, beyond the further removal of now-expired forms of transition relief. There is a minor formatting change to Forms 1095-B and 1095-C for 2018. There are dividers for the entry of an individual’s first name, middle name, and last name.

Reporting will be due early in 2019, based on coverage in 2018. For calendar year 2018, Forms 1094-C, 1095-C, 1094-B, and 1095-B must be filed by February 28, 2019, or April 1, 2019, if filing electronically. Statements to employees must be furnished by January 31, 2019.

All reporting will be for the 2018 calendar year, even for non-calendar year plans.

Read more about the final forms and instructions.

HHS Releases Inflation-Adjusted Federal Civil Penalty Amounts

The Department of Health and Human Services (HHS) issued its Annual Civil Monetary Penalties Inflation Adjustment. Here are some of the adjustments:

  • Medicare Secondary Payer:
    • For failure to provide information identifying situations where the group health plan is primary, the maximum penalty increases from $1,157 to $1,181 per failure.
    • For an employer who offers incentives to a Medicare-eligible individual to not enroll in employer sponsored group health that would otherwise be primary, the maximum penalty increases from $9,054 to $9,239.
    • For willful or repeated failure to provide requested information regarding group health plan coverage, the maximum penalty increases from $1,474 to $1,504.
  • Summary of Benefits and Coverage: For failure to provide, the maximum penalty increases from $1,105 to $1,128 per failure.
  • Health Insurance Portability and Accountability Act (HIPAA):
Tier Penalty
1. Did Not Know:

Covered entity or business associate did not know (and by exercising reasonable diligence would not have known) that it violated the provision of the Administrative Simplification regulations.

$114 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
2. Reasonable Cause:

The violation was due to reasonable cause and not to willful neglect.

$1,141 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
3. Willful Neglect – Corrected:

The violation was due to willful neglect, but the violation is corrected during the 30-day period beginning on the first date the liable person knew (or by exercising reasonable diligence would have known) of the failure to comply.

$11,410 to $57,051 for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.
4. Willful Neglect – Not Corrected:

The violation was due to willful neglect and the violation is not corrected as described in Tier 3.

$57,051 minimum for each violation, up to a maximum of $1,711,533 for identical provisions during a calendar year.

The adjustments are effective for penalties assessed on or after October 11, 2018, for violations occurring after November 2, 2015.

Treasury, DOL, and HHS Releases Proposed Rule on Health Reimbursement Arrangements

The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, the Departments) released their proposed rule regarding health reimbursement arrangements (HRAs) and other account-based group health plans. The DOL also issued a news release and fact sheet on the proposed rule.

The proposed rule’s goal is to expand the flexibility and use of HRAs to provide individuals with additional options to obtain quality, affordable healthcare. According to the Departments, these changes will facilitate a more efficient healthcare system by increasing employees’ consumer choice and promoting healthcare market competition by adding employer options.

To do so, the proposed rules would expand the use of HRAs by:

  • Removing the current prohibition against integrating an HRA with individual health insurance coverage (individual coverage)
  • Expanding the definition of limited excepted benefits to recognize certain HRAs as limited excepted benefits if certain conditions are met (excepted benefit HRA)
  • Providing premium tax credit (PTC) eligibility rules for people who are offered an HRA integrated with individual coverage
  • Assuring HRA and Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) plan sponsors that reimbursement of individual coverage by the HRA or QSEHRA does not become part of an ERISA plan when certain conditions are met
  • Changing individual market special enrollment periods for individuals who gain access to HRAs integrated with individual coverage or who are provided QSEHRAs

Public comments are due by December 28, 2018. If the proposed rule is finalized, it will be effective for plan years beginning on or after January 1, 2020.

Read more about the proposed rule.

IRS Releases Proposed Rule Regarding Penalties for Failure to File Correct Information Returns or Furnish Correct Payee Statements

The Internal Revenue Service (IRS) released its proposed rule relating to penalties for failure to file correct information returns or furnish correct payee statements. The proposed rule contains safe harbor exceptions that apply in circumstances when an information return or payee statement is otherwise correct, is timely filed or furnished, and includes a de minimis dollar amount error.

A dollar amount error is a de minimis error if the difference between any single amount in error and the correct amount is not more than $100, or, if the difference relates to an amount of tax withheld, it is not more than $25.

Generally, when the safe harbor exception applies to an information return or payee statement and the return or statement is otherwise correctly and timely filed or furnished, no correction is required and, for purposes of Sections 6721 or 6722, the document is treated as having been filed or furnished with all of the correct required information.

The proposed safe harbor exception would apply to information reported on the Forms 1094/1095, Form W-2, and Form 1099-R.

Public comments are due by December 17, 2018.

Congress and the President Enact Law Prohibiting Pharmacy Gag Clauses

Congress and the President enacted the Patient Right to Know Drug Prices Act (Act) that prohibits any restriction on a pharmacy’s ability to inform customers about certain prescription drug costs.

The Act prohibits a group health plan (or a health insurance issuer offering group or individual health insurance coverage, or a pharmacy benefits management service working with a health plan or health insurance issuer) from taking the following actions against a pharmacy that dispenses a prescription drug to an enrollee in the plan or coverage:

  • restricting, directly or indirectly, the pharmacy from informing an enrollee of any difference between the enrollee’s out-of-pocket prescription drug cost under the plan or coverage and the amount that the enrollee would pay for the prescription drug without using any health plan or insurance coverage, or
  • penalizing the pharmacy for informing an enrollee of any difference between the enrollee’s out-of-pocket prescription drug cost under the plan or coverage and the amount that the enrollee would pay for the prescription drug without using any health plan or insurance coverage.

IRS Releases Information Letter Regarding DCAP Fund Forfeiture

The Internal Revenue Service released Information Letter 2018-0027 (Letter) to confirm that a participant’s dependent care assistance plan (DCAP) funds can be forfeited if a participant does not timely submit documentation of dependent care expenses. The Letter explains that, although the Treasury’s regulations do not specify a length of time for submitting expenses, the cafeteria plan document should specify the deadline for submitting expenses.

The Letter also explains that the plan administrator should apply the deadline to all participants on a uniform and consistent basis. A cafeteria plan must operate according to its written plan or the employees’ elections between taxable and nontaxable benefits are includible in the employees’ income.

Tax Relief for Victims of Hurricane Michael in Florida

Victims of Hurricane Michael that took place beginning on October 7, 2018, in Florida may qualify for tax relief from the Internal Revenue Service (IRS). The President declared that a major disaster exists in Florida. The Federal Emergency Management Agency’s major declaration permits the IRS to postpone deadlines for taxpayers who have a business in certain counties within the disaster area.

The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 866-562-5227 to request this tax relief.

Last month, the IRS extended deadlines for victims of Hurricane Florence in certain counties of North Carolina, South Carolina, and Virginia.

DOL Releases FAQs for Plan Participants Affected by Hurricanes Florence and Michael

The Department of Labor (DOL) released its FAQs for Participants and Beneficiaries Following Hurricanes Florence and Michael to answer health benefit and retirement benefit questions. The FAQs cover topics including:

  • Whether an employee will still be covered by an employer-sponsored group health plan if the worksite closed
  • Potential options such as special enrollment rights, COBRA continuation coverage, individual health coverage, and health coverage through a government program in the event that an employee loses health coverage

HHS Releases Proposed Rule to Require Drug Pricing Transparency

The Department of Health and Human Services (HHS) released its proposed rule that would require direct-to-consumer television advertisements of prescription drugs and biological products to include the Wholesale Acquisition Cost (WAC or list price) of that prescription drug or biological product.

The proposed rule would require the following written statement to appear at the end of an advertisement, against a contrasting background, for sufficient duration, and in font that allows the statement to be easily read:

‘‘The list price for a [30-day supply of] [typical course of treatment with] [name of prescription drug or biological product] is [insert list price]. If you have health insurance that covers drugs, your cost may be different.’’

The advertising requirement would only apply to prescription drugs and biological products that cost $35 or more per month and for which reimbursement is available, directly or indirectly, by Medicare or Medicaid.

To enforce the advertising requirement, the proposed rule would require HHS to maintain a public list that identifies prescription drugs and biological products that are advertised in violation with the rule. HHS would post this list on the Centers for Medicare & Medicaid Services (CMS) website at least annually.

Public comments are due by December 17, 2018.

DOL and HHS Release Their Regulatory Agendas

The Department of Labor (DOL) released its regulatory agenda and the Department of Health and Human Services (HHS) released its regulatory agenda. Each agenda provides a list of regulations that the agency is currently working on, including rulemaking stage, to help employers anticipate potential change in certain areas of employee benefits.

Question of the Month

Q: What is the status of the Form 5500 proposed rule, that if adopted as a final rule, would generally apply for plan years beginning on or after January 1, 2019?

A: Although the Department of Labor (DOL), Internal Revenue Service (IRS), and Pension Benefit Guaranty Corporation (PBGC) proposed Form 5500 filing changes in 2016, the agencies have not released any final rules regarding Form 5500 filing.

At the American Bar Association’s ERISA Basics National Institute in October 2018, a DOL representative unofficially said that, due to President Trump’s Executive Order, the DOL has some other higher priority items that the DOL needs to address before it can address the Form 5500 proposed regulations. The DOL representative also unofficially said that it’s likely that new proposed Form 5500 regulations would be issued to allow for another round of public comment. However, the DOL representative didn’t have a timeline on when the additional proposed regulations might be released.

**This information is general and is provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.


IRS updates required tax notice to address plan loan offsets

Recently, the IRS updated the model notice that must be sent out to all plan participants. This model notice modifies the prior model notices that were published four years ago in 2014. Continue reading to learn more.


The IRS has updated the model notice that is required to be provided to participants before they receive an “eligible rollover distribution” from a qualified 401(a) plan, a 403(b) tax-sheltered annuity, or a governmental 457(b) plan.

Notice 2018-74, which was published on September 18, 2018, modifies the prior safe-harbor explanations (model notices) that were published in 2014. Like the 2014 guidance, the 2018 Notice — sometimes referred to as the “402(f) Notice” or “Special Tax Notice” — includes two separate “model” notices that are deemed to satisfy the requirements of Code Section 402(f): one for distributions that are not from a designated Roth account, and one for distributions from a designated Roth account. The 2018 Notice also includes an appendix that can be used to modify (rather than replace) existing safe-harbor 402(f) notices.

The model notices were updated to take into consideration certain legislation that has been enacted, and other IRS guidance that has been published, since 2014. They include:

  • changes related to qualified plan loan offsets under the Tax Cuts and Jobs Act of 2017;
  • changes in the rules for phased retirement under the Moving Ahead for Progress in the 21st Century Act (“MAP-21”);
  • changes in the exceptions to the 10% penalty for early distributions from governmental plans under the Defending Public Safety Employees’ Retirement Act; and
  • IRS guidance (in Revenue Procedure 2016-47) regarding a self-certification procedure for waivers of the 60-day rollover deadline.

The model notices also make some “clarifying” changes to the 2014 notices, including:

  • clarification that the 10% additional tax on early distributions applies only to amounts includible in income;
  • an explanation of how the rollover rules apply to governmental 457(b) plans that include designated Roth accounts;
  • clarification that certain exceptions to the 10% tax on early distributions do not apply to IRAs; and
  • recognizing that taxpayers affected by federally declared disasters and other events may have an extended deadline for making rollovers.

The updated model 402(f) notices should be particularly useful in communicating to participants the extension, under the Tax Cuts and Jobs Act, of the time to roll over a “qualified plan loan offset amount.”

Inside the plan load offset

By way of background, Notice 2018-74 reminds us that distribution of a “plan loan offset amount” is an eligible rollover distribution, and that a “plan loan offset” occurs when, under the plan terms governing a plan loan, the participant’s accrued benefit is reduced, or offset, in order to repay the loan. According to the Notice, this can occur when, for example, the terms of the plan loan require that, in the event of an employee’s termination of employment or request for a distribution, the loan is to be repaid immediately or treated as in default.

The Notice also indicates that a plan loan offset may occur when, under the terms of the plan loan, the loan is canceled, accelerated, or treated as if it were in default (for example, when the plan treats a loan as in default upon an employee’s termination of employment or within a specified period thereafter). The Notice also reminds us, however, that a plan loan offset cannot occur prior to a distributable event.

This is helpful guidance for distinguishing between a “deemed distribution” of a defaulted loan (a taxable event which is not eligible for rollover) and a “plan loan offset amount,” which is an eligible rollover distribution.

Generally, if a default occurs before the participant has a distributable event (such as termination of employment, or attainment of age 59½), and the default is not cured by the last day of the cure period, it must be treated as a “deemed distribution” and reported on Form 1099. Such defaulted amounts are not eligible for rollover.

However, if the default occurs at or after a distribution event, and the plan terms require that the participant’s account be offset to pay off the loan, then the reduction of the account may be treated as a plan loan offset, which is an eligible rollover distribution.

Notice 2018-74 (and the new model notices) also reflect that, prior to the Tax Cuts and Jobs Act of 2017, participants who incurred a “plan loan offset” only had 60 days to “roll” an equivalent amount of money to an IRA or another employer plan (to avoid the offset being treated as a taxable distribution). However, for plan loan offsets that occur after December 31, 2017, if the plan loan offset is a “qualified plan loan offset” (meaning it occurs in connection with termination of employment or termination of the plan), then the participant has significantly more time (until the extended due date of the participant’s tax return for the year of the offset) in which to roll an amount equal to the loan offset amount to an IRA or another employer plan.

SOURCE: Browning, R (4 October 2018) "IRS updates required tax notice to address plan loan offsets" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/irs-updates-required-tax-notice-to-address-plan-loan-offsets?brief=00000152-146e-d1cc-a5fa-7cff8fee0000


OSHA Proposes Change to Electronic Record-Keeping Rule

On July 30, OSHA issued a change that would eliminate the need for employers with 250 or more employees to electronically submit certain data. Continue reading to learn more.


Worksites with 250 or more employees would not be required to electronically submit certain data to the Occupational Safety and Health Administration (OSHA) under a proposal to roll back an Obama-era rule.

The Improve Tracking of Workplace Injuries and Illnesses rule requires employers that are covered by OSHA's record-keeping regulations to electronically submit certain reports to the federal government. Certain establishments with 20-249 employees are required to submit only OSHA Form 300A each year—300A is a summary of workplace injuries and illnesses that many employers are required to post in the workplace from Feb. 1 until April 30 of each year.

In addition to Form 300A, larger establishments (those with 250 or more employees) were supposed to begin submitting data from Form 300 (the injury and illness log) and Form 301 (incident reports for each injury or illness) in July. However, in May, OSHA announced that it would not be accepting that information in light of anticipated changes to the rule.

As expected, on July 30, OSHA issued a Notice of Proposed Rulemaking (NPRM) to eliminate the requirement for large establishments to electronically submit information from Forms 300 and 301.

"OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable" under the Freedom of Information Act, the agency said.

The electronic record-keeping rule has faced considerable opposition from the business community, in part because some of the data submitted will be made available to the public.

The proposed rule would also require employers to submit their employer identification numbers (EINs) when e-filing Form 300A. "Collecting EINs would increase the likelihood that the Bureau of Labor Statistics would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness," the agency said.

Anti-Retaliation Rules Remain

OSHA's electronic record-keeping rule also contains controversial anti-retaliation provisions. These provisions, which went into effect in December 2016, give OSHA broad discretion to cite employers for having policies or practices that could discourage employees from reporting workplace injuries and illnesses. For example, the provisions place limitations on safety incentive programs and drug-testing policies. OSHA has said that employers should limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use.

Prior to the new rules, many employers administered post-accident drug tests to all workers who were involved in an incident. The anti-retaliation provisions create another layer of ambiguity for employers, because they have to justify why they tested one person and not another, which may lead to race, gender and other discrimination claims, said Mark Kittaka, an attorney with Barnes & Thornburg in Fort Wayne, Ind., and Columbus, Ohio.

OSHA has not announced any plans to revise the electronic record-keeping rule any further. Many employer-side stakeholders were disappointed that OSHA made no effort to revise the anti-retaliation provisions, said John Martin, an attorney with Ogletree Deakins in Washington, D.C.

There are still undecided lawsuits in federal courts that challenged these provisions back when they were first issued but have been put on hold while revisions were pending, Martin noted. OSHA's proposed revision clearly did not resolve all of the challengers' concerns, so they are now deciding whether to ask the courts to resume litigation, he said.

What Now?

Employers should keep in mind that OSHA's electronic record-keeping rule refers to "establishment" size, not overall employer size, Kittaka said. An establishment is a single physical location where business is conducted or where services or industrial operations are performed, according to OSHA.

Large employers still need to electronically submit 300A summaries for each work establishment—office, plant, facility, yard, etc.—with 250 or more employees, Martin said. If they have work establishments with 20-249 employees and they are covered by OSHA's high-hazard establishment list, then they must also submit 300A summaries for those smaller establishments.

The proposed rule is open for public comment until Sept. 28. "OSHA made clear in the proposed rule that the agency was only seeking comments on the electronic submission and EIN" proposals, said Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C.

SOURCE: Nagele-Piazza, L (14 August 2018) "OSHA Proposes Change to Electronic Record-Keeping Rule" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-proposes-change-to-electronic-record-keeping-rule.aspx/


Compliance Recap July 2018

July was a quiet month in the employee benefits world. The Internal Revenue Service (IRS) released draft Forms 1094-B, 1095-B, 1094-C, and 1095-C. The IRS also released an information letter on the employer shared responsibility provisions.

UBA Updates

UBA released two new advisors:

UBA updated existing guidance:

IRS Releases Draft Forms 1094-B, 1095-B, 1094-C, and 1095-C

The Internal Revenue Service (IRS) released draft Forms 1094-B, 1095-B, 1094-C, and 1095-C. Employers will use the final version of these forms to report on offers of health coverage to full-time employees and their family members, and enrollment in health coverage by employees and their family members (for employers that sponsor self-insured health plans).

There are no substantive changes to draft Forms 1094-B, 1095-B, or 1094-C for 2018. There is a minor formatting change to draft Form 1095-C for 2018. There are dividers for the entry of an individual’s first name, middle name, and last name.

Employers will have more information about any additional changes to these forms when the IRS releases its draft instructions for these forms.

IRS Releases Information Letter on Employer Shared Responsibility

The Internal Revenue Service (IRS) released its Information Letter 2018-0013 to reiterate how the employer shared responsibility provisions would apply to an applicable large employer. Specifically, the IRS explained how the Service Contract Act (SCA) interacts with the Patient Protection and Affordable Care Act (ACA).

As background, the SCA requires workers who are employed on certain federal contracts to be paid prevailing wages and fringe benefits. An employer generally can satisfy its fringe benefit obligation by providing the cash equivalent of benefits or a combination of cash and benefits. Alternatively, an employer may permit employees to choose among various benefits, or various benefits and cash. An employer may choose to provide fringe benefits under the SCA by offering an employee the option to enroll in health coverage provided by the employer (including an option to decline that coverage). If the employee declines the coverage, that employer would then generally be required by the SCA to provide the employee with cash or other benefits of an equivalent value.

This Information Letter refers to IRS Notice 2015-87 which describes how the ACA and the SCA may be coordinated for plan years beginning before January 1, 2017, and until further guidance is issued and applicable. Notice 2015-87 clarifies that, for employees under the SCA, the choice of a cash-out payment will generally not require an employer to pay a greater share of the cost of the health coverage for the coverage to be considered affordable.

Question of the Month

  1. What if a plan sponsor fails to file or pay the PCORI fee?
  2. Although the PCORI statute and its regulations do not include a specific penalty for failure to report or pay the PCORI fee, the plan sponsor may be subject to penaltiesfor failure to file a tax return because the PCORI fee is an excise tax.

The plan sponsor should consult with its attorney on how to proceed with a late filing or late payment of the PCORI fee. The PCORI regulations note that the penalties related to late filing of Form 720 or late payment of the fee may be waived or abated if the plan sponsor has reasonable cause and the failure was not due to willful neglect.

If a plan sponsor already filed Form 720 (for example, for a different excise tax), then the plan sponsor can make a correction to a previously filed Form 720 by using Form 720X.


Compliance Recap June 2018

June was a relatively quiet month in the employee benefits world.

The U.S. Department of Labor issued final regulations regarding association health plans. The U.S. Department of Justice filed a response in ongoing litigation regarding the constitutionality of the Patient Protection and Affordable Care Act. The Centers for Medicare and Medicaid Services released a form that certain plan sponsors will use for reporting limited wraparound coverage.

UBA Updates

UBA released two new advisors:

UBA updated existing guidance:

DOL Issues Final Regulations Regarding Association Health Plans

On June 19, 2018, the U.S. Department of Labor (DOL) published Frequently Asked Questions About Association Health Plans (AHPs) and issued a final rule that broadens the definition of “employer” and the provisions under which an employer group or association may be treated as an “employer” sponsor of a single multiple-employer employee welfare benefit plan and group health plan under Title I of the Employee Retirement Income Security Act (ERISA).

The final rule is intended to facilitate adoption and administration of AHPs and expand health coverage access to employees of small employers and certain self-employed individuals.

The final rule will be effective on August 20, 2018. The final rule will apply to fully-insured AHPs on September 1, 2018, to existing self-insured AHPs on January 1, 2019, and to new self-insured AHPs formed under this final rule on April 1, 2019.

Read more about the final rule.

Status of Court Case Challenging ACA Constitutionality

In June 2018, the U.S. Department of Justice (DOJ) filed a response in ongoing litigation regarding the individual mandate and the Patient Protection and Affordable Care Act (ACA).

As background, earlier this year, twenty states filed a lawsuit asking the U.S. District Court for the Northern District of Texas to strike down the ACA entirely. The lawsuit came after the U.S. Congress passed the Tax Cuts and Jobs Act in December 2017 that reduced the individual mandate penalty to $0, starting in 2019.

The DOJ argues that the individual mandate is unconstitutional without the penalty. The DOJ also argues that because the guaranteed issue and community rating provisions are inseverable from the individual mandate, the guaranteed issue and community rating provisions are also unconstitutional.

Further, the DOJ argues that because the individual mandate penalty of $0 starts in 2019, the district court should not immediately strike the individual mandate, guaranteed issue, and community rating portions of the ACA. Instead, the DOJ asks the district court to declare that the individual mandate, guaranteed issue, and community rating provisions will be unconstitutional as of January 1, 2019.

It’s too early to determine whether the plaintiffs, the DOJ, or the other defendants will prevail in their arguments. Even if the district court makes a decision in the next few weeks, its decision will likely be appealed.

Read more about this case.

CMS Releases Form for Reporting Wraparound Excepted Benefits

Under a 2015 final rule by the Internal Revenue Service, U.S. Department of Labor, and U.S. Department of Health and Human Services, certain employers may offer limited wraparound coverage under one of two narrow pilot programs.

These wraparound benefits are considered an excepted benefit and are generally exempt from certain requirements of federal laws, including ERISA, the Internal Revenue Code, and parts of the Patient Protection and Affordable Care Act.

Under the final rule, plan sponsors who offer limited wraparound coverage have reporting requirements. In December 2017, the Centers for Medicare and Medicaid Services (CMS) issued a notice for comments on a proposed reporting form.

On June 25, 2018, the CMS published its Reporting Form for Plan Sponsors Offering Limited Wraparound Coverage. A plan sponsor of limited wraparound coverage must file the form once, within 60 days of the form’s publication (by August 24, 2018), or 60 days after the first day of the first plan year that limited wraparound coverage is first offered.

Read more about limited wraparound coverage.

Question of the Month

  1. Who must pay the Patient-Centered Outcomes Research Institute (PCORI) fee and when is the fee due?
  2. The fee must be determined and paid by:
  • The insurer for fully insured plans (although the fee likely will be passed on to the plan)
  • The plan sponsor of self-funded plans, including HRAs
    • The plan’s TPA may assist with the calculation, but the plan sponsor must file IRS Form 720 and pay the applicable fee
    • If multiple employers participate in the plan, each must file separately unless the plan document designates one as the plan sponsor

The fee is due by July 31 of the year following the calendar year in which the plan/policy year ends. For example:

Plan/Policy Year Year Fee Is Due ($2.26, indexed/ person) Plan/Policy Year  Year Fee Is Due ($2.39, indexed/
person)
Nov. 1, 2015 - Oct. 31, 2016 July 31, 2017 Nov. 1, 2016 - Oct. 31, 2017 July 31, 2018
Dec. 1, 2015 - Nov. 30, 2016 July 31, 2017 Dec. 1, 2016 - Nov. 30, 2017 July 31, 2018
Jan. 1, 2016 - Dec. 31, 2016 July 31, 2017 Jan. 1, 2017 - Dec. 31, 2017 July 31, 2018
Feb. 1, 2016 - Jan. 31, 2017 July 31, 2018 Feb. 1, 2017 - Jan. 31, 2018 July 31, 2019
March 1, 2016 - Feb. 28, 2017 July 31, 2018 March 1, 2017 - Feb. 28, 2018 July 31, 2019
April 1, 2016 - March 31, 2017 July 31, 2018 April 1, 2017 - March 31, 2018 July 31, 2019
May 1, 2016 - April 30, 2017 July 31, 2018 May 1, 2017 - April 30, 2018 July 31, 2019
June 1, 2016 - May 31, 2017 July 31, 2018 June 1, 2017 - May 31, 2018 July 31, 2019
July 1, 2016 - June 30, 2017 July 31, 2018 July 1, 2017 - June 30, 2018 July 31, 2019
Aug. 1, 2016 - July 31, 2017 July 31, 2018 Aug. 1, 2017 - July 31, 2018 July 31, 2019
Sept. 1, 2016 - Aug. 31, 2017 July 31, 2018 Sept. 1, 2017 - Aug. 31, 2018 July 31, 2019
Oct. 1, 2016 - Sept. 30, 2017 July 31, 2018 Oct. 1, 2017 - Sept. 30, 2018 July 31, 2019

7/3/2018

Download the PDF here.


Compliance Recap May 2018

May was a relatively busy month in the employee benefits world.

The Internal Revenue Service (IRS) released the indexed threshold that employers will use in 2019 to determine coverage affordability. The IRS also issued inflation adjusted amounts that will apply to health savings accounts for 2019.

The IRS released guidance on its play-or-pay penalty response acknowledgement letters. The IRS published a proposed rule that would expand mandatory electronic filing of information returns. The IRS also released a tax reform tip, frequently asked questions about the family and medical leave credit, and a fact sheet on determining whether an employer is a large employer.

The Equal Employment Opportunity Commission filed a status report in a wellness program court case. The U.S. Department of the Treasury released its updated priority guidance plan. The U.S. Department of Health and Human Services released a blueprint for lowering drug prices and reducing out-of-pocket costs. The U.S. Securities and Exchange Commission issued a bulletin on health savings accounts.

UBA Updates

UBA released four new advisors:

  • Proposed FAQs About Mental Health and Substance Use Disorder Parity
  • IRS Changes HSA Limit for 2018
  • Understanding Your IRS Play-or-Pay Assessment Letter
  • IRS Issues Proposed Rule to Expand Mandatory Electronic Filing

UBA updated existing guidance:

  • 2018 Annual Benefit Plan Amounts card
  • Federal Tax Credit for Employer-Provided Paid Family and Medical Leave
  • Understanding Wellness Programs and their Legal Requirements
  • Court Modifies Order Regarding EEOC Wellness Rules
  • The Play-or-Pay Penalty and Counting Employees under the ACA
  • Nondiscrimination Rules for Cafeteria Plans
  • HRAs, HSAs, and Health FSAs – What’s the Difference?

IRS Releases ACA Indexed Affordability Threshold for 2019

The Internal Revenue Service (IRS) released its Revenue Procedure 2018-34 that makes an indexing adjustment to the required contribution percentage that is used to determine whether employer- sponsored health coverage is affordable. For 2019, the percentage will be 9.86 percent.

This means that if an employer is using the federal poverty level (FPL) affordability safe harbor, then the maximum monthly self-only contribution will be $99.75. [9.86% of $12,140 (the 2018 contiguous U.S. FPL for one person), divided by 12, equals $99.75.]

IRS Releases 2019 Limits on Health Savings Accounts

The Internal Revenue Service (IRS) released its Revenue Procedure 2018-30 that provides the 2019 inflation adjusted amounts for health savings accounts (HSAs).

For 2019, the annual limitation on deductions for an individual with self-only coverage under a high deductible health plan is $3,500. For 2019, the annual limitation on deductions for an individual with family coverage under a high deductible health plan is $7,000.

For 2019, a “high deductible health plan” is defined as a health plan with an annual deductible that is notless than $1,350 for self-only coverage or $2,700 for family coverage, and the annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not exceed $6,750 for self-only coverage or $13,500 for family coverage.

IRS Releases Guidance on its Play-or-Pay Penalty Response Acknowledgment Letters

In late 2017, the Internal Revenue Service (IRS) started mailing Letter 226J to inform large employers of their potential liability for an employer shared responsibility payment (ESRP) for the 2015 calendar year.The IRS’ determination of an employer’s liability and potential payment is based on information reportedto the IRS on Forms 1094-C and 1095-C and information about the employer’s full-time employees that were allowed the premium tax credit.

The letter contains Form 14764 (ESRP Response) which is the form that the employer must use to file its response by the deadline listed in the letter. The employer uses Form 14764 to indicate that it agrees ordisagrees with the IRS’ letter. If an employer disagrees with the proposed liability, then it must provide a full explanation of its disagreement using Form 14765.

The IRS will acknowledge the employer’s response with a Letter 227 that describes the further actions that an employer can take. The IRS’ recently released Understanding Your Letter 227 describes the versions of Letter 227 that an employer may receive:

  • Letter 227-J acknowledges receipt of the signed agreement Form 14764, ESRP Response, and that the penalty will be assessed. After the IRS issues this letter, the case will be closed. No response is required.
  • Letter 227-K acknowledges receipt of the information provided and shows the penalty has been reduced to zero. After the IRS issues this letter, the case will be closed. No response is required.
  • Letter 227-L acknowledges receipt of the information provided and shows the penalty has been revised. The letter includes an updated Form 14765 and revised calculation table. The employer can agree or request a meeting with the manager and/or appeals.
  • Letter 227-M acknowledges receipt of information provided and shows that the penalty did not change. The letter provides an updated Form 14765 and revised calculation table. The employer can agree or request a meeting with the manager and/or appeals.
  • Letter 227-N acknowledges the decision reached in appeals and shows the penalty based on the appeals review. After the IRS issues this letter, the case will be closed. No response is required.

If, after receiving Letter 227, the employer agrees with the proposed penalty, then the employer would follow the instructions to sign the response form and return it with full payment in the envelope provided.

If, after receiving Letter 227, the employer disagrees with the proposed or revised shared employer responsibility payment, the employer must provide an explanation of why it disagrees or indicate changes needed, or both, on Form 14765. Then the employer must return all documents as instructed in the letter by the response date. The employer may also request a pre-assessment conference with the IRS Office of Appeals within the response date listed within Letter 227, which will be generally 30 days from the date of the letter.

If the employer does not respond to either Letter 226J or Letter 227, the IRS will assess the amount of the proposed employer shared responsibility payment and issue a notice and demand for payment.

IRS Issues Proposed Rule to Expand Mandatory Electronic Filing

The Internal Revenue Service (IRS) published a proposed rule that would affect most employers who are required to file information returns, such as Forms W-2, Forms 1095-B, Forms 1095-C, and forms in the 1099 series.

Currently, employers are not required to electronically file their returns with the IRS unless they are required to file at least 250 returns during the calendar year. The IRS uses a non-aggregation rule in applying this 250-return threshold. Essentially, it uses a separate total for each type of information return filed and each type of corrected information return filed. This means that if an employer files 150 Forms W-2 and 100 Forms 1095-C this year, then the employer is not required to file electronically.

Under the proposed rule, the IRS would determine whether an employer meets the 250-return threshold by aggregating its information returns. Using the example above, under the proposed rule, the employer would meet the 250-return threshold and would be required to electronically file its information returns.

Corrected returns would not be included in the calculation of whether an employer meets the 250-return threshold. However, the proposed rule would require an employer to electronically file its corrected returns if the original returns were electronically filed.

If finalized, these regulations will apply to employers’ information returns filed after December 31, 2018.

IRS Releases Tax Reform Tax Tip and FAQs Regarding Family and Medical Leave Credit

The Internal Revenue Service (IRS) released its Tax Reform Tax Tip 2018-69: How the Employer Credit for Family and Medical Leave Benefits Employers and its updated Section 45S Employer Credit for Paid Family and Medical Leave FAQs that primarily reiterates the Tax Cuts and Jobs Act’s provisions thatprovide a new federal credit for employers that provide paid family and medical leave to their employees.

In its Tax Tip, the IRS explains that an employer must reduce its deduction for wages or salaries paid or incurred by the amount determined as a credit. Also, any wages taken into account in determining any other general business credit may not be used in determining this credit.

In its FAQs, the IRS indicates that, in the future, it will address when the written policy must be in place, how paid family and medical leave relates to an employer’s other paid leave, how to determine whetheran employee has been employed for one year or more, the impact of state and local leave requirements, and whether members of a controlled group of corporations and businesses under common control are treated as a single taxpayer in determining the credit.

IRS Releases Fact Sheet on Determining Whether an Employer is a Large Employer

The Internal Revenue Service (IRS) released Publication 5208 – Affordable Care Act: Determining if you are an applicable large employer that provides a three-step process for employers to determine whether they are an applicable large employer for purposes of the employer shared responsibility provisions.

Although this one-page fact sheet doesn’t provide new information about counting employees, it may be ahelpful guide for those employers who have fewer than 50 full-time or full-time equivalent employees and who are growing their staff numbers.

Wellness Program Court Case Update

In August 2017, the United States District Court for the District of Columbia held that the U.S. Equal Employment Opportunity Commission (EEOC) failed to provide a reasoned explanation for its decision to adopt 30 percent incentive levels for employer-sponsored wellness programs under both the Americans with Disabilities Act (ADA) rules and Genetic Information Nondiscrimination Act (GINA) rules.

In December 2017, the court vacated the EEOC rules under the ADA and GINA effective January 1, 2019, and ordered the EEOC to promulgate any new proposed rules by August 31, 2018.

In January 2018, the EEOC asked the court to reconsider the portion of the court’s order that required the EEOC to promulgate new proposed rules by August 31, 2018. The court vacated that portion of its order. The EEOC recently reported that it had not decided whether to promulgate new regulations. The court’s order to vacate the portions of the EEOC’s wellness rules under the ADA and GINA as of January 1,2019, remains.

For 2019 and until the EEOC issues final rules regarding incentive limits, risk-averse employers should consider discontinuing wellness programs that require a medical exam, biometric screening, or health risk assessment for participants to receive an incentive. When the ADA and GINA incentive limits are vacated, the less restrictive ACA-amended HIPAA regulations will continue to apply. However, using these less restrictive incentive limits may be risky because these regulations predated the EEOC’s wellness regulations.

Treasury Releases its Updated Priority Guidance Plan and Opens Public Comment for Next Priority Guidance Plan

The U.S. Department of the Treasury (Treasury) released its third quarter update to its 2017-2018 Priority Guidance Plan (Plan). The Plan identifies projects that the Treasury and the Internal Revenue Service (IRS) intend to complete during the 12-month period ending on June 30, 2018.

The Plan’s “Executive Compensation, Health Care and Other Benefits, and Employment Taxes” sectionlists the following items among its projects:

  • Guidance on issues under §4980H (the employer shared responsibility provisions)
  • Regulations under §4980I regarding the excise tax on high cost employer-provided coverage (“Cadillac tax”)
  • Guidance on qualified small employer health reimbursement arrangements (QSEHRAs)

The Treasury and IRS also issued Notice 2018-43 that invites public comment on recommendations for items that should be included on the agencies’ 2018-2019 Priority Guidance Plan. Although public comments may be submitted throughout the year, comments submitted by June 15, 2018, will be considered for inclusion on the original 2018-2019 Priority Guidance Plan.

HHS’ Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs

The U.S. Department of Health and Human Services (HHS) published its policy statement and released its American Patients First blueprint to lower drug prices and reduce out-of-pocket costs (collectively, the Blueprint).

Although most of the Blueprint focuses on reducing government health programs’ costs, some of theBlueprint’s goals may affect employers’ group health plans in the future. The Blueprint strives to:

  • Create incentives for pharmaceutical companies to lower list prices and reduce consumer out-of- pocket spending at the pharmacy and other case settings
  • Increase price transparency
  • Apply a substantial portion of rebates at the point of sale
  • Have a site-neutral payment policy for drug administration procedures
  • Have pharmacy benefit managers (PBMs) act solely in the interest of the employer (or consumer)for whom they are managing pharmaceutical benefits
  • Restrict the use of rebates
  • Prohibit contracted pharmacy gag clauses

SEC Issues Bulletin on Health Savings Accounts

The U.S. Securities and Exchange Commission (SEC) issued Investor Bulletin: Health Savings Accounts (HSAs) that provides investors with information about HSAs. Although the Internal Revenue Service (IRS) primarily regulates HSAs, the SEC’s bulletin addresses the savings, investment, and distribution options that may be available to an HSA accountholder.

Question of the Month
Q. For a high deductible health plan (HDHP) to qualify for health savings account (HSA) eligibility, what is the minimum amount that an embedded individual deductible can be?

A. For 2018, the embedded individual deductible must be at least $2,700. For an HDHP to qualify for HSA eligibility, an individual with family coverage would need to satisfy the required minimum
annual deductible for family HDHP coverage (which is at least $2,700 for 2018) before any amounts are paid from the HDHP.

5/31/2018

Download the full recap here.


Compliance Recap April 2018

April was a busy month in the employee benefits world.

The Internal Revenue Service (IRS) modified the 2018 health savings account (HSA) family contribution limit back to $6,900. The U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and the Treasury released proposed frequently asked questions regarding mental health parity. The Centers for Medicare and Medicaid Services (CMS) released the 2019 parameters for the Medicare Part D prescription drug benefit, a 2019 Benefit and Payment Parameters final rule, a transitional policy extension for non-grandfathered coverage in the small group and individual health insurance markets, and an assignment schedule for new Medicare beneficiary identifiers. The IRS released frequently asked questions on the employer credit for paid family medical leave. The Congressional Research Service (CRS) published a summary of federal requirements that apply to the private health insurance market.

 

UBA Updates
UBA released one new advisor: 2019 Benefit and Payment Parameters Final Rule
UBA updated existing guidance: Sample Open Enrollment Notices Packet

 

IRS Changes 2018 HSA Family Contribution Limit
The Internal Revenue Service (IRS) recently released Revenue Procedure 2018-27 to modify the 2018 health savings account (HSA) family contribution limit back to $6,900. This is the second, and likely final, change in limit during 2018. As background, in May 2017, the IRS released Revenue Procedure 2017-37 that set the 2018 HSA family contribution limit at $6,900.

However, in March 2018, the IRS released Revenue Procedure 2018-10 that adjusted the annual inflation factor for some tax-related formulas from the Consumer Price Index (CPI) to a new factor called a “chained CPI.” As a result, the 2018 HSA family contribution limit was lowered to $6,850 from $6,900, retroactively effective to January 1, 2018. Stakeholders informed the IRS that the lower HSA contribution limit would impose many unanticipated administrative and financial burdens. In response and in the best interest of sound and efficient tax administration, the IRS will allow taxpayers to treat the originally published $6,900 limit as the 2018 HSA family contribution limit.

Excess Contribution Tax Treatment if Employee Received Distribution Based on Earlier Limit

DOL, HHS, and Treasury Release Proposed FAQs on Mental Health Parity
The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively,
the “Departments”) released proposed FAQs About Mental Health and Substance Use Disorder Parity

Implementation and the 21st Century Cures Act Part XX.
The Departments respond to FAQs as part of implementing the Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

Generally, the MHPAEA requires that the financial requirements (for example, coinsurance and copays)
and treatment limitations (for example, visit limits) imposed on mental health or substance abuse disorder
(MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment
limitations that apply to substantially all medical/surgical benefits in a class.

Similarly, a group health plan or issuer cannot impose a nonquantitative treatment limitation (NQTL) on
MH/SUD benefits that is more stringent than a comparable limitation that is applied to medical/surgical
benefits.

The MHPAEA regulations include express disclosure requirements. For example, if a participant requests
the criteria for medical necessity determinations regarding MH/SUD benefits, then the plan administrator
must make the information available to the participant.

To assist plan sponsors with disclosure requests, DOL released a revised draft Mental Health and
Substance Use Disorder Parity Disclosure Request that plan sponsors may provide to individuals who
request information from an employer-sponsored health plan regarding treatment limitations.

To assist plan sponsors in determining whether a group health plan complies with MHPAEA, the DOL
released its Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act.

 

CMS Releases 2019 Parameters for Medicare Part D Prescription Drug Benefit
The Centers for Medicare and Medicaid Services (CMS) released the following parameters for the defined
standard Medicare Part D prescription drug benefit for 2019:


Generally, group health plan sponsors must disclose to Part D eligibility individuals whether the
prescription drug coverage offered by the employer is creditable. Coverage is creditable if it, on average,
pays out at least as much as coverage available through the defined standard Medicare Part D
prescription drug plan.

 

CMS Issues 2019 Benefit and Payment Parameters Final Rule
The Centers for Medicare and Medicaid Services (CMS) published its 2019 Benefit and Payment
Parameters final rule. The rule primarily affects the individual health insurance market inside and outside
of the Exchange, the small group health insurance market, issuers, and the states.

Within the rule, three items most directly affect employers and their group health plans:
• Maximum annual out-of-pocket limit on cost sharing for 2019
• New methods for changing state EHB-benchmark plans
• New requirements for employers and issuers participating in the Small Business Health Options
Program (SHOP) Marketplace

 

CMS Issues Transitional Policy Extension
The Centers for Medicare and Medicaid Services (CMS) issued a bulletin extending its transitional policy.

As background, in November 2013, CMS announced a transitional policy for non-grandfathered coverage
in the small group and individual health insurance markets. Under its policy, health insurance issuers may
choose to continue certain coverage that would otherwise be cancelled because of noncompliance with
Patient Protection and Affordable Care Act (ACA) and Public Health Service Act (PHS Act). Further,
affected small businesses and individuals may choose to re-enroll in such coverage.

Under its policy, non-grandfathered health insurance coverage in the small group and individual health
insurance markets will not be considered to be out of compliance with the following ACA and PHS Act
market reforms if certain criteria are met:
• Fair health insurance premiums
• Guaranteed availability of coverage
• Guaranteed renewability of coverage
• Prohibition of pre-existing condition exclusions or other discrimination based on health status,
with respect to adults, except with respect to group coverage
• Prohibition of discrimination against individual participants and beneficiaries based on health
status), except with respect to group coverage
• Non-discrimination in health care
• Coverage for individuals participating in approved clinical trials
• Single risk pool requirement

Under CMS’ transitional policy, states may permit issuers that have renewed policies under the
transitional policy continually since 2014 to renew such coverage for a policy year starting on or before
October 1, 2019. However, any policies renewed under this transitional policy must not extend past
December 31, 2019.

 

CMS Starts Assigning New Medicare Beneficiary Identifiers
The Centers for Medicare and Medicaid Services (CMS) started issuing new Medicare cards with a
Medicare Beneficiary Identifier (MBI) or Medicare number. The MBI will replace the Social Security
number-based Health Insurance Claim Number (HICN) for Medicare transactions such as billing, eligibility
status, and claim status.

New enrollees will be among the first to get these new cards. Current Medicare beneficiaries will get their
new cards on a rolling basis over the next few months.

Employers who are currently capturing the HICN for their active employee or retirees should update their
systems to accept the new MBIs.

 

IRS Releases FAQ on Employer Credit for Paid Family Medical Leave
The IRS released an FAQ that primarily reiterates the Tax Cuts an Jobs Act’s provisions that provide a
new federal credit for employers that provide paid family and medical leave to their employees.

The IRS explains that an employer must reduce its deduction for wages or salaries paid or incurred by the
amount determined as a credit. Also, any wages taken into account in determining any other general
business credit may not be used in determining this credit.

The IRS adds this definition of “paid family and medical leave” that, for purposes of the credit, includes
time off for:
• Birth of an employee’s child and to care for the child.
• Placement of a child with the employee for adoption or foster care
• To care for the employee’s spouse, child, or parent who has a serious health condition
• A serious health condition that makes the employee unable to perform the functions of his or
her position
• Any qualifying exigency due to an employee’s spouse, child, or parent being on covered active
duty (or having been notified of an impending call or order to covered active duty) in the Armed
Forces.
• To care for a service member who is the employee’s spouse, child, parent, or next of kin

The FAQ also explains that, in the future, the IRS intends to address:
• When the written policy must be in place
• How paid “family and medical leave” relates to an employer’s other paid leave
• How to determine whether an employee has been employed for “one year or more”
• The impact of state and local leave requirements
• Whether members of a controlled group of corporations and businesses under common control
are treated as a single taxpayer in determining the credit

 

CRS Publishes Federal Requirements on Private Health Insurance Plans
The Congressional Research Service (CRS) published Federal Requirements on Private Health
Insurance Plans, which summarizes federal requirements that apply to the private health insurance
market, including a table that indicates whether a particular federal requirement applies to a fully-insured
large group plan, fully-insured small group plan, self-funded plan, or individual coverage.

Question of the Month
Q. What are the penalties for failing to comply with Section 125 requirements, such as failing to follow a
cafeteria plan document’s terms?

A. An operational failure occurs when a plan fails to follow its cafeteria plan document’s terms. There are
several potential penalties for operational failures, including:
• Cafeteria plan disqualification
• Requiring the cafeteria plan to comply with Section 125 and its regulations, including reversing
transactions that caused noncompliance
• Imposing employment tax withholding liability and penalties on the employer regarding pre-tax
salary reductions and elective employer contributions
• Imposing employment and income tax liability and penalties on employees regarding pre-tax
salary reductions and elective employer contributions

5/15/2018

Download the full recap here.


Change to 2018 HSA Family Contribution Limit

Yesterday, the IRS released a bulletin that includes a change impacting contributions to Health Savings Accounts (HSAs).

 

  • The family maximum HSA contribution limit has decreased from $6,900 to $6,850.
  • This change is effective January 1, 2018 and for the entire 2018 calendar year.
  • The self-only maximum HSA contribution limit has not changed. 
  • This means that current 2018 HSA contribution limits are $3,450 (self-only) and $6,850 (family).

 

Why is the change happening so abruptly?

 

The IRS continues to make adjustments to accommodate the new tax law that passed at the end of 2017. Tax reform updates require the IRS to implement a modified method of calculating inflation-adjusted or cost-of-living-adjusted limits for 2018. The IRS is now using a different index (Chained Consumer Price Index for All Urban Consumers) to calculate benefit-related inflationary adjustments.

 

Typically, the IRS adjusts the HSA limits for inflation on an annual basis about six months before the start of the impacted year. For example, the IRS established the 2018 limits in May 2017. Today’s bulletin supersedes those limits.

Resource:

• IRS Bulletin IRB 2018-10March 5, 2018


HRL - White - House

Compliance Recap - January 2018

January was a busy month in the employee benefits world. On January 24, 2018, the U.S. Senate confirmed Alex Azar as the new Secretary of the U.S. Department of Health and Human Services (HHS).

The U.S. Department of Labor (DOL) proposed regulations regarding association health plans. HHS released the 2018 federal poverty guidelines. The DOL issued updated civil monetary penalties for 2018 and announced the applicability date for final regulations regarding disability claims procedures. A U.S. District Court modified its order regarding the Equal Employment Opportunity Commission's wellness regulations.

Congress and the President delayed the Cadillac tax's effective date, delayed the health insurance tax (HIT), and reauthorized the Children's Health Insurance Program. The Internal Revenue Service (IRS) released its Employer's Tax Guide. HHS issued a proposed rule to protect conscience rights in health care and created a new Conscience and Religious Freedom Division within HHS' Office of Civil Rights.

UBA Updates

UBA released seven new advisors in January:

UBA updated existing guidance: 2018 Annual Benefit Plan Amounts

DOL Issues Proposed Regulations Regarding Association Health Plans

The U.S. Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) issued a proposed rule which would broaden the definition of "employer" and the provisions under which an employer group or association may be treated as an "employer" sponsor of a single multiple-employer employee welfare benefit plan and group health plan under Title I of the Employee Retirement Income Security Act of 1974 (ERISA).

The DOL posted 79 letters that were submitted as public comments as of January 31, 2018. The deadline for submitting public comments is March 6, 2018.

Read more about the proposed rule.

HHS Releases 2018 Federal Poverty Guidelines

The U.S. Department of Health and Human Services (HHS) released the 2018federal poverty guidelines (FPL). For a family / household of one in the contiguous United States, the FPL is $12,140. In Alaska the FPL is $15,180, and in Hawaii the FPL is $13,960.

For 2018, applicable large employers that wish to use the FPL affordability safe harbor under the employer shared responsibility / play-or-pay rules should ensure that their lowest employee-only premium is equal to or less than $96.72 a month, which is 9.56% of the 2018 FPL.

Civil Monetary Penalties Inflation Adjustment for 2018

The U.S. Department of Labor (DOL) published its civil monetary penalties for 2018. Under federal law, the DOL is required to annually adjust its regulations' civil monetary penalties for inflation no later than January 15 of each year. The adjusted penalty amounts are effective for violations occurring after November 2, 2015, that have penalties assessed after January 2, 2018.

Below are some examples of the increases.

Description 2017 Penalty Amount 2018 Penalty Amount
Failure to file Form 5500 $2,097 per day $2,140 per day
Failure to provide the Summary of Benefits and Coverage (SBC) $1,105 $1,128
Failure to provide documents requested by the DOL $149 per day, not to exceed $1,496 per request $152 per day, not to exceed $1,527 per request
Failure to inform employees of children's health insurance program (CHIP) coverage opportunities; each employee is a separate violation $112 per day $114 per day

 

DOL Issues Final Disability Claims Procedures Regulations' Applicability Date

The U.S. Department of Labor (DOL) announced that April 1, 2018, will be the applicability date for its rule that amends the claims procedure requirements of ERISA-covered employee benefit plans that provide disability benefits. The DOL'sFact Sheet contains a summary of the regulation's requirements.

U.S. District Court Modifies Order Regarding EEOC Wellness Rules

In August 2017, the United States District Court for the District of Columbia heldthat the U.S. Equal Employment Opportunity Commission (EEOC) failed to provide a reasoned explanation for its decision to adopt 30 percent incentive levels for employer-sponsored wellness programs under both the Americans with Disabilities Act (ADA) rules and Genetic Information Nondiscrimination Act (GINA) rules.

In December 2017, the court vacated the EEOC rules under the ADA and GINA effective January 1, 2019, and ordered the EEOC to promulgate any new proposed rules by August 31, 2018.

In January 2018, the EEOC asked the court to reconsider the portion of the court's order that required the EEOC to promulgate new proposed rules by August 31, 2018. The court vacated that portion of its order. The court's order to vacate the portions of the EEOC's wellness rules under the ADA and GINA as of January 1, 2019, remains.

Read more about the court's order.

Congress Delays Cadillac Tax Effective Date, Delays HIT Tax, and Reauthorizes CHIP

Congress and the President passed H.R. 195, a short-term spending bill. The bill delays the effective date of the excise tax on high cost employer-sponsored health coverage ("Cadillac tax") to 2022. The bill delays the health insurance tax (HIT) that applies to insurers. The HIT was in effect in 2014, 2015, and 2016, and will be in effect for 2018. Now the HIT will be delayed from 2019 to 2020; essentially, the bill implemented a one-year moratorium for the HIT for 2019. The bill also reauthorizes the Children's Health Insurance Program (CHIP) for six years.

IRS Issues 2018 Employer's Tax Guide

The Internal Revenue Service (IRS) issued its Publication 15 (Circular E) Employer's Tax Guide that discusses employers' tax responsibilities. The guide generally discusses health insurance plans, health savings accounts, and medical care reimbursement.

HHS Issues Proposed Rule to Protect Conscience Rights in Health Care

The U.S. Department of Health and Human Services (HHS) published a proposed rule titled "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority."

HHS proposes this rule pursuant to President Trump's May 4, 2017, Executive Order 13798 "Promoting Free Speech and Religious Liberty" and the U.S. Attorney General's October 6, 2017, "Federal Law Protections for Religious Liberty"memorandum.

HHS proposes this rule to enhance awareness and enforcement of federal health care conscience laws and associated anti-discrimination laws, to further conscience and religious freedom, and to protect the right to abstain from certain activities related to health care services without discrimination or retaliation.

The rule cites several federal health care conscience laws and the activities that they protect, including:

·    The Church Amendments: conscience protections related to abortion and sterilization

·    The Coats-Snowe Amendment: conscience protections related to abortion, training, and accreditation

·    The Weldon Amendment: protections against discrimination for health care entities and individuals who do not further abortion or other services

·    HHS' 2011 final rule that enforces the Church, Coats-Snowe, and Weldon Amendments

·    The Consolidated Appropriations Act of 2017: protections from discrimination for health care entities and individuals who object to furthering or participating in abortion under programs funded by HHS' annual appropriations

·    The Patient Protection and Affordable Care Act: conscience protections related to assisted suicide, abortion, and the individual mandate to maintain minimum essential coverage

·    The Assisted Suicide Funding Restriction Act of 1997: protections for Medicare or Medicaid program providers and their employees from informing individuals about a right or service related to assisted suicide and from applying any advance directive term related to assisted suicide

·    Medicare and Medicaid: protection from being compelled to provide, reimburse for, or cover any counseling or referral service over a moral or religious objection

·    Global health program conscience and anti-discrimination protections

·    Exemptions from compulsory health care or services generally and under specific programs for hearing screening, occupational illness testing, suicide assessment or treatment services, vaccination, and mental health treatment

·    Conscience clauses related to religious nonmedical health care in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP).

The proposed rule aims to revise the current regulatory framework of federal health care conscience protection statutes to a more robust regulatory framework similar to those that implement and enforce other civil rights laws.

To do so, the proposed rule would require written assurances and certifications of compliance with federal health care conscience and associated anti-discrimination laws as part of accepting federal financial assistance from HHS. The proposed rule would also require HHS and certain recipients to post a notice to the public, patients, and employees of their protections under the federal health care conscience and associated anti-discrimination statutes, including how to file a complaint with HHS' Office of Civil Rights (OCR). The proposed rule's Appendix A provides the notice's text. Further, the proposed rule would require recipients to report information about OCR investigation notices and compliance review letters to their applicable HHS funding source and to disclose complaints filed with OCR when applying for new or renewed federal financial assistance from HHS.

The proposed rule details OCR's authority to conduct outreach, provide technical assistance, initiate compliance reviews, receive and process complaints, and conduct investigations. The proposed rule grants OCR discretion to choose its means of enforcement, which will range from informal resolution to funding termination. The OCR may also refer cases to the U.S. Department of Justice for enforcement.

Public comments are due by March 27, 2018.

HHS Creates New Conscience and Religious Freedom Division

The U.S. Department of Health and Human Services (HHS) announced the new Conscience and Religious Freedom Division (CRFD) within HHS's Office of Civil Rights (OCR). According to HHS' press release, the CRFD will restore federal enforcement of laws that protect the rights of conscience and religious freedom. CFRD's website includes instructions on how to file a conscience or religious freedom complaint with OCR.

Question of the Month

Q. Can an employer exclude children from coverage based on a child's access to other coverage, employment status, or marital status?

A. No, if a group health plan provides dependent coverage, then the plan must generally make coverage available for children until age 26. These group health plans must not define dependent, for purposes of dependent coverage, in terms other than the relationship between the child and the plan participant.

This means that a plan cannot use items such as a child's access to other coverage, employment status, marital status, tax dependent status, residency, or student status to define dependent.

Also, if the employer is an applicable large employer, then it must offer coverage to its full-time employees' dependent children to avoid penalties under the employer shared responsibility provisions.