Time Is On My Side: Some Retirement Plan Amendment Deadlines Pushed Back

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by Brenda Berg

The IRS has given plan sponsors more time to adopt some – but apparently not all – retirement plan amendments reflecting law changes in the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), the Bipartisan Miners Act of 2019 (Miners Act), and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Notice 2022-23, issued August 3, 2022, generally provides that the deadline to adopt these amendments is extended to December 31, 2025. This is the deadline for qualified plans regardless of the plan year, and this deadline also applies to 403(b) plans and collectively bargained plans. Governmental plans generally have until 90 days after the third regular legislative session of the body with the authority to amend the plan that begins after December 31, 2023. Read more

I’m Leaving On A Jet Plane…Is Abortion Care Travel a Covered Benefit?

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by Benjamin Gibbons

The focus of this week’s post is on an emerging hot topic, abortion care travel reimbursement. Reimbursement for travel to obtain abortion care was already something being considered by a number of companies in response to the recent Texas fetal heartbeat law and similar laws in other states. With the recently leaked Supreme Court draft opinion that stands to overturn Roe v. Wade, both the need for such a benefit and employers’ interest in offering travel reimbursements has increased significantly. If Roe is overturned, access to abortions will be largely prohibited in the 13 states with so called “trigger laws” and could be significantly restricted in at least 13 other states. Read more

It’s So Easy To … Put Your Employees’ HSAs at Risk

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by Elizabeth Nedrow

Whether you’re a fan of the Buddy Holly version or Linda Ronstadt’s, you’ve got to admit “It’s so easy to fall in love” is a catchy tune. Just as it’s easy to get that song stuck in your head, it’s also easy to put your employee’s health savings accounts (HSAs) at risk!

HSAs are one of the many “consumer directed” programs that are touted as putting employee’s health care within their own control. The idea is that if consumers have an amount of money to spend on their own healthcare, they’ll be savvy about what services they seek and how much they spend on them, with the ultimate goal of making the healthcare marketplace more efficient. Congress gives tax advantages to accounts that qualify as HSAs in order to encourage employers to offer and employees to maintain them. Read more

What Happens in a Small Town Stays in a Small Town … Until the DOL Doubles Down on Mental Health Parity Compliance

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by Alex Smith

The Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Department of Treasury (collectively, the Departments) recently issued their joint report to Congress regarding their Mental Health Parity and Addiction Equity Act (MHPAEA) enforcement activities as required under the MHPAEA and the Consolidated Appropriations Act, 2021 (CAA). The report contained insights regarding the DOL’s enforcement of the new MHPAEA reporting and disclosure requirements related to non-quantitative treatment limitations (NQTLs) established by the CAA. For additional information about the CAA’s new MHPAEA reporting and disclosure requirements, please see our previous blog post (as well as earlier blog posts). Read more

Talk About Bruno . . . Health Plan Premium Surcharges & Vaccination Status

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By Kevin Selzer

Last week, the US Supreme Court blocked the OSHA standard requiring private employers with 100 employees or more to vaccinate-or-test for COVID-19 from taking effect (more info here). With the fate of that standard likely sealed, employers may soon give thought to other strategies to incentivize workers to become vaccinated and/or boosted. Employers with self-funded health plans might consider charging unvaccinated (or unboosted) workers a higher premium for that health coverage. Or perhaps, it would be more appropriate to say “reconsider” that approach.    Read more

No More Mister Nice Guy…No More “Good-Faith” Relief for ACA Reporting Requirements

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by Becky Achten

The good news is that the deadline to furnish individuals with the Form 1095-C or Form 1095-B reporting health care coverage in 2021 has been extended to March 2, 2022. The bad news is that the days of good-faith relief are over. You better get them right this year!

Contrary to its stance taken in Notice 2020-76, the Internal Revenue Service (IRS) issued proposed regulations to permanently extend the due date for providing the Form 1095-C (applicable to large employers) and the Form 1095-B (generally applicable to insurance carriers) to participants. Employers and insurers can take advantage of the extension for the 2021 reporting season before the regulations become final. This does not, however, change the deadline for filing the forms with the IRS, which remains February 28, 2022 for paper submissions and March 31, 2022 for electronic filings. Read more

Ooh Baby It’s a Wild World…Your Vaccination Status: What Does HIPAA Actually Protect and Prohibit

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by Leslie Thomson

Earlier this fall, the Office for Civil Rights (OCR) issued guidance to help the public understand when a business or employer can request information on an individual’s COVID-19 vaccination status without violating the HIPAA Privacy Rule. This blog addresses the impact of the HIPAA Privacy Rule only. Note there may be other federal or state laws that may apply resulting in a different conclusion.

The HIPAA Privacy Rule does not apply to employment records and generally does not regulate what information can be requested by an employer from employees as part of the terms and conditions of employment that an employer may impose on its workforce. For example, the HIPAA Privacy Rule does not prohibit an employer from requiring or requesting each workforce member to:

  • Provide documentation of their COVID-19 or flu vaccination.
  • Sign a HIPAA authorization for a covered health care provider to disclose the workforce member’s COVID-19 vaccination record to their employer.
  • Wear a mask while in the employer’s facility, on the employer’s property, or in the normal course of performing their duties at another location.

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I Feel Good… I Knew That I Would… Wellness Program Reminders

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by Alex Smith

With employers considering the imposition of health plan premium surcharges on participants who are COVID unvaccinated, a recent court decision highlights the importance of complying with the HIPAA wellness program requirements.

A federal district court in Ohio recently rejected a portion of Macy’s motion to dismiss the Department of Labor’s (DOL’s) enforcement action with respect to the tobacco surcharges on health plan premiums Macy’s imposed as part of its wellness program.  In its enforcement action, the DOL focused on the lack of a reasonable alternative standard for some of the years covered by the enforcement action and the lack of retroactively refunding the surcharge to participants who earned the right to avoid the surcharge later in the plan year for certain years in which a reasonable alternative standard was made available. As background, health contingent wellness programs are required to provide a reasonable alternative standard for earning the incentive (avoiding the surcharge) under HIPAA. Read more

Stronger . . . Services Agreements for Benefit Plans

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By Kevin Selzer

With the exception of certain small businesses, being an employer generally means offering an array of benefits to remain competitive in the worker marketplace.  As the employer grows, typically so does the list of employee benefit plans being offered.  This naturally translates into more service providers, and for good reason.  Employers typically don’t possess the knowledge and skillset to offer these benefits in-house, and ERISA, which applies to most employee benefit arrangements, requires the plans to be administered in accordance with some of the highest standards of care under law. As a result, employers are frequently hiring and replacing service providers.

Today’s post focuses on some tips for employers in a sometimes-overlooked aspect of the process of hiring a service provider – the contract between the employer and the provider.  In concept, the service provider agreement is relatively simple – it needs to set out each party’s role and responsibility in delivering the employee benefit.  As always though, the devil is in the details.  Below are some tips for employers:

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This is the End: Employers Must Provide Notice of the Expiring COBRA Subsidy Period

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by Brenda Berg

The COBRA subsidy from COVID-19 stimulus bill – The American Rescue Plan Act of 2021 (ARPA) – is nearing an end and in many cases requires employers to provide notices by September 15. The COBRA subsidy covered 100% of COBRA premiums for assistance-eligible individuals for periods of coverage beginning on or after April 1, 2021 through September 30, 2021. We previously covered the details of the subsidy in these posts: These Boots Are Made For Walking…But If You Quit, You Might Not Get the COBRA Subsidy and Lean on Me…New Guidance on Federal COBRA Subsidy. Because eligible individuals have 60 days to elect COBRA, there are still a couple months of coverage periods for which individuals may still be able to elect the subsidy. Read more