As 2017 comes to an end, we are pleased to present our traditional End of Year Plan Sponsor “To Do” Lists. This year, we are presenting our “To Do” Lists in four separate Employee Benefits Updates. This Part 1 will cover year-end health and welfare plan issues. Parts 2, 3, and 4 will cover executive compensation issues, qualified plan issues, and cost-of-living increases, but not necessarily in that order. We are publishing Part 1 earlier than normal to make it align with fall open enrollment. We expect to publish the other three Parts in late October or early November. Each Employee Benefits Update provides a “To Do” List of items to consider taking action on before the end of 2017 or in early 2018. As always, we appreciate your relationship with Snell & Wilmer and hope that these “To Do” Lists can help focus your efforts over the next few months.

This List does not address the various health care reform proposals that have been the subject of debate in 2017 or the Executive Order that President Trump signed on October 12, 2017 titled “Promoting Healthcare Choice and Competition Across the United States.” As of the date of this Employee Benefits Update, no significant changes have been made to the Affordable Care Act (“ACA”) since President Trump took office. When, and if, changes are made, we will publish additional newsletters and blogs highlighting those changes.

Part 1 - Health & Welfare Plans “To Do” List

• Comply with Large Employer Shared Responsibility Rules if Applicable, or Pay Penalties: Many employers were hopeful that the Code Section 4980H penalties would be repealed now that Republicans control Congress. To date, that has not happened, nor has the Internal Revenue Service (“IRS”) announced it will not enforce these penalties. In fact, in recently issued Information Letters, the IRS indicated that the ACA Executive Order signed by President Trump when he first took office “does not change the law; the legislative provisions of the ACA are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe.” Based on the foregoing, employers are wise in acting as though these rules remain in effect and the penalties will be enforced. That being the case, 2018 will be the fourth year large employers are operating under the large employer shared responsibility penalties. Large employers are subject to penalties if any full-time employee receives a premium tax credit or cost-sharing reduction and either: (a) the employer fails to offer minimum essential health coverage to 95% of its full-time employees (and their dependents); or (b) the employer offers minimum essential health coverage to 95% of its full-time employees (and their dependents), but the coverage is either not affordable or does not provide minimum value. Missing the 95% test even slightly, for example, coming in at 94%, will require the employer to pay a $2,000 annual penalty for each full-time employee (minus the first 30 full-time employees). The rules are explained in more detail in our Health Care Reform’s Employer Shared Responsibility Penalties: A Checklist for Employers. Below are important penalties, percentages, and premiums under Code Section 4890H:
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  Code Section 4980H Adjusted Penalties, Affordability Percentages, and Federal Poverty Level (“FPL”) Allowable Premium
  	2016	2017	2018
  Code Section 4980H(a) penalty for failing 95% offer of coverage test	$2,160 annual or $180 monthly	$2,260 annual or $188.33 monthly	$2,320 annual or $193.33 monthly (projected amounts, not yet confirmed by IRS)
  Code Section 4980H(b) penalty for coverage failing to be minimum value and affordable	$3,240 annual or $270 monthly	$3,390 annual or $282.50 monthly	$3,480 annual or $290 monthly (projected amounts, not yet confirmed by IRS)
  Code Section 4980H affordability percentage for W-2, rate of pay, and FPL safe harbors	9.66%	9.69%	9.56%
  FPL compensation amount posted in January for 48 Contiguous United States (FPLs are higher for Alaska and Hawaii)	$11,880	$12,060	To be announced in January 2018
  FPL monthly allowable premium for calendar year plans (using FPL for 48 contiguous United States)	$11,770 x 9.66%/12 =$94.74 or $11,880 x 9.66%/12 =$95.63	$11,880 x 9.69%/12 =$95.93 or $12,060 x 9.69%/12 =$97.38	$12,060 x 9.56%/12 =$96.07 or $_______ x 9.56%/12 =$_____* * This amount cannot be calculated until January 2018 FPLs are published

• Consider Amendments to Align Plan with Code Section 4980H Full-Time Employee Determinations: Many employers are now making eligibility determinations under their health plans align with full-time employee status under Code Section 4980H. Employers who do so may need to amend their health plans to reflect these complicated eligibility rules. Employers may also need to consider how to administer COBRA if they are using the look-back measurement method to determine full-time status under Code Section 4980H.
• Do Code Section 6055 and 6056 Reporting:
• All Employers with Self-Insured Health Plans Must Report Minimum Essential Coverage (“MEC”): Section 6055 of the Internal Revenue Code (the “Code”), which was added by the ACA, requires all entities providing MEC to submit information concerning each covered individual for the calendar year to the IRS and to certain covered individuals. MEC is broadly defined to include any group health plan or group health insurance that is not an excepted benefit (e.g., stand-alone dental or vision plan). Reporting is again required in early 2018 for coverage offered in 2017. The deadlines for this reporting are set out below. Unlike Section 6056 (discussed below), all employers sponsoring self-insured health plans must report on all covered employees, regardless of the size of the employer or the status of the covered employee (e.g., part-time). Employers sponsoring insured health plans are not required to comply because the insurance company must complete the reporting. However, such employers may need to collect and provide employee information to the insurer so that the insurer can meet its Section 6055 obligations. Generally, entities reporting under Section 6055 must use Form 1094-B (the IRS transmittal form) and Forms 1095-B (individual statements). Large employers sponsoring self-insured health plans may use combined reporting to comply with both Section 6055 and Section 6056 by completing one form per individual, permitting large employers sponsoring self-insured health plans to disregard Forms 1094-B and 1095-B. Draft instructions for 2017 Section 6055 reporting can be accessed here.
• Large Employers Must Report on Health Coverage Offered to Full-Time Employees: Section 6056 of the Code, which was also added by the ACA, requires applicable large employers to report to the IRS information regarding health coverage offered to full-time employees for each calendar year. Reporting is again required in early 2018 for coverage offered in calendar year 2017. The deadlines for this reporting are set out below. Additionally, applicable large employers must provide individual statements to each full-time employee regarding the type of coverage that was offered to that employee during 2017. All applicable large employers must comply, regardless of whether the employer sponsors a self-insured or fully insured health plan, or if the employer does not offer health coverage to its employees. Employers must use Form 1094-C and Forms 1095-C to complete this reporting. Draft instructions for 2017 Section 6056 reporting can be accessed here.
• Reporting Deadlines: While the IRS provided an extended deadline for certain information reporting under Sections 6055 and 6056 for offers of coverage made in 2016, such extension does not apply for reporting offers of coverage for 2017. Instead, the following deadlines apply:

• Section 6055: Health Coverage Reporting
  Form	Filing Deadline
  Form 1095-B (to employees)	January 31, 2018
  Form 1094-B (to IRS)	February 28, 2018 (paper filing)April 2, 2018* (electronic filing)

  Section 6056:Employer-Provided Health Insurance Offer and Coverage Reporting
  Form	Filing Deadline
  Form 1095-C (to employees)	January 31, 2018
  Form 1094-C (to IRS)	February 28, 2018 (paper filing)April 2, 2018* (electronic filing)

  * Note that the regular March 31 reporting deadline for filing electronically with the IRS falls on a weekend. Accordingly, that filing deadline is pushed to the next business day, April 2.

• Health Care Exchange Changes: Employers have started to realize that Health Care Exchanges may benefit their employees and former employees. For example, coverage under a Health Care Exchange may sometimes be cheaper than COBRA coverage under the employer’s group health plan. The fate of the Health Care Exchanges is still uncertain as Congress battles over health care reform. However, we do know the following, which may impact employer communications about the Health Care Exchanges:
• Shorter Open Enrollment Periods for 2018: The Trump administration has announced there will be a 45-day open enrollment period to sign up for Health Care Exchange coverage. The open enrollment period for 2018 will run from November 1 to December 15, 2017. Coverage sold during the open enrollment period takes effect January 1, 2018.
• Tightening of Special Enrollment Periods: In order to sign up for Health Care Exchange coverage outside of the annual open enrollment period, individuals must experience a “qualifying event,” and sign up for coverage within 60 days. The Trump administration is enforcing these rules more strictly than before, requiring proof of qualifying events. Employers may be required to provide proof of qualifying events to employees, such as termination of employment, so they can enroll in Health Care Exchange coverage.
• Health Reimbursement Arrangements: The impact of the ACA on health reimbursement arrangements (“HRAs”) has not been favorable. Many employers got rid of HRAs, or integrated them with a major medical plan, in order to avoid significant penalties under the ACA. Employers who sponsor HRAs should review them to make sure that they comply with the piecemeal changes that have taken place since the ACA was first enacted. For example, at one point it appeared that after-tax HRAs did not have to comply with the ACA. However, as noted in our March 11, 2015 SW Benefits Blog, “IRS Issues More Guidance On Employers That Pay For Individual Health Insurance Policies for Employees – Gives Limited Relief to Small Employers,” the IRS clarified that after-tax HRAs are also subject to the ACA. Two noteworthy changes in the last couple years that impact HRAs include the following:
• Small Employers May Offer QSEHRAs: ACA rules imposed a significant burden on small employers, because many small employers used HRAs to reimburse employees for the cost of individual health insurance policies rather than sponsor a group health plan. In IRS Notice 2015-17, Q&A-1, the IRS granted limited relief for small employer HRAs through June 30, 2015. However, at the end of 2016, small employers received greater relief in the form of the 21st Century Cures Act (the “Cures Act”). The Cures Act, enacted on December 13, 2016, introduced a new type of tax-preferred arrangement that small employers may use to help their employees pay for medical expenses called “qualified small employer health reimbursement arrangement” or “QSEHRAs.” In addition, the Cures Act extends the relief under Q&A-1 of Notice 2015-17 for plan years beginning on or before December 31, 2016. Only small employers that do not offer a group health plan to any of their employees may offer a QSEHRA. This means that the employer, on a controlled group basis, may not be an applicable large employer under Code Section 4980H(c)(2). Therefore, an employer that employed at least 50 full-time employees, including full-time equivalent employees, in the prior calendar year may not offer a QSEHRA to its employees. For more information about QSEHRAs, see our February 22, 2017 blog, Curing What Ails You – Relief for Small Employer HRAs.
• Family Integration of HRAs: On December 16, 2015, the IRS issued IRS Notice 2015-87, which further complicated the administration of HRAs. Q&A-4 of Notice 2015-87 clarifies that an HRA available to reimburse the medical expenses of an employee’s spouse and/or dependents (a family HRA) may not be integrated with self-only coverage under the employer’s other group health plan. In other words, an HRA may only be available for employees, spouses, children under age 27, and tax dependents who are actually enrolled in another group health plan. In FAQs About Affordable Care Act Implementation Part 37, Q/As-1 & -2 (Jan. 12, 2017), IRS, the Department of Labor (“DOL”), and the Department of Health and Human Services (“HHS”) confirmed that a family member’s HRA coverage may be integrated with a group health plan from a different plan sponsor, and that all individuals covered by the employee’s HRA do not have to covered under a single group health plan. For HRAs that were integrated based on their terms as of December 16, 2015, the agencies announced they were not enforcing the family integration rules for plan years beginning before January 1, 2017. Other HRAs were required to comply with the family integration rules for plan years beginning on or after January 1, 2016. Employers who sponsor HRAs covering family members must either comply with the family member integration rules, which may require plan amendments, or amend their plans to get rid of HRA coverage for family members.
• Consider Impact of New Disability Claims Regulations: On December 19, 2016, the DOL issued regulations that revise the ERISA claims procedure regulations for employee benefit plans that provide disability benefits (the “New Disability Claims Regulations”). The New Disability Claims Regulations were scheduled to take effect for all claims for disability benefits filed on or after January 1, 2018, however, the DOL has proposed a 90-day delay. In other words, if the proposed rule is finalized, the New Disability Claims regulations will take effect for all claims for disability benefits filed on or after April 1, 2018. The DOL will use this 90-day delay to seek additional input and consider whether it should rescind, modify, retain, or further delay the New Disability Claims Regulations. The New Disability Claims Regulations are based on the ACA’s enhanced claims and appeals regulations for group health plans. The scope of the New Disability Claims Regulations are broader than employers may realize and apply to any plan, regardless of how it is characterized, that provides benefits or rights that are contingent on whether the plan determines an individual to be disabled. This can include ERISA governed short-term disability plans, long-term disability plans, qualified retirement plans (e.g., a 401(k) plan), nonqualified retirement plans, and health and welfare plans. For more information on the requirements under the New Disability Claims Regulations, please see our August 29, 2017 SW Benefits Blog, “The New Disability Claims Regulations: They Don’t Only Apply to Disability Plans.”
• Consider Impact of Nondiscrimination Rules: Several important rules regarding nondiscrimination in the provision of health benefits remain in effect despite the change in administration. Employers should consider each of the following issues, as applicable:
• Section 1557 of the ACA: On May 18, 2016, HHS issued final regulations implementing the nondiscrimination provisions of the ACA. The final rule prohibits individuals from being excluded from participation, denied benefits, or subjected to discrimination under any health program or activity that receives federal financial assistance from HHS on the basis of race, color, national origin, sex, age, or disability. In part, the final rule focuses on the provision of health services to transgender participants and prohibits the blanket exclusion of services designed to treat gender dysphoria and to assist in gender transition. The rule was generally effective as of July 18, 2016, but group health plans and health insurance policies had until the first day of the first plan year beginning on or after January 1, 2017, to be modified for compliance. Over the past year, the final regulations have faced legal challenges and HHS is considering an overhaul of the rules. Despite this uncertainty, employers may wish to evaluate the array of transgender benefits that they might offer under their health programs. Being subject to Section 1557 may mean more than having to provide some level of transgender health coverage. It also likely requires employers to provide benefits to same-sex spouses if the employer provides benefits to opposite-sex spouses, and sexual orientation-neutral domestic partner benefits, if the employer offers domestic partner benefits. Section 1557 also subjects covered entities to certain notice requirements, samples of which can be found on the Office of Civil Rights website. For more information on the current status of Section 1557 see our SW Benefits Blog of August 10, 2017, “Transgender Benefits Revisited?” In addition, our SW Benefits Blogs of March 30, 2016, “‘A Trap for the Unwary’ - Does Your Self-Funded Health Plan Provide Transgender Benefits? It Might Need to Soon,” and June 22, 2016, “Transitioning to Coverage: Three Things to Know About the New Transgender Healthcare Regulations,” highlight the key contours of the nondiscrimination rule. Our September 19, 2016 SW Benefits Blog, “A Deeper Dive: Employers Receiving Federal Funding May Be Subject to ACA’s Nondiscrimination Rule and Need to Cover Transgender Benefits,” may help employers determine whether they are subject to the rule.
• Federal Contractors: Final regulations issued by the Office of Federal Contract Compliance Programs on June 15, 2016, extended nondiscrimination principles similar to those embodied in Section 1557 to employers holding federal contracts valued in excess of $10,000 in any 12-month period. These rules prohibit the categorical exclusion of health care coverage related to gender dysphoria or gender transition and became effective August 15, 2016. At the time of publication, these rules were unchanged by the administration and remain in effect.
• Title VII of the Civil Rights Act of 1964: While Section 1557 of the ACA is limited to certain employers who receive federal financial assistance from HHS, the type of discrimination that Section 1557 targets may be prohibited by other federal laws. For instance, Title VII prohibits employers from discriminating against employees with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin. The Equal Employment Opportunity Commission (the “EEOC”) has ruled that discrimination based on sexual orientation is a form of sex discrimination under Title VII. Accordingly, Title VII may require that: (1) employers offer some level of transgender coverage under their health plans; and (2) spousal and domestic partner benefits be sexual-orientation neutral. Case law in this area is developing.
• Continue to Track and Comply with ACA Changes: Employers should continue moving forward with implementation and compliance of the ACA. See our updated checklist that provides a more detailed summary of the principal requirements under the ACA, beginning with those that first became effective in 2010 and continuing through those that will become effective in 2020. The purpose of that checklist is to provide a summary of the principal requirements under the ACA that apply to employer-sponsored group health plans. The ACA and its related guidance go into much more detail and should always be consulted when considering its application to any particular plan.
• If a Group Health Plan is a Grandfathered Plan, Review Grandfathered Status: Group health plans that were in existence on or before March 23, 2010, and that have not undergone significant changes since then (“grandfathered plans”) have to comply with some, but not all, of the requirements under the ACA. Employers that have made any changes to their health plans or added a wellness component in 2017, or in connection with open enrollment for an upcoming plan year, should consider whether those changes cause the plan to lose grandfathered status. If grandfathered plan status is lost, the plan must comply with additional requirements that apply to non-grandfathered plans as of the date grandfathered status is lost. Very few plans still have grandfathered status. Those that do need to make sure that they comply with the grandfathered plan notice requirements.
• Cover Preventive Services without Cost Sharing in Non-Grandfathered Health Plans: Non-grandfathered group health plans were first required to provide coverage for preventive services without cost sharing for plan years beginning on or after September 23, 2010. Non-grandfathered group health plans were required to cover additional women’s preventive services without cost sharing for plan years beginning on or after August 1, 2012 (i.e., January 1, 2013, for calendar year plans). Plan sponsors and insurers that are subject to the preventive services mandate should periodically review and update their plans to ensure that they are covering all of the preventive services described in the recommendations and guidelines, which change from year-to-year. Information about the recommendations and guidelines is available at the Healthcare.gov website, which is updated periodically. Also see FAQs About Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation, for various clarifications regarding preventive care services, including lactation counseling (Q1-4), breastfeeding equipment (Q5), weight management services for adult obesity (Q6), colonoscopies (Q7-8), religious accommodation to providing coverage of contraceptive services (Q9), and coverage of BRCA testing (Q10); FAQs About Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women’s Health and Cancer Rights Act Implementation for various clarifications regarding preventive care services, including colonoscopies (Q1), and contraception (Q2); FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation regarding tobacco cessation interventions (Q1); FAQs About Affordable Care Act Implementation Part 35 regarding women’s preventive services (Q2); and FAQs About Affordable Care Act Implementation Part 36 regarding contraceptive services.
• Preventative Care Cost Sharing Issues: One issue to watch out for regarding “free” preventive care is miscoding of services by health care providers. Occasionally, participants are charged for preventive care services that should have been provided for free under their health plan. For more information on coding issues for preventive care services, please see our June 21, 2017 SW Benefits Blog, “Why Isn’t my ‘Free’ Preventive Healthcare Free?”
• Be Aware of Contraceptive Coverage Changes. On Friday October 6, 2017, the Trump administration issued two interim final rules regarding religious- and conscience-based objections to the mandate that group health plans provide free preventive care services, including contraceptive coverage, to employees under the ACA. These interim rules come in response to President Trump’s May 4, 2017 Executive Order which instructed the Secretary of the Treasury, the Secretary of Labor, and the Secretary of HHS to consider issuing amended regulations to address conscience-based objections to the preventive-care mandate under the ACA.
• Religious Exemption: The first rule provides a religious exemption for organizations that object to offering coverage or payments for contraceptive services with respect to a group health plan established or maintained by the objecting organization. Objecting organizations are defined broadly to include churches, nonprofit organizations, for-profit entities, institutions of higher education, and any other non-governmental employers. Objecting organizations are not required to provide coverage of some or all contraceptive services if the objection is based on sincerely held religious beliefs. The interim final rule addressing religious beliefs will be officially published here on October 13, 2017.
• Moral Exemption: The second rule provides a moral exemption for organizations that object to offering contraceptive care coverage based on moral conviction rather than a specific religious belief. This exemption is narrower in scope and applies to non-profit organizations, closely held for-profit entities, and institutions of higher education. The interim final rule addressing moral objections will be officially published here on October 13, 2017.

Comments on the interim final rules may be submitted to the Department of HHS until December 5, 2017, but the rules and temporary regulations are effective immediately.

It is anticipated that very few employers will make changes to their contraceptive care coverage based on the above rules. Employers that are considering changes should be aware that other laws such as Title VII and state insurance laws may also have an effect on what changes can be made to contraceptive coverage.

• Be Ready for HIPAA Phase 2 Audits: As indicated in our May 4, 2015, SW Benefits Blog, “HIPAA ‘Phase 2’ Audits: Are You Ready?”, HHS implemented its HIPAA Phase 2 Audit Program in 2016. During these audits, HHS has been focusing on reviewing the policies and procedures adopted and employed by covered entities and their business associates to ensure compliance with HIPAA’s Privacy, Security, and Breach Notification Rules. These audits will primarily be desk audits, although some on-site audits will be conducted.
• Update HIPAA Privacy and Security Policies and Procedures and Business Associate Agreements: Because of the HIPAA Phase 2 Audit Program and general increase in enforcement activity by HHS’s Office for Civil Rights (“OCR”), employers should review and, if needed, update their HIPAA Privacy and Security policies and procedures. In addition, employers should ensure that they have updated business associate agreements (“BAAs”) with all business associates. For more information on the HIPAA Phase 2 Audit Program and the requirement to establish and maintain HIPAA Privacy and Security policies and procedures, please see our March 14, 2017, SW Benefits Blog, “HIPAA Checkup – How Good Are Your Policies and Procedures?” For more information on OCR’s enforcement activity, please see our May 9, 2017, SW Benefits Blog, “2017 HIPAA Enforcement – Appears Not to be Slowing Down.”
• Implement a Business Associate Agreement with Cloud Service Providers (“CSPs”): In 2016, HHS released updated Guidance on HIPAA & Cloud Computing to help covered entities take advantage of the cloud without risking a HIPAA violation. The main focus of the guidance is the use of CSPs. Independent CSPs are treated as business associates under HIPAA regulations if the CSP is required to create, receive, maintain, or transmit electronic protected health information (“ePHI”). This is true even though the data may be encrypted. A CSP is also treated as a business associate when a business associate of a covered entity subcontracts services to the CSP that involve creating, receiving, maintaining, or transmitting ePHI. The importance of entering into a HIPAA-compliant BAA with a CSP was highlighted in July 2016 when HHS agreed to settle with Oregon Health & Science University in Portland for $2.7 million after an investigation revealed that ePHI had been stored on a Google-cloud based platform without a HIPAA-compliant BAA having first been obtained.
• Review Wellness Programs: It is a good time to perform a review of wellness programs in light of last year’s guidance and continually developing case law. On May 17, 2016, the EEOC issued final rules clarifying how the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA”) apply to employer-sponsored wellness programs. The ADA final rule provides guidance on the requirement that a medical exam or disability-related inquiry made in connection with a wellness program be “voluntary.” The rule also discusses the limited applicability of the “safe harbor” provision. For a discussion of the final ADA rule, please see our July 5, 2016, SW Benefits Blog, “EEOC Final Rules on Wellness Programs and the ADA - Worth the Wait?”. The GINA final rule discusses the use of genetic information and makes some changes to incentives related to wellness programs that inquire about a spouse’s current or past health status. These final rules apply to employer-sponsored wellness programs, regardless of whether a program is offered through a group health plan.
• Include ADA Notice with Open Enrollment Wellness Program Communications. In 2016, the EEOC published a Sample Notice for Employer-Sponsored Wellness Programs to assist employers in complying with the requirements of the ADA final rule. Employers who offer wellness programs subject to the ADA are required to send a tailored Notice to all employees eligible to participate in an employer’s wellness program. Wellness programs that are subject to the ADA Notice requirement are those that make disability-related inquiries or involve medical testing. For example, wellness programs that involve activities such as biometric screenings, nicotine testing, or health risk assessments (“HRAs”) are subject to the ADA and must provide a Notice. The EEOC requires that employees receive a Notice before submitting certain health information so that employees can decide whether or not they would like to participate in the program. The Notice can be provided in any format that will be effective in reaching employees, including via email or hard copy.
• Consider the Complexity of Wellness Programs: Depending on the particular benefits a wellness program offers, a wellness program may be subject to a unique combination of varying requirements such as ERISA, HIPAA, ADA, GINA, and COBRA, to name a few. This leaves substantial room for error when trying to design compliant wellness programs. Minor changes can have a major impact, so periodically reviewing wellness offerings may help avoid costly mistakes. To make matters more challenging, as described in more detail below, the case law involving wellness programs is not settled and the ADA and GINA final rules may be in jeopardy. Therefore, employers should continue to monitor recent developments in the law as they design and implement their wellness programs.
• In the August 22, 2017, AARP v. EEOC (D.D.C., No. 1:16-cv-02113) decision, the District Court for the District of Columbia ordered the EEOC to review the ADA and GINA final rules and to consider whether the 30% incentive/penalty renders participation in a wellness program “involuntary” and thereby violates the statutes. On September 21, 2017, the EEOC provided a status report, indicating that it would need until August 2018 to review the regulations on employer wellness programs. It further expects to issue a new final rule in October of 2019.
• On August 16, 2017, the DOL filed suit against Macy’s in Acosta v. Macy’s, S.D. Ohio, No. 1:17-cv-00541, (amended complaint filed Aug. 29, 2017), alleging that Macy’s wellness program failed to provide and disclose the availability of a reasonable alternative standard which was a violation of HIPAA’s nondiscrimination rules, a breach of fiduciary duty, and a prohibited transaction. Employers that offer a wellness program that requires an individual to satisfy a standard related to a health factor in order to obtain a reward, or avoid a penalty, should verify that they offer and provide notice of a reasonable alternative standard. This lawsuit signals that the DOL may be increasing its enforcement activity for wellness programs.
• Last year in EEOC v. Orion Energy Systems, Inc., no. 1:14:-cv-01019 (E.D. Wis. 2016), the EEOC sued Orion Energy Systems, Inc. claiming that Orion’s wellness program violated the ADA because it was not voluntary and that Orion retaliated against an employee who declined to participate in the program. On April 5, 2017, these issues were resolved and the EEOC announced that as part of a settlement, Orion agreed, amongst other things, to pay $100,000 to the employee at issue who claimed retaliation. Employees often express concerns regarding the terms of their employer’s wellness program. When that happens, employers must be thoughtful in their response to reduce the risk of retaliation claims.
• Consider Taxation of Wellness Incentives: On April 14, 2016, the IRS issued IRS Memorandum 201622031, which provides clarification regarding taxation of certain wellness program incentives. Many employer-provided wellness incentives, such as cash rewards or gym membership reimbursements, must be taxed as income to the employee.
• Review Employee Assistance Programs: Final regulations were released on October 1, 2014, concerning the criteria necessary for benefits offered through an Employee Assistance Program (“EAP”) to qualify as excepted benefits. Excepted benefits are generally exempt from the requirements of the ACA. In order to qualify for this relief: (1) the program cannot provide “significant benefits in the nature of medical care;” (2) the benefits cannot be coordinated with benefits under another group health plan; (3) no employee premiums or contributions can be required to participate in the EAP; and (4) there must be no cost-sharing under the EAP. The regulations do not provide detailed elaboration upon the meaning of “significant” medical benefits. The regulations provide examples and generally state that the amount, scope, and duration of covered services are taken into account. These final regulations apply for plan years beginning on or after January 1, 2015. Employers who have not yet confirmed that their EAPs comply with each of these four requirements may wish to do so promptly.
• Consider Proper Treatment of Telemedicine Benefits: Telemedicine is becoming an increasingly popular option. However, failure to follow applicable regulations can subject employers to large excise taxes on a per-participant basis. To avoid this liability, employers should consider how to best structure telemedicine programs to ensure compliance with ERISA, the ACA, and other applicable laws. For more information regarding telemedicine benefits, please see our August 29, 2016, SW Benefits Blog, “What is Telemedicine? A Cool Benefit or a Hot Mess?".
• Distribute Revised Summaries of Benefits and Coverage (“SBC”): The ACA requires employers offering group health plan coverage to provide employees with an SBC, which summarizes the health plan or coverage offered by the employer. As noted in our SW Benefits Blog of August 11, 2016, “Departments Finally Publish Updated SBC Template and Instructions,” the agencies issued an updated SBC template and revised instructions on April 6, 2017. Health plans are required to begin using the revised SBC template beginning for open enrollment periods occurring on or after April 1, 2017. The new template provides health care consumers with more detailed information about cost-sharing, deductibles, and out-of-pocket limits. More information about the SBC requirement, and links to the revised SBC template, can be found on the DOL website.
• Provide 60-Day Advance Notice of Changes Impacting SBC: The ACA requires group health plans to give participants a 60-day advance notice before making any material modification in plan benefits or coverage that is not reflected in the most recently provided SBC. This applies to both benefit enhancements and reductions that take effect mid-year.
• Update Summary Plan Descriptions (“SPDs”) if Needed: SPDs must be updated once every five years if the plan has been materially amended during the five-year period and once every 10 years if no material changes have been made. Further, an updated SPD must incorporate all material amendments that occurred during the five year period, even if the changes were communicated in a timely manner through summaries of material modification. SPDs may need to be updated.
• Review Whether Plan Documents and SPDs Grant Discretionary Authority to Plan Decisionmakers and Their Delegates: In light of a recent decision, Rodríguez-López v. Triple-S Vida, Inc., 850 F.3d 14 (1st Cir. 2017), it is a good time for employers to review their health and welfare plan documents and SPDs to confirm the plan’s language expressly and unambiguously grants its decisionmakers and their delegates discretionary authority. The purpose of including this language is to increase the likelihood a court will apply a more favorable abuse of discretion standard of review. Notably, in Rodríguez the Court ordered a de novo standard of review for Triple-S’s long-term disability benefits denial because the plan document at issue granted discretionary authority to its plan sponsor, but not the insurer, Triple-S.
• Distribute Summary Annual Report: Distribute a summary annual report, which is a summary of the information reported on the Form 5500. The summary annual report is generally due nine months after the plan year ends. If the Form 5500 was filed under an extension, the summary annual report must be distributed within two months following the date on which the Form 5500 was due.
• Gear Up for the Cadillac Tax: The ACA requires employers to pay a 40% excise tax on the value of health plans that exceed $10,200 for an individual and $27,500 for a family, indexed for inflation. The excise tax was originally scheduled to take effect for taxable years beginning after 2017, but subsequent legislation delayed the excise tax by two years until 2020 (tax years beginning after 2019). On February 23, 2015, the IRS issued Notice 2015-16, which initiated the process of developing guidance for the Cadillac tax. Notice 2015-16 describes potential approaches that could be incorporated in future guidance and invited comments on these potential approaches and other issues concerning how to enforce the Cadillac tax. On July 30, 2015, the IRS issued Notice 2015-52, which continued the process of developing regulatory guidance. Notice 2015-52 supplements Notice 2015-16 by addressing additional issues, including the identification of the taxpayers who may be liable for the excise tax, employer aggregation, the allocation of the tax among the applicable taxpayers, and the payment of the applicable tax. Both IRS Notices were issued prior to the legislative delay. Legislators from both political parties have voiced support for the repeal of the Cadillac tax, but no legislation has been passed. For the time being, employers should not rely on informal comments from legislators and should assume that the Cadillac tax will not be repealed. Employers may wish to begin preparing for the Cadillac tax and assess possible plan design changes, if necessary, to avoid the Cadillac tax. However, the two-year delay is welcome and gives employers some breathing room.
• Comply with Mental Health Parity Requirements: In general, the mental health parity rules require group health plans to ensure that financial requirements (e.g., co-pays, deductibles, and coinsurance) and quantitative and non-quantitative treatment limitations (e.g., visit limits, days of coverage maximums, and medical necessity standards) applicable to mental health or substance use disorder benefits are no more restrictive than the predominant requirements or limitations applied to substantially all medical/surgical benefits. The parity rules concerning financial requirements and treatments limitations were created by the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”), which supplemented the Mental Health Parity Act of 1996. In November 2013, final regulations were issued implementing the provisions of MHPAEA. The final MHPAEA regulations apply to group health plans for plan years beginning on or after July 1, 2014. Therefore, employers sponsoring plans should have complied with these parity requirements in 2015. Employers who have not done so should consider reviewing their plans for compliance, taking into consideration the final regulations and more recent guidance, including but not limited to: FAQs About Affordable Care Act Implementation (Part XXIX) and Mental Health Parity Implementation (Q12-13); FAQs About Affordable Care Act Implementation Part 31, Mental Health Parity Implementation, and Women’s Health and Cancer Rights Act Implementation (Q8-11); FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation (Q2-8); and FAQs About Mental Health And Substance Use Disorder Parity Implementation and the 21st Century Cures Act Part 38. For more information on recent MHPAEA guidance, including how individuals can request certain MHPAEA disclosures from plan administrators, please see our July 5, 2017, SW Benefits Blog, “Recent Mental Health Parity Guidance – A Good Reminder to Review Your Health Plan for Compliance.” Audit activity regarding MHPAEA compliance is on the rise. For example, it will likely come up during the course of a DOL health and welfare plan investigation.
• Report and Pay Reinsurance Fees: The ACA created the transitional reinsurance program, which requires most self-insured health plans to make contributions to HHS for the 2014, 2015, and 2016 calendar years. The contribution amount is determined by the number of covered lives under each plan. The number of covered lives must be calculated and submitted to HHS by November 15 of each year. The third and final filing is due November 15, 2016, for the 2016 calendar year. See the CMS webpage on reinsurance fees for contribution deadlines. For 2016, the contribution amount was $27 per covered life, down from $44 for 2015. Data submissions and payments can be made online using Pay.gov. Covered lives may be calculated using several different methods, similar to the methods that are used to calculate covered lives for PCORI fees. Results can differ significantly depending on the counting method used.
• Continue to Report and Pay Patient-Centered Outcomes Research Institute (“PCORI”) Fees: Health insurance issuers and sponsors of self-insured health plans must continue to report and pay PCORI fees. For health insurance issuers and plan sponsors of self-insured plans with calendar-year policy or plan years, the first IRS Form 720 and payment was due July 31, 2013. The PCORI fee for a plan or policy year is equal to the average number of lives covered under the plan or policy, multiplied by an applicable dollar amount. For the first year, the applicable dollar amount was $1. This amount was increased to $2 for the second year, to $2.08 for the third year, $2.17 for the fourth year, and $2.26 for the fifth year. For the sixth year (i.e., plan years that end on or after October 1, 2017, and before October 1, 2018) the applicable dollar amount is $2.39. Future amounts will be adjusted to reflect inflation in National Health Expenditures, as determined by HHS.
• Continue to Comply with IRS Form W-2 Reporting of the Cost of Employer-Sponsored Group Health Plan Coverage: Beginning with the Form W-2 issued in January 2013 (i.e., the Form W-2 issued for the 2012 calendar year), employers have been required to report to employees the cost of their employer-sponsored group health plan coverage. This reporting is for informational purposes only and is intended to communicate the cost of health care coverage to employees. It does not change how such benefits are taxed. This requirement continues to apply for future years.
• Reflect Cost-of-Living Increases: The IRS recently announced cost-of-living adjustments for 2018, some of which have an impact on health and welfare plans. A selection of important cost-of-living increases in the health and welfare context is provided below.