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IRS Increases Dollar Amount Basis of PCORI Fee

The IRS recently issued Notice 2022-4, which increases the dollar amount that is the basis of the fee established under the Affordable Care Act to help fund the Patient-Centered Outcomes Research Institute (the “PCORI Fee”). The PCORI Fee is imposed on plan sponsors of applicable self-funded health plans and issuers of specified health insurance policies. The PCORI Fee is based on a flat dollar amount multiplied by the average number of lives covered under the plan for the applicable plan year. The dollar amount for plan and policy years that ended on or after October 1, 2020 and before October 1, 2021, was $2.66. Notice 2022-4 increases the dollar amount for plan and policy years that end on or after October 1, 2021 and before October 1, 2022, to $2.79. IRS Notice 2022-4 is available here.

Elective Deferral Election Records – Plan Sponsors Proceed With Caution

In a time when most employees make their 401(k) plan elective deferral elections electronically, plan sponsors often do not think twice about maintaining records of employee deferral elections, since they expect their third party administrators (“TPAs”) will retain such electronic records. However, this confidence in the TPA’s records can be a trap for the unwary, as mistakes in the transmission of elections from the TPA to the employer’s payroll can easily occur, and the elections for long-standing employees may have been entered manually based on paper election forms that could have long since been misplaced (or destroyed in accordance with a TPA’s record retention policies). Further, if the plan sponsor has changed TPAs, the current TPA’s records for participants prior to the conversion are based on the records of the prior TPA and may no longer be accessible following conversion to the new TPA.  A lack of reliable records can… Continue Reading

Retirement Plan Death Beneficiary Provisions that Reduce Potential Liability

When a retirement plan participant dies without a valid beneficiary designation on file, death benefits will typically be paid pursuant to the plan’s default beneficiary provisions. These provisions should be drafted to avoid placing an undue burden on the plan administrator (which is often the plan sponsor). When the plan document requires the plan administrator to determine a participant’s heirs, the process of administering the death benefit can be costly and time-consuming and may lead to the risk that the plan will have to pay a duplicate benefit. For example, a duplicate payment could result because children from a previous marriage were overlooked, the participant remarried after terminating employment, or competing heirs provide incomplete or misleading information. However, plans can be drafted to provide that the default beneficiary is the participant’s surviving spouse, and if there is no spouse, the participant’s estate. If the estate is not probated, the risk should be shifted from… Continue Reading

Required Minimum Distributions Resume December 31st

The IRS recently issued a news release reminding retirement plan participants that required minimum distributions (“RMDs”) must be made by December 31st. RMDs are minimum amounts that must be distributed to a retirement plan participant each year beginning with the year in which such participant attains age 72 (age 70½ if the participant attained 70½ before January 1, 2020) or, if later, the year in which the participant retires. If the participant is a 5% owner of the employer sponsoring the retirement plan, RMDs must begin once the participant attains age 72 (or 70½ if the participant attained age 70½ before January 1, 2020), regardless of retirement status. The CARES Act waived the RMD requirement for 2020, including the RMD that was payable on or before April 1, 2021, for a participant with a required beginning date of April 1, 2021. A participant who attained age 70½ in 2019 (the… Continue Reading

New Federal Reporting Requirements for Prescription Drug and Health Care Spending

The Consolidated Appropriations Act of 2021 (“CAA”) requires employer-sponsored group health plans to submit certain information about prescription drug and health care spending, premiums, and enrollment to HHS, the DOL, and the Treasury on an annual basis. Interim final rules were issued implementing this requirement, with enforcement delayed so that reporting for 2020 and 2021 is not due until December 27, 2022. However, employers are advised to contact their third party administrators and pharmacy benefit managers soon to determine if they will submit these reports on behalf of the group health plan and will be ready to do so by the deadline.  Although an employer with a self-funded group health plan may contract with a third party administrator and/or pharmacy benefit manager to handle these reporting requirements, the employer remains liable if there is a compliance failure.  The interim final rules are available here. 

HIPAA Breach by Express Scripts Vendor Triggers Plan Sponsor Actions

Many employers that sponsor a group health plan which is a “covered entity” subject to the HIPAA privacy and security rules have recently received notice from Express Scripts, Inc., a pharmacy benefit manager (“ESI”), regarding a cyberattack on the computer network of its subcontractor, Medical Review Institute of America (“MRIA”). This cyberattack apparently resulted in a HIPAA breach of current or former participants’ protected health information (“PHI”) under the plans. The breach notices were sent to the employers by ESI in its capacity as a HIPAA business associate of the plans.  A breach of unsecured PHI triggers notification obligations on the part of covered entities under HIPAA’s breach notification regulations (the “Breach Rules”), including (i) notifications to the individuals whose PHI was involved in the breach (the “Impacted Individuals”), and (ii) notification to HHS. Such notifications are subject to specific requirements of the Breach Rules, including content and timing requirements.   ESI’s… Continue Reading

SEC Staff Issues Guidance on Valuing and Disclosing Spring-Loaded Compensation Awards

The SEC recently released guidance in Staff Accounting Bulletin No. 120 (the “Guidance”) regarding the recognition and disclosure of compensation costs for “spring-loaded” awards granted to executives. Spring-loaded awards are equity-based compensation arrangements granted by a company shortly before the company announces market-moving information (“Material Non-Public Information”), such as an earnings release with better-than-expected results or the disclosure of a significant transaction. According to the Guidance, when these grants are not routine, SEC staff believes companies should take into account the impact of such Material Non-Public Information when measuring the value of such spring-loaded awards. In particular, SEC staff believes the measured value of spring-loaded compensation may need to be adjusted when companies grant such awards while in possession of positive Material Non-Public Information. Notably, SEC staff advises that, “companies should not grant spring-loaded awards under any mistaken belief that they do not have to reflect any of the additional… Continue Reading

IRS Proposes Permanent Extension to Furnish Forms 1095 and Elimination of Good Faith Transition Relief

The IRS recently issued proposed regulations providing an automatic 30-day extension of the January 31st due date for furnishing Forms 1095-B and 1095-C to individuals, as required for compliance with the Affordable Care Act. In prior years, the IRS granted similar relief for employers to provide these forms to individuals; however, the proposed regulations would make this extension permanent, beginning with reporting due for the 2021 tax year. Consistent with prior IRS guidance, the proposed regulations do not extend the due date to file Forms 1094-B, 1095-B, 1094-C, or 1095-C with the IRS, which are due by February 28th (March 31st if filed electronically). In addition, the proposed regulations eliminate the good-faith transition relief from penalties that apply for incorrect or incomplete information reported on those forms, as furnished to individuals or filed with the IRS, for the 2021 tax year and subsequent years. The proposed regulations are available here.

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