Compliance Recap - August 2018

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

The Internal Revenue Service (IRS), the Department of Health and Human Services (HHS), and the Department of Labor (DOL) published a final rule that amends the definition of short-term, limited-duration insurance. HHS also released a fact sheet on the final rule. To provide guidance on association health plans, the DOL posted a fact sheet and the IRS posted a new Q&A for employers. The IRS also released a memo regarding tax payment of a prior year’s fringe benefits

IRS, HHS, and DOL Issue Final Rule on Short-Term, Limited-Duration Insurance

On August 3, 2018, the Internal Revenue Service, the Department of Health and Human Services (HHS), and the Department of Labor (collectively, the Departments) published a final rule that amends the definition of short-term, limited-duration insurance. HHS also released a fact sheet on the final rule.

According to the Departments, the final rule will provide consumers with more affordable options for health coverage because they may buy short-term, limited-duration insurance policies that are less than 12 months in length and may be renewed for up to 36 months.

The final rule will apply to insurance policies sold on or after October 2, 2018. Read more about the final rule.

DOL and IRS Release Additional Information on Association Health Plans

On August 20, 2018, the Department of Labor (DOL) posted the Association Health Plans ERISA Compliance Assistance fact sheet.

On August 20, 2018, the IRS added a new Q&A 18 to its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act. Q&A 18 confirms that:

  • An employer that is not an applicable large employer (ALE) under the employer shared responsibility provisions does not become an ALE due to participation in an AHP.
  • An employer that is an ALE under the employer shared responsibility provisions continues to be an ALE subject to the employer shared responsibility provisions regardless of its participation in an AHP.
  • The only circumstance when multiple employers are treated as a single employer for determining whether the employer is an ALE is if the employers have a certain level of common or related ownership.

Read more about the association health plan final rule.

IRS Releases Memo Regarding Tax Payment of Prior Year’s Fringe Benefits

The Internal Revenue Services (IRS) Office of Chief Counsel released Project Manager Technical Advice Memorandum 2018-015. The fact situation involves an employer that failed to include $10,000 in fringe benefits in an employee’s taxable wages for 2016. The employer will be satisfying its obligations by paying the federal income tax withholding and FICA taxes in 2018.

The IRS states that an employer’s payment of taxes that should have been withheld in a prior year does not create additional wages to the employee for the prior year.

Further, if the employer deducts the employee FICA tax from other remuneration paid to the employee (or otherwise collects the amount from the employee), the payment of employee FICA tax by the employer is not additional compensation to the employee in 2018.

However, if the employer does not seek repayment of the employee FICA tax from the employee, the employer’s payment of employee FICA tax in 2018 (without collecting the amount from the employee) is additional wages to the employee when paid in 2018 and is subject to employment taxes.

Question of the Month

Q. Under the ACA, if an employer’s size grows, when does the employer need to offer coverage and report on coverage offered?

A. If the employer employs an average of at least 50 full-time or full-time equivalent employees during calendar year 2018, then it would make offers of coverage in 2019, and report in 2020 on its offers of coverage made in 2019.

The applicable large employer determination is a three-year cycle. For example, an employer’s size, calculated at the conclusion of 2018 determines its obligations for 2019, which it reports on in 2020.

If 2018 is the first time that a company is an applicable large employer, then the company will have until April 1, 2019, to offer coverage. If the company has individuals who are currently full-time employees and the company offers a group health plan, then the company must offer coverage to those full-time employees on January 1, 2019.


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.


March 2018 Compliance Recap

From UBA Benefits, here is your March 2018 Compliance Recap - everything you need to know that's been happening in the employee benefits world.

March was a quiet month in the employee benefits world.

The Internal Revenue Service (IRS) released a bulletin that lowered the family contribution limit for health savings account (HSA) contributions. The U.S. Department of Labor (DOL) updated its model Premium Assistance Under Medicaid and the Children’s Health Insurance Program notice (CHIP notice).

The IRS issued its updated Employer’s Tax Guide to Fringe Benefits, issued transition relief regarding HSA eligibility of individuals with health insurance that provides benefits for male sterilization or male contraceptives without a deductible, and issued its updated Guide on Health Savings Accounts and Other Tax-Favored Health Plans.

UBA Updates

UBA released two new advisors:

UBA updated existing guidance: 2018 Annual Benefit Plan Card

IRS Releases Adjusted Annual Inflation Factor

The Internal Revenue Service (IRS) released its Internal Revenue Bulletin No. 2018-10 that adjusted the annual inflation factor from the Consumer Price Index (CPI) to a new factor called a chained CPI. This is retroactively effective to January 1, 2018.

As a result of the change, the family contribution limit for Health Savings Account contributions is lowered to $6,850 from $6,900. Individuals with family coverage who planned to contribute to the full family amount should decrease their contributions going forward.

Review our updated 2018 Annual Benefit Plan Card and read more.


DOL Updates Employer CHIP Notice

The U.S. Department of Labor (DOL) updated its model Premium Assistance Under Medicaid and the Children’s Health Insurance Program notice (CHIP notice).

Employers that provide health insurance coverage in states with premium assistance through Medicaid or the Children’s Health Insurance Program (CHIP) must provide their employees with the CHIP notice before the start of each plan year. The CHIP notice provides information to employees on how to apply for premium assistance, including how to contact their state Medicaid or CHIP office. The DOL usually updates its model CHIP notice biannually.

IRS Issues Updated Employer’s Tax Guide to Fringe Benefits

The Internal Revenue Service (IRS) issued its 2018 Publication 15-B which contains information for employers on the employment tax treatment of fringe benefits. The guide is updated to reflect, among other items:

  • The suspension of qualified bicycle commuting reimbursements from an employee’s income for any tax year beginning after December 31, 2017, and before January 1, 2026.
  • The suspension of the exclusion for qualified moving expense reimbursements from an employee’s income for tax years beginning after December 1, 2017, and before January 1, 2026. However, the exclusion remains available for a U.S. Armed Forces member on active duty who moves because of a permanent change of station.
  • Limits on the deduction by employers for certain fringe benefits, such as meals and transportation commuting benefits.
  • The definition of items that aren’t tangible personal property for purposes of employee achievement awards.

The guide lists fringe benefits’ tax treatment in its Table 2-1 “Special Rules for Various Types of Fringe Benefits.”

IRS Issues Transition Relief Notice for Plans with Male Sterilization or Contraceptive Benefit

Recently, some states adopted laws that require certain health insurance policies to provide benefits for male sterilization and male contraceptives without cost-sharing.

However, under health saving account (HSA) eligibility requirements, a high deductible health plan (HDHP) generally may not provide benefits for any year until the minimum deductible for that year is satisfied. Although an HDHP may provide preventive care without a deductible or with a deductible that is below the minimum annual amount required by HSA eligibility requirements, male sterilization and male contraceptives are not considered preventive care under the Social Security Act or any Treasury Department guidance.

The Internal Revenue Service (IRS) released its Notice 2018-12 (Notice) to clarify that if a health plan provides benefits for male sterilization or male contraceptives before satisfying the minimum deductible for an HDHP, then the plan is not an HDHP, regardless of whether state law requires coverage of such benefits. Further, an individual who is not covered by an HDHP with respect to a month is not an HSA-eligible individual and may not deduct contributions to an HSA for that month. Similarly, HSA contributions made by an employer on behalf of the individual are not excludible from income and wages.

To allow states time to change their laws so their residents will be able to purchase health insurance coverage that qualifies as an HDHP, the Notice provides transition relief for periods before 2020 to individuals who are, have been, or become participants in or beneficiaries of a health insurance policy that provides benefits for male sterilization or male contraceptives without a deductible or with a deductible below the minimum deductible for an HDHP.

During the transition relief period, an individual with this type of health insurance policy will not be treated as HSA-ineligible, merely because the policy fails to qualify as an HDHP.

IRS Issues Updated Guide on Health Savings Accounts and Other Tax-Favored Health Plans

The Internal Revenue Service (IRS) updated its Publication 969 for taxpayers to use in preparing their 2017 returns. The publication explains health savings accounts (HSAs), medical savings accounts (Archer MSAs and Medicare Advantage MSAs), health flexible spending arrangements (FSAs), and health reimbursement arrangements (HRAs).

Question of the Month

  1. How does a person who is 65 years old or older maintain HSA eligibility and continue working? Also, when the person plans to retire, what should the person do about HSA contributions to avoid IRS penalties?
  2. To maintain HSA eligibility, an individual who is working and age 65 or older must:
  • Not apply for or waive Medicare Part A, and
  • Not apply for Medicare Part B, and
  • Waive or delay Social Security benefits.

For example, if a person delays Social Security benefits and delays Medicare Part A and B, retires at the end of April at the age of 65 or older, and applies for Social Security benefits and Medicare on May 1, 2018, then the general rule is that the person’s Social Security entitlement and Medicare Part A coverage will be retroactive for six months, meaning that the benefits would be retroactively effective as of November 2017.

IRS regulations state that a person can’t contribute to an HSA when the person has Medicare, so a person would need to stop contributing six months in advance of applying for Social Security benefits and Medicare. If a person contributes to an HSA after Medicare coverage begins, then the person may be subject to IRS penalties.

4/3/2018


Compliance Recap-February 2018

What's been happening in the employee benefits world? Get your latest updates on healthcare in this February 2018 Compliance Recap.


February was a quiet month in the employee benefits world.

The Internal Revenue Service (IRS) updated its Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C, its Questions and Answers on Information Reporting by Health Coverage Providers, and its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act.

The IRS released its adjusted penalty amounts under the employer shared responsibility provisions for the 2018 calendar year. The IRS also released its Information Letter on COBRA HRA premium calculation. The IRS, the U.S. Department of Labor (DOL), and the U.S. Department of Health and Human Services (HHS) issued a proposed rule on short-term, limited-duration insurance.

UBA Updates

UBA released one new advisor: DOL Final Rule on Disability Claims Procedures: Eight Things to Know.

IRS Updates Its Employer Information Reporting Q&As

The Internal Revenue Service (IRS) updated its “Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C.” The IRS made one substantive change to the Q&As. At Q&A #5, the IRS provided the 2018 due dates for furnishing forms to employees and filing forms with the IRS.

For reporting in 2018 (for offers of coverage and coverage in 2017), an applicable large employer must furnish Form 1095-C to each full-time employee on or before March 2, 2018. This due date reflects a 30-day extension from the general due date (that is, January 31 of the year immediately following the calendar year to which the information relates); the extension was provided by the IRS in Notice 2018-06 on December 22, 2017. The extension applies automatically and does not require the submission of any request or other documentation to the IRS.

Generally, Forms 1094-C and 1095-C must be filed by February 28 of the year following the calendar year to which the return relates if filing on paper (or March 31 if filing electronically). The requirement to file Forms 1094-C and 1095-C is met if the forms are properly addressed and mailed on or before the due

 

date. If the due date falls on a weekend or legal holiday, then the due date is the following business day. A business day is any day that is not a Saturday, Sunday or legal holiday. Although the IRS extended the due date for furnishing Form 1095-C for 2017, the due date for filing Forms 1094-C and 1095-C with the IRS was not extended.

IRS Updates Its Q&As on Information Reporting by Health Coverage Providers

The Internal Revenue Service (IRS) updated its Questions and Answers on Information Reporting by Health Coverage Providers (Section 6055) by adding questions 30 through 35. Among other items, the Q&As discussed IRS Notice 2018-06 that extends the due date for furnishing the 2017 Form 1095-B to individuals to March 2, 2018.

Also, the IRS discussed short-term relief available from penalties for incomplete or incorrect returns filed with the IRS or furnished to individuals. For reporting in 2016, 2017, and 2018, the IRS will not impose penalties on employers that can show that they have made good faith efforts to comply with the information reporting requirements.

IRS Announces the Play-or-Pay Adjusted Penalty Amounts

The Internal Revenue Service (IRS) updated its Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act to reflect adjusted penalty amounts for failures to offer coverage in the 2018 calendar year. For Penalty A (or the “no offer” penalty), the adjusted penalty amount per full-time employee is $2,320. For Penalty B (or the “inadequate coverage” penalty), the adjusted penalty amount per full-time employee is $3,480.

IRS Releases Information Letter on COBRA HRA Premium Calculation

The Internal Revenue Service (IRS) released its Information Letter 2017-0027, which discusses how an employer determines a COBRA premium for a health reimbursement arrangement (HRA).

Under COBRA, an employer can charge a premium that is equal to the plan’s cost of the coverage for similarly situated beneficiaries to whom a qualifying event has not occurred, plus two percent for administrative expenses. COBRA permits the plan administrator to choose between one of two methods for determining COBRA premiums for the HRA. The applicable premium can be calculated either on an actuarial basis, or on a past cost basis.

IRS, DOL, and HHS Issue Proposed Rule on Short-Term Limited-Duration Insurance

The Internal Revenue Service (IRS), the U.S. Department of Labor (DOL), and the U.S. Department of Health and Human Services (HHS) issued a proposed rule to amend the definition of short-term, limited-duration insurance for purposes of its exclusion from the definition of individual health insurance coverage.

Short-term, limited-duration insurance is designed to fill temporary gaps in coverage that may occur when an individual is transitioning from one plan or coverage to another. Because short-term, limited-duration insurance is not individual health insurance coverage, it is exempt from individual market requirements.

Under current regulations, short-term, limited duration insurance cannot provide coverage for three months or longer (including any renewal periods) and a specific written notice must be included in the contract and any application materials provided as part of enrollment.

The proposed rule would expand the potential maximum coverage period by nine months. The proposed rule would also revise the required notice that must appear in the contract and any application materials for short-term, limited-duration insurance.

Public comments are due by April 23, 2018.

Question of the Month

  1. When the plan changes, when should I give notice to participants?
  2. Depending on the change that is made, an employer must provide notice within one of three time frames:
  • 60 days prior to the change
  • No later than 60 days after the change (or, within 60 days of the change)
  • Within 210 days after the end of the plan year

For modifications to the summary plan description (SPD) that constitute a material reduction in covered services or benefits, notice is required within 60 days of adoption of the material reduction in group health plan services or benefits. For example, a decrease in employer contribution would be a material reduction in covered services or benefits so notice should be provided within 60 days of the change in employer contribution. As a best practice, an employer should give advance notice of the change. For practical purposes, employees should be told prior to the first increased withholding.

If a plan makes a material modification in any of the plan terms that would affect the content of the most recently provided summary of benefits and coverage (SBC), then notice must be provided no later than 60 days prior to the date on which the modification will become effective.

However, if the change is part of open enrollment, assuming you communicate the change during open enrollment, the open enrollment communication is considered acceptable notice, regardless of whether the SBC or the SPD, or both, are changing. Open enrollment is essentially a safe harbor for the 60-day prior/60-day post notice requirements.

Finally, changes that do not require more immediate notifications, because they do not affect the SBC and are not a material reduction in benefits, must be communicated through a summary of material modifications or an updated summary plan description within 210 days after the end of the plan year.

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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.


HRL - Man - Working - Laptop

Compliance Recap - December 2017

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

The Internal Revenue Service (IRS) delayed the reporting deadlines in 2018 for the 1095-B and 1095-C forms to individuals. President Trump signed the Tax Cuts and Jobs Act. The Centers for Medicare and Medicaid Services (CMS) released guidance on accommodation revocation notices.

A U.S. District Court vacated U.S. Equal Employment Opportunity Commission (EEOC) wellness rules effective January 1, 2019. The U.S Department of Health and Human Services’ Office of Child Support Enforcement (OCSE) issued Frequently Asked Questions to address employers’ duties regarding medical support notices.

The IRS released Form 8941 instructions regarding credit for small employer health insurance premiums and Form W-2 reporting guidance for Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs).

UBA Updates

UBA updated existing guidance: Contraception Mandate Rolled Back for Employers

IRS Extends 2018 Deadlines for 1095-B and 1095-C Forms to Individuals

On December 22, 2017, the Internal Revenue Service (IRS) issued Notice 2018-06, delaying the reporting deadlines in 2018 for the 1095-B and 1095-C forms to individuals. The 1095-B form is now due to the individual identified as the “responsible individual” on the form by March 2, 2018. The 1095-C form is now due to employees by March 2, 2018.

There is no delay for the 1094-C and 1094-B forms, or for forms due to the IRS.

Read more about the IRS Notice.

President Trump Signs Tax Bill

On December 22, 2017, President Trump signed the Tax Cuts and Jobs Act (Act) that, among other items, eliminates the individual mandate penalty under the Patient Protection and Affordable Care Act (ACA). The Act reduces the penalty associated with the individual shared responsibility provision to zero, effective in 2019.

Per the Congressional Research Service’s summary, the bill amends the Internal Revenue Code to reduce tax rates and modify policies, credits, and deductions for individuals and businesses.

For businesses, the bill:

  • Reduces the corporate tax rate from a maximum of 35 percent to a flat 20 percent rate (25 percent for personal services corporations).
  • Allows increased expensing of the costs of certain property.
  • Limits the deductibility of net interest expenses to 30 percent of the business's adjusted taxable income.
  • Repeals the work opportunity tax credit.
  • Terminates the exclusion for interest on private activity bonds.
  • Modifies or repeals various energy-related deductions and credits.
  • Modifies the taxation of foreign income.
  • Imposes an excise tax on certain payments from domestic corporations to related foreign corporations.

The bill also repeals or modifies several additional credits and deductions for individuals and businesses.

In particular, the Act eliminates the business deduction for qualified mass transit and parking benefits starting in 2018, and eliminates the exclusion for bicycle commuting expenses for tax years 2018 through 2025. These benefits (except for bicycle commuting) will continue to be tax-exempt to employees. For 2018, employees can contribute up to a maximum of $260 per month for both qualified mass transit and parking expenses through an employer-sponsored qualified transportation plan under Section 132(f).

The Act’s elimination of the business deduction for qualified mass transit and parking benefits means that employers will be taxed on the value of providing qualified transportation fringe benefits.

CMS Releases Guidance on Accommodation Revocation Notices

The Patient Protection and Affordable Care Act (ACA) requires that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage provide coverage of certain specified preventive services without cost sharing. Under the ACA and interim final regulations, objecting entities could use an accommodation process as part of the exemption from the ACA’s requirement to provide contraceptive coverage.

If an entity wants to revoke the accommodation, then the regulations require that written notification be given to participants and beneficiaries. The Centers for Medicare and Medicaid Services (CMS) released guidance on the two methods that can be used to provide accommodation revocation notices.

Read more about CMS’ guidance.

U.S. District Court Vacates EEOC Wellness Rules Effective January 1, 2019

On August 22, 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.

At that time, the court declined to vacate the EEOC’s rules because of the significant disruptive effect it would have. However, the court remanded the rules to the EEOC for reconsideration.

In September 2017, the EEOC filed a status report indicating its schedule to comply with the court order, including issuing a proposed rule by August 2018 and a final rule by October 2019. It stated that it did not expect to require employers to comply with a new rule before 2021.

The court found the EEOC’s process of not generating applicable rules until 2021 to be unacceptable. Instead, the court determined that one year was ample time for employers to adjust to new EEOC rules. The court vacated the EEOC rule effective January 1, 2019, and ordered the EEOC to promulgate any new proposed rules by August 31, 2018.

OCSE Issues FAQs Regarding Employers’ Duties Regarding Medical Support Notices

The U.S Department of Health and Human Services’ Office of Child Support Enforcement (OCSE) issued its “Medical Support – Answers to Employers’ Questions” FAQs, which instruct employers and plan administrators how to complete Parts A and B of the National Medical Support Notice (NMSN). The FAQs also provide, among other items, the following guidance:

  • When a plan receives a request for information by a child support agency that issued an NMSN, the plan administrator is permitted to disclose protected health information in response to the NMSN under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
  • Even if a recently terminated employee has elected self-only COBRA continuation coverage, a plan should enforce the NMSN to cover the child of that former employee. If the plan is subject to COBRA and if the child loses coverage due to a qualifying event, then the child is a qualified beneficiary with the right to elect COBRA continuation coverage.
  • A plan administrator may take all necessary steps to enroll the child named in the NMSN if coverage is available and the premiums can be deducted with the limits of the Consumer Credit Protection Act (CCPA). Such steps may include changing an employee’s coverage to a different option, even if it affects the employee’s premiums.

IRS Releases Form 8941 Instructions: Credit for Small Employer Health Insurance Premiums

The Internal Revenue Service (IRS) released its instructions for Form 8941 which eligible small employers use to figure the credit for health insurance premiums for tax years beginning after 2009. For tax years beginning after 2013, the credit is only available for period of two consecutive tax years. Generally, the maximum credit is a percentage of premiums that the employer has paid during the tax year for health insurance coverage that the employer provided to certain employees enrolled in a qualified health plan offered through the Small Business Health Options Program (SHOP) Marketplace.

IRS Releases Form W-2 Reporting Guidance for QSEHRAs

The IRS released its Form 8962 with instructions. Form 8962 is used by individual taxpayers to calculate and report a premium tax credit. The instructions provide a reminder to employers who provided a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) to their eligible employees. For each employee covered under its QSEHRA, the employer should report the annual permitted benefit by indicating Code FF in Box 12 of the employee’s Form W-2.

Question of the Month

What code should an employer use for Form 1095-C Line 14 if:

  • the employer offers minimum essential coverage (MEC) providing minimum value (MV) to a full-time employee that is affordable (using the Federal Poverty Level safe harbor for affordability) and
  • the employer offers at least MEC to the employee’s spouse and dependents?

Does the code change if the employee declines coverage because the employee is covered by the spouse’s group health plan?

The employer should use Code 1A in Line 14. The code doesn’t change if the employee waives coverage.

 

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Compliance Bulletin: 2018 Minimum Wage Rates

The current federal minimum wage rate is $7.25 per hour. However, many states have adopted minimum wage rates higher than the federal rate. When the state rate and the federal rate are different, employers must pay their employees the higher rate.

Affected employers should review their employees’ pay rates and update their minimum wage poster notices as necessary to ensure compliance with local wage and hour regulations.

Download the following PDF for helpful charts and tables with wage rate information by state.