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Agencies Issue FAQs Clarifying Wellness Program and Other Health Plan Requirements Related to COVID-19 Vaccines

The DOL, Treasury Department, and HHS have jointly issued a set of FAQs that provide helpful clarifications regarding certain requirements under the CARES Act, the HIPAA nondiscrimination rules (the “Nondiscrimination Rules”), and the Affordable Care Act (the “ACA”) related to COVID-19 vaccines (“Vaccines”).  Wellness Programs under the Nondiscrimination Rules Among other items, the FAQs provide guidance under the Nondiscrimination Rules regarding an employer’s imposition of a premium discount under a wellness program for an individual’s receipt of a Vaccine. If the wellness program is itself, or is part of, a group health plan that is not otherwise exempt from the Nondiscrimination Rules, the FAQs confirm that a premium discount would constitute a “health-contingent, activity-only” wellness program that must, among other requirements, offer a “reasonable alternative standard” to qualify for the discount for individuals for whom it is unreasonably difficult due to a medical condition, or medically inadvisable, to receive the… Continue Reading

Departments Release FAQs about the No Surprises Act and Other Transparency Provisions for Group Health Plans

The DOL, HHS, and Treasury (collectively, the “Departments”) jointly released FAQs addressing the implementation of certain requirements under the No Surprises Act of the Consolidated Appropriations Act of 2021 (the “CAA”), which are generally effective for plan years beginning on or after January 1, 2022, and other transparency provisions of the Affordable Care Act (the “ACA”) and CAA. The FAQs address the following topics: Transparency in Coverage Machine-Readable Files, Price Comparison Tools, Transparency in Plan or Insurance Identification Cards, Good Faith Estimate, Advanced Explanation of Benefits, Prohibition on Gag Clauses on Price and Quality Data, Protecting Patients and Improving the Accuracy of Provider Directory Information, Continuity of Care, Grandfathered Health Plans, and Reporting on Pharmacy Benefits and Drug Costs. Notably, the Departments state in the FAQs that enforcement of the requirement that plans publish machine-readable files relating to certain in-network and out-of-network information will be deferred until July 1, 2022… Continue Reading

New COBRA Subsidy Guidance Addresses Outstanding Issues

The IRS recently issued Notice 2021-46 (the “Notice”), which provides new guidance in the form of FAQs regarding the application of the COBRA premium assistance provisions of the American Rescue Plan Act of 2021 (the “COBRA Subsidy”). The Notice supplements the IRS’s prior Notice 2021-31 regarding the COBRA Subsidy and addresses additional matters. Issues addressed in the Notice include, among others, (i) the availability of the COBRA Subsidy in situations where an individual is entitled to notify the plan administrator, but has not yet done so, of his or her eligibility for an extended COBRA coverage period due to a disability determination or the occurrence of a second COBRA qualifying event, (ii) the loss of an individual’s entitlement to the COBRA Subsidy with respect to dental and vision coverage when he or she becomes eligible to enroll in other group health plan coverage or Medicare that does not provide dental… Continue Reading

Final 2022 ACA Cost-Sharing Limits are Lower Than Proposed Limits

The DOL, HHS, and Treasury recently published FAQs About Affordable Care Act Implementation Part 46 (the ?Ç£FAQs?Ç¥). The FAQs specify that the maximum annual limitations on cost-sharing for the 2022 plan year are (i) $8,700 for self-only coverage, and (ii) $17,400 for other than self-only coverage, which we previously discussed in our blog post here. These final limitations reflect a reduction in the amounts originally proposed by HHS (i.e., $9,100 for self-only coverage and $18,200 for other than self-only coverage), and the FAQs provide an explanation of why the finalized limits are different from the proposed limits. The FAQs are available?áhere.

IRS Issues Additional Guidance Regarding COBRA Premium Subsidy

As we previously reported here, the American Rescue Plan Act of 2021 (?Ç£ARPA?Ç¥) provides a 100% COBRA premium subsidy to any qualified beneficiary who is entitled to COBRA coverage due to an involuntary termination of employment or reduction in hours of employment. Employers will receive a tax credit for the cost of COBRA premiums for April 1 to September 30, 2021. The IRS recently issued FAQs addressing many issues related to the subsidy, including: (i) subsidy eligibility, (ii) what qualifies as a reduction in hours or an involuntary termination of employment, (iii) the type of coverage eligible for the subsidy, (iv) when the subsidy period begins and ends, (v) the extended election period, (vi) coordination with the extended deadlines due to the COVID national emergency (?Ç£Outbreak Period Extensions?Ç¥), (vii) payments to insurers, (viii) application to state continuation coverage, and (ix) calculation and claiming of the subsidy tax credit. One of… Continue Reading

IRS Releases Additional FAQs on Partial Plan Terminations

During the pandemic, many employers laid off and terminated employees as businesses shut-down and then rehired employees when businesses reopened. Employers who sponsored retirement plans and incurred these fluctuations in their workforce risked that the layoffs and terminations could trigger partial retirement plan terminations, which would require 100% vesting of affected participants. Whether a partial plan termination has occurred is generally based on the facts and circumstances, but there is a rebuttable presumption that a partial plan termination has occurred if 20% or more of a plan?ÇÖs active participants have had an employer-initiated termination within a given plan year. In September of 2020, the IRS issued FAQs to clarify that when an employee was terminated and rehired within 2020, they would not be counted for purposes of determining whether a partial plan termination occurred (we reported on this guidance here). Section 209 of the Taxpayer Certainty and Disaster Tax Relief… Continue Reading

Future Mental Health Parity Enforcement Efforts

As discussed in our blog post here, effective as of February 10, 2021, an employer-sponsored group health plan that imposes nonquantitative treatment limitations (?Ç£NQTLs?Ç¥) on mental health or substance use disorder (?Ç£MH/SUD?Ç¥) benefits must have documentation of a ?Ç£comparative analysis?Ç¥ that must demonstrate the NQTLs imposed under the plan for MH/SUD benefits are not more restrictive than the NQTLs that apply to substantially all medical/surgical benefits in a particular classification. Generally, an NQTL is a limitation on the scope of benefits for treatment that is not expressed numerically (e.g., a prior authorization requirement). Recent DOL FAQs state that, in the near term, the DOL expects to focus on the following NQTLs in its enforcement efforts: Prior authorization requirements for in-network and out-of-network inpatient services; Concurrent review for in-network and out-of-network inpatient and outpatient services; Standards for provider admission to participate in a network, including reimbursement rates; and Out-of-network reimbursement rates… Continue Reading

Guidance on Investment Advice Exemption

The DOL?ÇÖs Employee Benefits Security Administration (the ?Ç£EBSA?Ç¥) recently released additional guidance on PTE 2020-02, Improving Investment Advice for Workers and Retirees, a new prohibited transaction exemption under ERISA that was adopted on December 18, 2020 (the ?Ç£Exemption?Ç¥) (see our prior blog posts about the Exemption here and here). The guidance consists of two documents: (i) a publication titled ?Ç£Choosing the Right Person to Give You Investment Advice: Information for Investors in Retirement Plans and Individual Retirement Accounts?Ç¥ (the ?Ç£Investor Guidance?Ç¥), and (ii) a publication titled ?Ç£New Fiduciary Advice Exemption: PTE 2020-02 Improving Investment Advice for Workers & Retirees Frequently Asked Questions?Ç¥ (the ?Ç£Advisor Guidance?Ç¥). The Investor Guidance provides information on the Exemption for investors and includes a list of questions for investors to ask their investment advice providers, as well as a list of investor-focused FAQs. The Advisor Guidance is compliance focused and includes a list of FAQs targeted… Continue Reading

COBRA Premium Assistance FAQs and Model Notices Issued

The DOL?áissued new model notices that may be used in connection with COBRA premium assistance requirements under the American Rescue Plan Act of 2021 (?Ç£ARPA?Ç¥). These model notices include (i) an ARPA General Notice, (ii) a Notice in Connection with Extended Election Periods, (iii) an Alternative Notice, and (iv) a Notice of Expiration of Period of Premium Assistance. The DOL also issued a Summary of ARPA requirements, which the DOL states should be included with the ARPA General Notice, the Alternative Notice, and the Notice in Connection with Extended Election Periods. Use of the model notices is not required. The ARPA General Notice (or its equivalent) should be sent to each COBRA qualified beneficiary (?Ç£QB?Ç¥) who experiences a COBRA qualifying event from April 1, 2021 through September 30, 2021. The FAQs issued in conjunction with the model notices state that the ARPA General Notice must be sent only to those… Continue Reading

IRS Issues New FAQs on Claiming the Employee Retention Credit

The IRS recently issued Notice 2021-20, which contains 71 new FAQs related to the employee retention credit (the ?Ç£ERT?Ç¥) available on qualified wages paid between March 13, 2020 and December 31, 2020. The new FAQs do not address changes to the ERT enacted as part of the Consolidated Appropriations Act, 2021 on qualified wages paid between January 1, 2021 and June 30, 2021, which the IRS says will be addressed in future guidance. The FAQs provide numerous, helpful examples of how to apply key definitions and other provisions applicable to the ERT, such as who is an eligible employer; what constitutes a full or partial suspension of a trade or business, a significant decline in gross receipts, qualified wages, and allocable qualified health plan expenses; and the interaction of the ERT and Paycheck Protection Program loan recipients, among other topics. For additional information on the ERT, please see our prior… Continue Reading

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