IRS Releases Information Letter on Employer Shared Responsibility Penalties under the ACA

An informational letter was just released by the Internal Revenue Services (IRS) in response to an inquiry of whether employer shared responsibility penalties (ESRPs) may be waived or reduced based on hardship or other factors. Read this blog post to learn more.


The Internal Revenue Services (IRS) released an information letter responding to an inquiry of whether employer shared responsibility penalties (ESRPs) may be waived or reduced based on hardship or other factors and whether the IRS will extend the transition relief for employers with fewer than 100 employees.

The letter notes that the law does not provide for waiver of ESRPs. While the IRS provided several forms of transition relief in 2015 and 2016, no transition relief is available for 2017 and future years. Although the January 20, 2017, executive order Minimizing the Economic Burden of the ACA Pending Repeal directs federal agencies to exercise authority and discretion to waive, defer, and grant exemptions from the ACA provisions, the ACA’s legislative provisions are still in force until Congress changes them.

SOURCE: Hsu, K. (7 November 2019) "IRS Releases Information Letter on Employer Shared Responsibility Penalties under the ACA" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/irs-releases-information-letter-on-employer-shared-responsibility-penalties-under-the-aca


IRS Announces Health Insurance Providers Fee to Resume in 2020

Recently, the Internal Revenue Services (IRS) announced that the health insurance providers fee will resume in 2020. This fee is imposed by the Patient Protection and Affordable Care Act (ACA) and was suspended for 2019. Read this blog post from UBA to learn more.


As background, the Patient Protection and Affordable Care Act (ACA) imposes a fee on each covered entity (for example, health insurers or a non-fully insured MEWA) engaged in the business of providing health insurance for United States health risks.

There was a moratorium on the fee for 2017 and there is a suspension on the fee for 2019. Under IRS Notice 2019-50, absent legislative action, the fee will resume for 2020. According to an estimate by the American Academy of Actuaries, the fee will increase premiums by one to three percent in 2020.

SOURCE: Hsu, K. (29 October 2019) "IRS Announces Health Insurance Providers Fee to Resume in 2020" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/irs-announces-health-insurance-providers-fee-to-resume-in-2020


Compliance Recap - October 2019

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

The U.S. District Court for the Northern District of Texas vacated portions of the current rule implementing Section 1557 that prohibit discrimination on the basis of gender identity and pregnancy termination. The U.S. Court of Appeals for the 9th Circuit affirmed a district court’s preliminary injunction of final rules regarding contraceptive coverage exemptions.

The Office for Civil Rights (OCR) and the Office of the National Coordinator for Health Information Technology (ONC) released the latest version of the Department of Health and Human Services (HHS) Security Risk Assessment Tool. The Internal Revenue Service (IRS) updated its webpage that has general information about the CP233J notice. The Treasury released its 2019-2020 Priority Guidance Plan.

UBA Updates

UBA released one new advisor: Health Reimbursement Arrangements Comparison Chart

UBA updated or revised existing guidance:

District Court Vacates Parts of ACA Section 1557 Nondiscrimination Rule

As background, the Patient Protection and Affordable Care Act (ACA) Section 1557 provides that individuals shall not be excluded from participation in, denied the benefits of, or be subjected to discrimination under any health program or activity which receives federal financial assistance from the Department of Health and Human Services (HHS), on the basis of race, color, national origin, sex, age, or disability. The current rule applies to any program administered by HHS or any health program or activity administered by an entity established under Title I of the ACA. These applicable entities are “covered entities” and include a broad array of providers, employers, and facilities. On May 13, 2016, the Department of Health and Human Services (HHS) issued a final rule (current rule) implementing Section 1557, which took effect on July 18, 2016.

On October 15, 2019, the U.S. District Court for the Northern District of Texas (District Court) vacated portions of the current rule implementing Section 1557 that prohibit discrimination on the basis of gender identity and pregnancy termination. The District Court remanded the vacated portions of the current rule to HHS for revision. While those portions of the current rule have been vacated, covered entities subject to Section 1557 may still face private lawsuits for discrimination based on gender identity and pregnancy termination.

Employers who are subject to Section 1557 should stay informed on this litigation because it is anticipated that the District Court’s ruling will be appealed to the Fifth Circuit Court of Appeals.

Please see our UBA Advisors “Update on Nondiscrimination Regulations Relating to Sex, Gender, Age, and More” and “Update on Nondiscrimination Regulations Relating to Sex, Gender, Age, and More – for Health Care Providers” for more information.

Court of Appeals Affirms Preliminary Injunction of Contraceptive Coverage Exemptions Final Rule

As background, 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, including contraceptive services, without cost sharing. The Treasury, Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, the Departments) released two final rules on November 7, 2018, regarding contraceptive coverage exemptions based on religious beliefs and moral beliefs. These rules finalize the Departments’ interim final rules that were published on October 13, 2017.

On January 13, 2019, the U.S. District Court for the Northern District of California (California Court) granted a preliminary injunction that prohibits the final rules’ implementation and enforcement against California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Washington, Virginia, and the District of Columbia. On October 22, 2019, the U.S. Court of Appeals for the 9th Circuit affirmed the California Court’s preliminary injunction that prohibits the two final rules’ implementation and enforcement against the thirteen plaintiff states and the District of Columbia.

Read more about the status of the final rules.

OCR and ONC Release HHS Security Risk Assessment Tool Version 3.1

The Office for Civil Rights (OCR) and the Office of the National Coordinator for Health Information Technology (ONC) have released version 3.1 of the HHS Security Risk Assessment (SRA) Tool. The tool is designed to help small- to medium-sized health care organizations perform risk assessments regarding potential malware, ransomware, and other cyberattacks.

IRS Updates CP233J Notice Webpage

The Internal Revenue Service (IRS) updated its webpage titled “Understanding Your CP233J Notice.” The CP233J notice notifies employers of changes to the amount of the employer shared responsibility payment due to the IRS. The IRS webpage has general information about the notice including what the notice is, what an employer needs to do when it receives the notice, and answers to common questions.

The Treasury Releases 2019-2020 Priority Guidance Plan

The Treasury released its 2019-2020 Priority Guidance Plan (Priority Guidance Plan) that sets forth guidance priorities for the Treasury and the Internal Revenue Service (IRS) during the twelve-month period from July 1, 2019, through June 30, 2020. The Priority Guidance Plan lists several priorities, including guidance under Section 125 on health flexible spending accounts (HFSAs), guidance on contributions to and benefits from paid family and medical leave programs, and guidance on the Cadillac tax.

Question of the Month

Q: Has the Internal Revenue Service (IRS) released the 2020 health flexible spending account (health FSA) contribution limit (also known as the employee deferral limit) or the 1094 / 1095 reporting forms for 2019?

A: No. The IRS has not released the 2020 health FSA contribution limit and has not released the 1094 / 1095 reporting forms for 2019. The IRS has not indicated when it plans to release either the health FSA contribution limit or the 1094 / 1095 reporting forms. At a recent conference, IRS staff (in their unofficial capacity) said that the 1094 / 1095 reporting forms have been delayed, in part, because the IRS is considering whether to change the forms to reflect the fact that the individual mandate’s penalty is $0 as of 2019.

11/1/2019


IRS Publishes Proposed Rules on Affordability Safe Harbors and Nondiscrimination for ICHRAs

Proposed rules clarifying how employer shared responsibility provisions and Section 105(h) nondiscrimination rules apply to HRAs were recently published by the Internal Revenue Service (IRS). Read this informational blog post from UBA to learn more.


The Internal Revenue Service (IRS) published proposed rules clarifying how the employer shared responsibility provisions and Section 105(h) nondiscrimination rules apply to health reimbursement arrangements (HRAs) and other account-based group health plans that are integrated with individual health insurance coverage or Medicare.

Public comments on the IRS’ proposed rules are due by December 30, 2019. Because employers may want to offer individual coverage HRAs beginning on January 1, 2020, before the IRS publishes its final regulations, the IRS provides a time period within which employers may rely on the proposed regulations.

SOURCE: Hsu, K. (22 October 2019) "IRS Publishes Proposed Rules on Affordability Safe Harbors and Nondiscrimination for ICHRAs" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/irs-publishes-proposed-rules-on-affordability-safe-harbors-and-nondiscrimination-for-ichras


DOL Issues Updated Medicaid / CHIP Model Notice

An updated Premium Assistance Under Medicaid and the Children’s Health Insurance Program (CHIP) Model Notice was recently issued by the Department of Labor (DOL). Read this post from UBA to learn more.


The Department of Labor (DOL) issued an updated Premium Assistance Under Medicaid and the Children’s Health Insurance Program (CHIP) Model Notice. Employers should distribute the updated model notice before the start of the plan year if they have any employees in a state listed in the notice.

SOURCE: Hsu, K. (10 October 2019) "DOL Issues Updated Medicaid / CHIP Model Notice" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/dol-issues-updated-medicaid-/-chip-model-notice


Compliance Recap - September 2019

September was a busy month in the employee benefits world.

The U.S. Senate confirmed Eugene Scalia as the new Secretary of the Department of Labor (DOL).

The Internal Revenue Service (IRS) published proposed rules regarding affordability safe harbors and Section 105(h) nondiscrimination rules as applied to individual coverage health reimbursement arrangements (ICHRAs). The IRS also announced that the health insurance providers fee will resume for 2020. The IRS released an information letter regarding transition relief and whether employer shared responsibility penalties may be waived under the Patient Protection and Affordable Care Act.

The DOL, Department of Health and Human Services (HHS), and Treasury (collectively, the “Departments”) released final FAQs on mental health parity.

The DOL issued an opinion letter regarding delaying Family and Medical Leave Act (FMLA) leave. The DOL also issued an opinion letter regarding whether employer contributions to health savings accounts (HSAs) are earnings subject to wage garnishment under the Consumer Credit Protection Act (CCPA).

UBA Updates

UBA released one new advisor: FAQs, Model Disclosure, Fact Sheet on Mental Health Substance Abuse Disorder Parity

UBA updated or revised existing guidance:

IRS Publishes Proposed Rules on Affordability Safe Harbors and Nondiscrimination for ICHRAs

The Internal Revenue Service (IRS) published proposed rules clarifying how the employer shared responsibility provisions and Section 105(h) nondiscrimination rules apply to health reimbursement arrangements (HRAs) and other account-based group health plans that are integrated with individual health insurance coverage or Medicare.

Public comments on the IRS’ proposed rules are due by December 30, 2019. Because employers may want to offer individual coverage HRAs beginning on January 1, 2020, before the IRS publishes its final regulations, the IRS provides a time period within which employers may rely on the proposed regulations.

Read more about the proposed rules.

IRS Announces Health Insurance Providers Fee to Resume in 2020

As background, the Patient Protection and Affordable Care Act (ACA) imposes a fee on each covered entity (for example, health insurers or a non-fully insured MEWA) engaged in the business of providing health insurance for United States health risks. There was a moratorium on the fee for 2017 and there is a suspension on the fee for 2019. Under IRS Notice 2019-50, absent legislative action, the fee will resume for 2020. According to an estimate by the American Academy of Actuaries, the fee will increase premiums by one to three percent in 2020.

Read more about the health insurance providers fee.

IRS Releases Information Letter on Employer Shared Responsibility Penalties under the ACA

The Internal Revenue Services (IRS) released an information letter responding to an inquiry of whether employer shared responsibility penalties (ESRPs) may be waived or reduced based on hardship or other factors and whether the IRS will extend the transition relief for employers with fewer than 100 employees.

The letter notes that the law does not provide for waiver of ESRPs. While the IRS provided several forms of transition relief in 2015 and 2016, no transition relief is available for 2017 and future years. Although the January 20, 2017, executive order Minimizing the Economic Burden of the ACA Pending Repeal directs federal agencies to exercise authority and discretion to waive, defer, and grant exemptions from the ACA provisions, the ACA’s legislative provisions are still in force until Congress changes them.

DOL, HHS, and Treasury Releases Final FAQs on Mental Health / Substance Use Disorder Parity

The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the “Departments”) released final FAQs About Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act Part 39. 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), as amended by the Patient Protection and Affordable Care Act (ACA) and the 21st Century Cures Act (Cures Act). The FAQs contain a model disclosure form that employees can use to request information from their group health plan or individual market plan regarding treatment limitations that may affect access to mental health or substance use disorder (MH/SUD) benefits.

The DOL also released an enforcement fact sheet summarizing the DOL’s closed investigations and public inquiries regarding mental health and substance use disorder during the 2018 fiscal year.

Read more about the FAQs, model disclosure form, and the enforcement fact sheet.

DOL Issues Opinion Letter on Delaying FMLA Leave

The Department of Labor (DOL) issued an opinion letter in response to an inquiry of whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave if the delay complies with a collective bargaining agreement (CBA). The employer is a government public agency subject to CBAs that allow or require employees to delay taking unpaid leave until after the CBA-protected accrued paid leave is exhausted. The CBA-protected leave is treated as continuous employment and does not affect an employee’s seniority status under state civil service rules.

The Department of Labor (DOL) concluded that, under the FMLA, once an employer has enough information to determine that an employee’s leave request qualifies as FMLA leave, the employer must designate the leave as FMLA. The employer may not delay designating paid leave as FMLA leave when leave is requested for an FMLA qualifying reason. The FMLA leave would run concurrently with the CBA-protected leave. Because an employee’s entitlement to benefits (not including health benefits) during a period of FMLA leave is determined by the employer’s policy for providing benefits during other forms of leave, the employee must accrue seniority the same as the employee would if the employee only took CBA-protected leave.

DOL Issues Opinion Letter on CCPA Wage Garnishment Regarding HSAs

The Department of Labor (DOL) issued an opinion letter responding to an inquiry of whether employer contributions to employee health savings accounts (HSAs) constitute earnings for wage garnishment purposes under the Consumer Credit Protection Act (CCPA).

The DOL concluded that employer contributions to HSAs are not earnings under the CCPA for wage garnishment purposes because the contributions do not compensate an employee directly for the amount or value of an employee’s services, are not included in an employee’s take-home pay, and can only be used to reimburse qualified medical expenses without being subject to taxes and penalties.

Question of the Month

Q: We recently received a medical loss ratio (MLR) rebate. How should the money be distributed?

A: If the plan document states how a rebate should be used, then the plan administrator should follow the plan document’s terms.

If the plan document is silent on how the rebate should be distributed, then the following general principles apply.

How should the rebate be divided?

Assuming both the employer and employees contribute to the cost of coverage, the rebate should be divided between the employer and the employees, based on the employer’s and employees’ relative share. Employers may divide the rebate in any reasonable manner – for example, the rebate could be divided evenly among the employees who receive it, or it may be divided based on the employee’s contribution for the level of coverage elected.

Employers are not required to precisely determine each employee’s share of the rebate, and so do not need to perform special calculations for employees who only participated for part of the year, moved between tiers, etc.

Using the example that the rebates are based on premiums paid to the carrier for calendar year 2018, the employer may pay the rebate only to employees who participated in the plan in 2018 and are still participating, only to current participants (even though the rebate relates to 2018), or to those who participated in 2018, regardless whether they are currently participating.

Insurers must send a notice to all employees who participated in the plan in 2018 stating that a rebate has been issued to the employer, so employers who choose to limit rebate payments to those who are currently participating should be prepared to explain why the rebate is only being paid to current participants. This might include the fact that since the rebate would be taxable income, the amount involved does not justify the administrative cost to locate former participants and issue a check.

Are former plan participants entitled to a share of the rebate?

Whether former participants should be included in any rebate allocations depends on the type of plan involved. For ERISA plans, there is no requirement that former participants be included or excluded. However, the Department of Labor’s (DOL) Technical Release, in discussing fiduciary decisions regarding distribution of rebates, states that if a fiduciary determines that the cost of including former participants in a rebate distribution approximates the amount of the rebate, the fiduciary may properly decide to allocate the rebate only to current participants. This means that plan fiduciaries should consider whether to include former participants and should make a prudent decision based on all of the facts and circumstances.

For non-federal governmental plans, the interim final regulations specifically require any portion of a rebate that is based on former participants’ contributions to be aggregated and used for the benefit of current participants.

For nongovernmental, non-ERISA plans, the interim final regulations provide that if the rebate is paid to the policyholder (which is only permissible if the policyholder has given the insurer written assurance that meets the requirements of the regulations), the policyholder must allocate the rebate to current participants only, in the same way as a non-federal governmental plan. If the rebate is paid directly to participants by the insurer (because the policyholder has declined to provide a written assurance), the insurer must distribute the rebate equally among those who were participants during the MLR reporting year on which the rebate is based.

How may the employer use the rebate?

The employer may pay the rebate in cash, use it for a premium holiday, or use it for benefit enhancements. The rebate must be applied or distributed within 90 days after it is received.

A cash rebate is taxable income to the employee if it was paid with pre-tax dollars.

A premium holiday should be completed within 90 days after the rebate is received (or the rebate needs to be deposited into a trust).

Benefit enhancements include reduced copays or deductibles (which may not be practical due to the timing requirements) or wellness-type benefits that the employer would not have offered without the rebate, such as free flu shots, a health fair, a lunch and learn on nutrition or stress reduction, or a nurse line. 

How should the rebate be provided?

The employer should consider the practical aspects of providing a rebate in a particular form.

Generally, the larger the amount that would be due to an individual, the more effort the employer should make to directly benefit the person (either through a cash rebate or premium holiday). While benefit enhancements are permissible, a large rebate should be used to provide a direct benefit enhancement, such as a reduced co-pay, and not for a general benefit, such as flu shots.

The agencies have not provided any details as to what amount is so small that it does not need to be returned to the employee. (Insurers are not required to issue a rebate check to individuals if the amount is less than $5.00.) A cash rebate is taxable income if the premium was paid with pre-tax dollars, so issuing a check that is very small after taxes should not be necessary. If an employer knows it costs $2.00 to issue a check, issuing a rebate check for $1.00 should not be necessary. However, an employer cannot simply keep the rebate if it determines that cash refunds are not practical – it will need to use the employee share of the rebate to provide a benefit enhancement or premium reduction.

10/1/2019


Compliance Recap - August 2019

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

The Department of Labor (DOL) issued its updated Medicaid / CHIP Model Notice. The Centers for Medicare and Medicaid Services (CMS) revised its Medicare Secondary Payer User Guide and changed reporting requirements regarding prescription drug coverage beginning January 1, 2020.

The Treasury, DOL, and Department of Health and Human Services (HHS) issued FAQs regarding enforcement of the Final 2020 Benefit and Parameters Rule. The Internal Revenue Service (IRS) released a private letter ruling addressing whether certain expenses qualify as Section 213(d) medical care expenses.

The DOL issued an advisory opinion addressing whether intermittent Family and Medical Leave Act (FMLA) leave can be taken to attend special education meetings for an employee’s children.

UBA Updates

UBA updated or revised existing guidance:

DOL Issues Updated Medicaid / CHIP Model Notice

The Department of Labor (DOL) issued an updated Premium Assistance Under Medicaid and the Children’s Health Insurance Program (CHIP) Model Notice. Employers should distribute the updated model notice before the start of the plan year if they have any employees in a state listed in the notice.

See the UBA Sample Open Enrollment Notices Packet for the updated model notice.

CMS Requires Prescription Drug Coverage Reporting under Section 111 MSP Reporting

The Centers for Medicare and Medicaid Services (CMS) revised its Section 111 Medicare Secondary Payer (MSP) User Guide and issued FAQs that require responsible reporting entities (RREs) to submit primary prescription drug coverage information as part of their Section 111 MSP Mandatory reporting requirements effective January 1, 2020.

The RRE for reporting primary prescription drug coverage is the entity that has direct responsibility for processing and paying prescription drug claims. In most cases, the RRE will be the insurer or TPA. For example, if the plan sponsor contracts with a third party such as a pharmacy benefits manager (PBM) to administer prescription drug coverage, then the third party or PBM is considered the RRE for prescription drug reporting purposes. However, for self-funded plans that are self-administered, the RRE will usually be the plan administrator.

Treasury, DOL, and HHS Issue FAQs on Enforcement of Final 2020 Benefit and Parameters Rule

On August 26, 2019, the Treasury, Department of Labor (DOL), and the Department of Health and Human Services (HHS) (collectively, the Departments) issued FAQs About Affordable Care Act Implementation Part 40 (FAQs) regarding enforcement of the final rule.

Under the FAQs released after the final rule was published, the Departments will not initiate an enforcement action if an issuer or group health plan excludes the value of drug manufacturers’ coupons from the annual limitation on cost sharing, until the final 2021 benefit payment and parameters rule is issued and effective.

Read more about the FAQs.

IRS Releases Private Letter Ruling Regarding Section 213(d) Medical Care Expenses

The Internal Revenue Service (IRS) released a private letter ruling (Letter) regarding whether the price of a DNA collection kit – specifically services and reports related to a person’s health that are generated from analyzing the collected DNA – qualify as Section 213(d) medical care expenses.

Health services such as genotyping are medical care under Section 213(d) while reports that provide general information are not medical care. The IRS concluded that the DNA collection kit’s price must be allocated between health services that are medical care, such as genotyping, and the non-medical services, such as reports that provide general or ancestry information.

DOL Issues Advisory Opinion on FMLA

The Department of Labor (DOL) issued an advisory opinion regarding whether an employee may take intermittent leave under the Family and Medical Leave Act (FMLA) to attend special education meetings with a speech pathologist, school psychologist, and occupational therapist to discuss the employee’s children’s individualized education programs.

The DOL concluded that the employee’s attendance at the meetings is “care for a family member . . . with a serious health condition” under FMLA and is a qualifying reason for taking intermittent FMLA leave. 

Question of the Month

  1. Under the ACA, if an employer’s size grows, when does the employer need to offer coverage and report on coverage offered?
  2. If the employer employs an average of at least 50 full-time or full-time equivalent employees during calendar year 2019, then it would make offers of coverage in 2020, and report in 2021 on its offers of coverage made in 2020.

The applicable large employer determination is a three-year cycle. For example, an employer’s size, calculated at the conclusion of 2019, determines its obligations for 2020, which it reports on in 2021.

If 2019 is the first time that a company is an applicable large employer, then the company will have until April 1, 2020, 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, 2020.

8/31/2019


IRS Expands Benefits That Can Be Provided Before HDHP Annual Minimum Deductible Is Met

Recently, the Internal Revenue Service (IRS) released a notice that expanded the list of preventative care benefits that a high deductible health plan (HDHP) can provide without a deductible or with a deductible below the annual minimum. Read this post from UBA to learn more.


The Internal Revenue Service (IRS) released a notice, effective on July 17, 2019, that expanded the list of preventive care benefits that a high deductible health plan (HDHP) can provide without a deductible or with a deductible below the annual minimum deductible.

UBA-1000-HDHP_Chart2

The services and items listed above are treated as preventive care:

  • only when prescribed to treat a person diagnosed with the associated chronic condition listed in the table’s second column, and
  • only when prescribed for the purpose of preventing the chronic condition’s exacerbation or a secondary condition’s development.

SOURCE: Hsu, K. (20 August 2019) "IRS Expands Benefits That Can Be Provided Before HDHP Annual Minimum Deductible Is Met" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/irs-expands-benefits-that-can-be-provided-before-hdhp-annual-minimum-deductible-is-met


Compliance Recap - July 2019

July was a busy month in the employee benefits world.

The Internal Revenue Service (IRS) released a notice that expands the list of preventive care benefits a high deductible health plan can provide without a deductible or with a deductible below the annual minimum deductible. The IRS also released the indexed affordability percentage for plan years beginning in 2020.

The U.S. Preventive Services Task Force (USPSTF) published an “A” rating final recommendation. The Department of Health and Human Services (HHS) released an update to the notice requirements for plans using the HHS-administered federal external review process.

A U.S. District Court upheld the 2018 short-term, limited-duration insurance final rule. The Third Circuit Court of Appeals affirmed a federal district court’s preliminary injunction regarding contraceptive coverage exemptions.

The Department of Labor (DOL) released an advisory opinion regarding association health plans (AHPs) and multiple employer welfare arrangements (MEWAs). The Fifth Circuit Court of Appeals held oral arguments for the case challenging the ACA’s constitutionality.

HHS and the Food and Drug Administration (FDA) published a Safe Importation Action Plan regarding potential drug importation from other countries.

UBA Updates

UBA released one new advisor: New HDHP Preventive Care Benefits

UBA updated or revised existing guidance:

IRS Expands Benefits That Can Be Provided Before HDHP Annual Minimum Deductible Is Met

The Internal Revenue Service (IRS) released a notice, effective on July 17, 2019, that expanded the list of preventive care benefits that a high deductible health plan (HDHP) can provide without a deductible or with a deductible below the annual minimum deductible.

Preventive Care for Specified Conditions For Individuals Diagnosed with
Angiotensin Converting Enzyme (ACE) inhibitors Congestive heart failure, diabetes, and/or coronary artery disease
Anti-resorptive therapy Osteoporosis and/or osteopenia
Beta-blockers Congestive heart failure and/or coronary artery disease
Blood pressure monitor Hypertension
Inhaled corticosteroids Asthma
Insulin and other glucose lowering agents Diabetes
Retinopathy screening Diabetes
Peak flow meter Asthma
Glucometer Diabetes
Hemoglobin A1c testing Diabetes
International Normalized Ratio (INR) testing Liver disease and/or bleeding disorders
Low-density Lipoprotein (LDL) testing Heart disease
Selective Serotonin Reuptake Inhibitors (SSRIs) Depression
Statins Heart disease and/or diabetes

The services and items listed above are treated as preventive care:

  • only when prescribed to treat a person diagnosed with the associated chronic condition listed in the table’s second column, and
  • only when prescribed for the purpose of preventing the chronic condition’s exacerbation or a secondary condition’s development.

Read more about the expanded list of preventive care benefits.

IRS Releases the Indexed 2020 Affordability Percentage

The Internal Revenue Service (IRS) released the indexed affordability percentage of 9.78% for plan years beginning in 2020. An employer uses the affordability percentage to determine whether it has offered affordable coverage under the Patient Protection and Affordable Care Act’s employer shared responsibility provisions to avoid Penalty B.

Read more about the affordability percentage.

USPSTF Issues a Final Recommendation Giving PrEP an “A” Rating

The U.S. Preventive Services Task Force (USPSTF) published a final recommendation that gives an “A” rating to preexposure prophylaxis (PrEP) treatment. This means that the USPSTF recommends offering PrEP with effective antiretroviral therapy to people at high risk of HIV acquisition.

Group health plans and insurers subject to the preventive services coverage mandate must provide coverage for evidence-based items or services with an A or B rating recommended by the USPSTF without imposing copayments, coinsurance, deductibles, or other cost-sharing requirements when delivered by in-network providers. Group health plans and insurers subject to the preventive services coverage mandate generally must cover preventive services that are recommended by the USPSTF one year after the recommendation is issued.

HHS Releases Updated Notice Requirements for the HHS Federal External Review Process

On July 12, 2019, the Department of Health and Human Services (HHS) released updated requirements for notices that self-insured non-federal governmental health plans and health insurance issuers – using the HHS-administered federal external review process – must provide to their plan participants and beneficiaries.

District Court Upholds Short-Term Limited Duration Insurance Final Rule

As background, on August 1, 2018, the Internal Revenue Service (IRS), the Department of Health and Human Services (HHS), and the Department of Labor (DOL) (collectively, the Departments) released a final rule that amended the definition of short-term, limited-duration insurance (STLDI). HHS also released a fact sheet on the final rule. The final rule allows consumers to purchase STLDI policies that are less than 12 months in length and may be renewed for up to 36 months.

On July 18, 2019 the U.S. District Court for the District of Columbia (court) upheld the STLDI final rule. The court found that the final rule did not exceed the regulatory authority that Congress delegated to the Departments to define STDLI as a category of insurance that is exempt from individual insurance regulations. Employers should keep apprised of potential future developments as the case may be appealed.

Read more about the STDLI final rule.

Recent Litigation on the Contraceptive Coverage Exemption Rules

As background, the Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, the Departments) published two final rules on November 15, 2018, regarding contraceptive coverage exemptions, to be effective on January 14, 2019. On January 14, 2019, the U.S. District Court for the Eastern District of Pennsylvania (Pennsylvania Court) granted a nationwide preliminary injunction that prohibits the implementation of the two final rules.

On July 12, 2019, the Third Circuit Court of Appeals (appeals court) affirmed the Pennsylvania Court’s preliminary injunction that prohibits the two final rules’ enforcement nationwide. The appeals court found that, until the final rules’ legality is decided, the injunction will allow states to avoid the imminent financial burden of subsidizing contraceptive services, providing funds for medical care associated with unintended pregnancies, and absorbing medical expenses that arise from decreased use of contraceptive medications for other health conditions.

The appeals court decision means that the Departments are prohibited from implementing and enforcing both final rules nationwide.

Read more about the status of the ACA contraceptive coverage mandate and exemption.

DOL Releases Advisory Opinion on AHPs and MEWAs

The Department of Labor (DOL) released an advisory opinion that analyzed a large retailer’s proposed group health plan to determine that the plan would be an association health plan (AHP) and a multiple employer welfare arrangement (MEWA) under ERISA. Although the advisory opinion can only be relied on by the retailer who requested it, the opinion gives employers an overview of the criteria that the DOL reviews when determining whether a plan fits the AHP definition that existed before the DOL’s 2018 AHP final rule. The opinion also provides a summary of the criteria that the DOL reviews when determining whether an arrangement is a MEWA.

Read more about AHPs.

Status of Court Case Challenging ACA Constitutionality

As background, in February 2018, twenty states filed a lawsuit asking the U.S. District Court for the Northern District of Texas (Court) to strike down the Patient Protection and Affordable Care Act (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.

On December 14, 2018, the Court issued a declaratory order that the individual mandate is unconstitutional and that the rest of the ACA is unconstitutional. The Court granted a stay of its December 2018 order, which prohibits the order from taking effect while it is being appealed in the Fifth Circuit Court of Appeals (appeals court).

On July 3, 2019, the Department of Justice filed its supplemental brief to assert that the court decision striking down the ACA should not apply beyond the 18 plaintiff states. On July 9, 2019, the appeals court held oral arguments.

HHS and FDA Release Safe Importation Action Plan

The Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) issued a Safe Importation Action Plan that overviews two pathways that could permit drug importation from foreign countries. HHS also issued a press release.

Under the first pathway, HHS would propose rules to allow states, wholesalers, and pharmacists to submit demonstration project plans designed to: import Canadian-approved drugs that are versions of FDA-approved drugs; meet certain conditions such as drug quality, record keeping, testing, and protections against counterfeiting; and significantly reduce consumer drug cost.

Under the second pathway, manufacturers of FDA-approved drugs could import versions of FDA-approved drugs that they sell in foreign countries, if they establish with the FDA that the foreign version is the same as the U.S. version.

Question of the Month

Q: What if a plan sponsor fails to file or pay the PCORI fee?

A: 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 penalties for failure to file a tax return because the PCORI fee is an excise tax.

A 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 had 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.

8/1/2019


PCORI Fee Is Due by July 31 for Self-Insured Health Plans

Patient-Centered Outcomes Research Institute (PCORI) annual fees are due by July 31, 2019. Plans with terms ending after September 30, 2012, and before October 1, 2019, are required to pay an annual PCORI fee. Read this article from SHRM to learn more.


An earlier version of this article was posted on November 6, 2018

The next annual fee that sponsors of self-insured health plans must pay to fund the federal Patient-Centered Outcomes Research Institute (PCORI) is due July 31, 2019.

The Affordable Care Act mandated payment of an annual PCORI fee by plans with terms ending after Sept. 30, 2012, and before Oct. 1, 2019, to provide initial funding for the Washington, D.C.-based institute, which funds research on the comparative effectiveness of medical treatments. Self-insured plans pay the fee themselves, while insurance companies pay the fee for fully insured plans but may pass the cost along to employers through higher premiums.

The IRS treats the fee like an excise tax.

The PCORI fee is due by the July 31 following the last day of the plan year. The final PCORI payment for sponsors of 2018 calendar-year plans is due by July 31, 2019. The final PCORI fee for plan years ending from Jan. 1, 2019 to Sept. 30, 2019, will be due by July 31, 2020.

In Notice 2018-85, the IRS set the amount used to calculate the PCORI fee at $2.45 per person covered by plan years ending Oct. 1, 2018, through Sept. 30, 2019.

The chart below shows the fees to be paid in 2019, which are slightly higher than the fees owed in 2018. The per-enrollee amount depends on when the plan year ended, as in previous years.

Fee per Plan Enrollee for Payment Due
July 31, 2019
Plan years ending from Oct. 1, 2018, through Sept. 30, 2019. $2.45
Fee per Plan Enrollee for Payment Due
July 31, 2018
Plan years ending from Oct. 1, 2017, through Dec. 31, 2017, including calendar-year plans. $2.39
Plan years ending from Jan. 1, 2017, through Sept. 30, 2017 $2.26
Source: IRS.

Nearing the End

The PCORI fee will not be assessed for plan years ending after Sept. 30, 2019, "which means that for a calendar-year plan, the last year for assessment is the 2018 calendar year," wrote Richard Stover, a New York City-based principal at HR consultancy Buck Global, and Amy Dunn, a principal in Buck's Knowledge Resource Center.

For noncalendar-year plans that end between Jan. 1, 2019 and Sept. 30, 3019, however, there will be one last PCORI payment due by July 31, 2020.

"There will not be any PCORI fee for plan years that end on October 1, 2019 or later," according to 360 Corporate Benefit Advisors.

The PCORI fee was first assessed for plan years ending after Sept. 30, 2012. The fee for the first plan year was $1 per plan enrollee, which increased to $2 per enrollee in the second year and was then indexed in subsequent years based on the increase in national health expenditures.

FSAs and HRAs

In addition to self-insured medical plans, health flexible spending accounts (health FSAs) and health reimbursement arrangements (HRAs) that fail to qualify as “excepted benefits” would be required to pay the per-enrollee fee, wrote Gary Kushner, president and CEO of Kushner & Co., a benefits advisory firm based in Portage, Mich.

As set forth in the Department of Labor's Technical Release 2013-03:

  • health FSA is an excepted benefit if the employer does not contribute more than $500 a year to any employee accounts and also offers a group health plan with nonexcepted benefits.
  • An HRA is an excepted benefit if it only reimburses for limited-scope dental and vision expenses or long-term care coverage and is not integrated with a group health plan.

Kushner explained that:

  • If the employer sponsors a fully insured group health plan for which the insurance carrier is filing and paying the PCORI fee and the same employer sponsors an employer-funded health care FSA or an HRA not exempted from the fee, employers should only count the employees participating in the FSA or HRA, and not spouses or dependents, when paying the fee.
  • If the employer sponsors a self-funded group health plan, then the employer needs to file the form and pay the PCORI fee only on the number of individuals enrolled in the group health plan, and not in the employer-funded health care FSA or HRA.

An employer that sponsors a self-insured HRA along with a fully insured medical plan "must pay PCORI fees based on the number of employees (dependents are not included in this count) participating in the HRA, while the insurer pays the PCORI fee on the individuals (including dependents) covered under the insured plan," wrote Mark Holloway, senior vice president and director of compliance services at Lockton Companies, a benefits broker and services firm based in Kansas City, Mo. Where an employer maintains an HRA along with a self-funded medical plan and both have the same plan year, "the employer pays a single PCORI fee based on the number of covered lives in the self-funded medical plan (the HRA is disregarded)."

Paying PCORI Fees

Self-insured employers are responsible for submitting the fee and accompanying paperwork to the IRS, as "third-party reporting and payment of the fee is not permitted for self-funded plans," Holloway noted.

For the coming year, self-insured health plan sponsors should use Form 720 for the second calendar quarter to report and pay the PCORI fee by July 31, 2019.

"On p. 2 of Form 720, under Part II, the employer needs to designate the average number of covered lives under its applicable self-insured plan," Holloway explained. The number of covered lives will be multiplied by $2.45 for plan years ending on or after Oct. 1, 2018, to determine the total fee owed to the IRS next July.

To calculate "the average number of lives covered" or plan enrollees, employers should use one of three methods listed on pages 8 and 9 of the Instructions for Form 720. A white paper by Keller Benefit Services describes these methods in greater detail.

Although the fee is paid annually, employers should indicate on the Payment Voucher (720-V), located at the end of Form 720, that the tax period for the fee is the second quarter of the year. "Failure to properly designate 'second quarter' on the voucher will result in the IRS's software generating a tardy filing notice, with all the incumbent aggravation on the employer to correct the matter with the IRS," Holloway warned.

A few other points to keep in mind: "The U.S. Department of Labor believes the fee cannot be paid from plan assets," he said. In other words, for self-insured health plans, "the PCORI fee must be paid by the plan sponsor. It is not a permissible expense of a self-funded plan and cannot be paid in whole or part by participant contributions."

In addition, PCORI fees "should not be included in the plan's cost when computing the plan's COBRA premium," Holloway noted. But "the IRS has indicated the fee is, however, a tax-deductible business expense for employers with self-funded plans," he added, citing a May 2013 IRS memorandum.

SOURCE: Miller, S. (2 July 2019) "PCORI Fee Is Due by July 31 for Self-Insured Health Plans" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/2019-pcori-fees.aspx