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Increase in Civil Monetary Penalties for Violations of HIPAA and ACA

HHS recently issued a final rule (the “HHS Rule”), which sets out the inflation-adjusted civil monetary penalty (“CMP”) amounts that HHS is authorized to assess or enforce, including for violations of HIPAA and the Affordable Care Act (“ACA”). The following adjusted CMP amounts are applicable to violations that occur after November 2, 2015, for which CMPs are assessed on or after March 17, 2022:   Prior Amount Adjusted Amount Violations under a “did not know/would not have known through exercising reasonable diligence” standard Minimum:Maximum:Calendar Year Cap: $120 $60,226 $1,806,757 $127 $63,973$1,919,173 Violations under a “reasonable cause/not willful neglect” standard Minimum:Maximum:Calendar Year Cap: $1,205 $60,226$1,806,757 $1,280 $63,973$1,919,173 Violations under a “willful neglect” standard, with timely correction Minimum:Maximum:Calendar Year Cap: $12,045 $60,226$1,806,757 $12,794 $63,973 $1,919,173 Violations under a “willful neglect” standard, with untimely correction Minimum:Maximum:Calendar Year Cap: $60,226 $1,806,757$1,806,757 $63,973$1,919,173$1,919,173 In addition, the maximum penalty for each failure by a health insurance… Continue Reading

DOL Increases Civil Monetary Penalties for Certain ERISA Violations

The DOL recently issued a final rule that adjusts for inflation the amounts of civil monetary penalties assessed or enforced in its regulations, including for certain ERISA violations. The adjusted penalty amounts apply to penalties assessed after January 15, 2022 and for which the associated violations occurred after November 2, 2015. Some of the penalties that were increased include the following:  The maximum penalty for failing to properly file a pension or welfare benefit plan’s annual Form 5500 increased from $2,259 per day to $2,400 per day. The maximum penalty for failing to provide notices of blackout periods or of the right to divest employer securities increased from $143 per day to $152 per day (each statutory recipient is a separate violation). The maximum penalty for failing to provide employees the required Children’s Health Insurance Program, or CHIP, coverage notices increased from $120 per day to $127 per day (each… Continue Reading

Upcoming Deadlines: Annual Reporting and IRS Filings for ISO Exercises and ESPP Stock Transfers

Employers sponsoring equity incentive plans or tax-qualified employee stock purchase plans (“ESPP”) must fulfill certain year-end information reporting requirements under Section 6039 of the Code with respect to company stock that is either (i) issued to current or former employees upon exercise of an incentive stock option (“ISO”), or (ii) transferred under an ESPP.  The two IRS forms used to satisfy those requirements are: Form 3921, which is required when an individual exercises an ISO. Form 3922, which is required when an individual acquires stock under an ESPP when either the purchase price of the shares (i) was less than the stock’s fair market value on the date of grant, or (ii) was not fixed or determinable on the date of grant. For ISO exercises and ESPP transfers occurring in the 2021 calendar year, employers should file Copy A of the applicable forms with the IRS no later than February… Continue Reading

Illinois State Law Imposes Group Health Coverage Disclosure Requirements

The Illinois Consumer Coverage Disclosure Act (the “CCDA”), which went into effect on August 27, 2021, requires an employer to notify employees in Illinois who are eligible for its group health plan whether such plan does or does not cover each of the essential health benefits identified by the Illinois Department of Labor (the “Illinois DOL”). The list of essential health benefits is available here. Because this is a disclosure requirement and not a benefits mandate, the Illinois DOL maintains that this requirement also applies to self-funded group health plans regulated by ERISA.  Employers must provide this disclosure to eligible employees (i) upon hire, (ii) annually thereafter, and (iii) upon request. The disclosure can be provided by emailing employees or by posting the information on a website that employees can regularly access. The Illinois DOL has the power to conduct inspections in connection with the CCDA’s disclosure requirements, and upon… Continue Reading

IRS Updates Nonqualified Deferred Compensation Audit Technique Guide

The IRS recently updated its Nonqualified Deferred Compensation Audit Technique Guide (the “Updated Guide”), which replaces the previous version published in June 2015. The Updated Guide provides more detailed guidance on the legal standards applicable to deferred compensation arrangements, including the addition of specific citations to relevant regulations and revenue rulings. Notably, the Updated Guide also includes significantly expanded discussions about Code Section 409A and its application to deferred compensation arrangements. Code Section 409A, and other regulations impacting deferred compensation, are very complicated and can carry substantial penalties and taxes for noncompliance. As Congress and the Biden Administration look for additional sources of funding for their initiatives, heightened IRS audit activity may be on the horizon. The Updated Guide is a good reminder to employers that they should periodically review their nonqualified deferred compensation arrangements, not only for documentary compliance but operational compliance as well. The Updated Guide is available… Continue Reading

Supreme Court Rejects Challenge to the Affordable Care Act

On June 17, 2021, the U.S. Supreme Court in California v. Texas rejected a challenge to the Affordable Care Act (the ?Ç£ACA?Ç¥) by holding the plaintiffs lacked standing to bring suit. In 2018, Texas, along with a coalition of over a dozen states and two individuals, brought suit challenging the constitutionality of the individual mandate under the ACA after the penalty for failing to comply was set to zero dollars in 2017. The Supreme Court held that, because the individual mandate is unenforceable, the plaintiffs lacked standing because they had not shown a past or future injury that is fairly traceable. Notably, the Supreme Court did not rule on the constitutionality of the ACA. California v. Texas, 593 U.S. ___ (2021) is available here. 

DOL Increases Civil Monetary Penalties for Certain ERISA Violations

The DOL recently issued a final rule that adjusts for inflation the amounts of civil monetary penalties assessed or enforced in its regulations, including for certain ERISA violations. The adjusted penalty amounts apply to penalties assessed after January 15, 2021 and for which the associated violations occurred after November 2, 2015. Some of the penalties that were increased include the following: The maximum penalty for failing to properly file a pension or welfare benefit plan?ÇÖs annual Form 5500 increased from $2,233 per day to $2,259 per day. The maximum penalty for failing to provide notices of blackout periods or of the right to divest employer securities increased from $141 per day to $143 per day (each statutory recipient is a separate violation). The maximum penalty for failing to provide employees the required Children?ÇÖs Health Insurance Program (CHIP) coverage notices increased from $119 per day to $120 per day (each employee… Continue Reading

Extension of Employment Tax Deadlines

Pursuant to Section 274 of the COVID-related Tax Relief Act of 2020, the IRS recently issued Notice 2021-11 which extends the repayment dates for the payroll tax deferral relief provided under IRS Notice 2020-65 (discussed in our prior blog post here). Under IRS Notice 2020-65, deferred employment taxes had to be withheld and remitted to the IRS in substantially equivalent installments from wages or other compensation paid to employees between January 1, 2021 and April 30, 2021, with interest and penalties on unpaid deferred taxes beginning to accrue on May 1, 2021. Under Notice 2021-11, the timing for withholding and payment of these taxes is extended through December 31, 2021, and the date that interest and penalties begin to accrue on unpaid deferred taxes is delayed until January 1, 2022. Notice 2021-11 is available here.

Ordinary Employee Benefits Issues That Can Cause Extraordinary Problems in M&A Deals

Employee benefits rarely drive corporate transactions, but if the benefits of a target company are not reviewed carefully, they can sometimes derail the transaction.  Even some of the most routine facets of benefit plan administration can result in significant potential financial exposure (e.g., additional employer contributions, taxes, penalties, and fees as well as fees associated with the preparation and filing of IRS and DOL correction program applications) that could negatively affect the overall value of the target company. By identifying issues early in the transaction, the seller can prevent costly purchase price reductions and identify issues that need correction, while the buyer can avoid overpaying for a target and ensure that representation and warranty insurance will be available to cover potential claims. Some of those routine compliance issues include, but are not limited to, the following: Failing to timely file an annual Form 5500.  The DOL can assess a penalty… Continue Reading

Claim Alleging Unauthorized Payroll Deductions for Tobacco Surcharge Preempted by ERISA

In the recent case of Mebane v. GKN Driveline N. Am., Inc., No. 1:18-CV-00892 (M.D.N.C. Nov. 05, 2020), the federal district court held that a claim brought under the North Carolina Wage and Hour Act (?Ç£NCWHA?Ç¥) is preempted by ERISA. The employee-plaintiffs in this case alleged their employer violated the NCWHA by deducting from their paychecks, without express authorization, a monetary penalty for those employees who participate in the employer?ÇÖs group health plan and use tobacco products (i.e., a so-called ?Ç£tobacco surcharge?Ç¥). The defendant-employer filed a motion to dismiss this claim for unauthorized payroll deductions as being preempted by ERISA. The court agreed and dismissed the employees?ÇÖ claim, ruling that it was preempted by ERISA. The court?ÇÖs opinion is available here.

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