Common Compliance Questions

Get the answers to commonly asked questions for the below listed by clicking here.

• HIPAA- Smoker Surcharge
• Cafeteria Plans -Health Flexible spending Account
• MSP Mandatory Reporting
• Controlled Groups
• Creditable Coverage under Medicare Part D
• Family and Medical Leave Act
• Health Savings Accounts
• ERISA
• Cafeteria plans
• COBRA

Health Reform Questions

Question 1 – “Free Standing” Health Reimbursement Arrangements

My client wants to establish a “free standing” Health Reimbursement Arrangement (“HRA”) for its employees for medical, dental and vision expenses incurred after December 31, 2011.  Under this plan, participants would be reimbursed up to $5,000 for medical, dental and vision expenses and/or premiums for individual insurance premiums.  Is it possible for an employer to sponsor such a plan considering the changes under health reform?

No, unless the employer amends the HRA to only reimburse dental and vision expenses and/or premiums.  See the discussion below:

The health care reform law prohibits group health plans from establishing “lifetime limits on the dollar value of benefits for any participant or beneficiary” for plan years beginning on or after September 23, 2010, as provided under PHSA §2711(a)(1)(A), For plan years beginning on or after September 23, 2010 and prior to January 1, 2014, the health care reform law allows “restricted annual limits” on essential health benefits, but for plan years beginning on or after January 1, 2014, no annual limits on essential health benefits are permitted.

HRAs are group health plans that provide reimbursements up to a maximum dollar amount for a coverage period and generally, though not always, allow unused amounts to be carried forward to increase the maximum reimbursement in subsequent coverage periods as provided in IRS Notice 2002-45, 2002-28 I.R.B. 93. In essence, then, HRAs are account-based benefits which by their very nature impose upper limits on the dollar value of benefits.

There are three exemptions for HRAs from these annual limit requirements.  These include:

• Retiree-only HRAs, as provided in 75 Fed. Reg. 34537,
• Those HRAs that provide excepted benefits under the HIPAA portability rules, as provided in Treas. Reg. §54.9831-1(c); DOL Reg. §2590.732(c); and 45 CFR §146.145(c).  HRAs that provide only limited-scope dental or vision benefits will not be subject to the annual limit rules.
• HRAs that are integrated with other coverage as part of a (more comprehensive) group health plan will not violate the annual limit rules so long as the other coverage on its own would comply, as provided in Preamble to Interim Final Rules Relating to Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections Under PPACA, 75 Fed. Reg. 37188, 37190.

For any HRA that does not come under one of the above exemptions, there are offer two ways to obtain a temporary exemption from the annual limit restrictions: by applying for a waiver or by satisfying the requirements of a class exemption. The window of opportunity for filing waiver applications closed on September 22, 2011; and both the waiver and class exemption apply only to HRAs that were in effect prior to September 23, 2010.  This is provided in the CCIIO Supplemental Guidance (CCIIO 2011-1D): Concluding the Annual Limit Waiver Application Process; CCIIO Supplemental Guidance (CCIIO 2011-1E): Exemption for Health Reimbursement Arrangements that are Subject to PHS Act Section 2711.

A copy of each guidance can be obtained by clicking on the link below:

CCIIO Supplemental Guidance (CCIIO 2011-1D): Concluding the Annual Limit Waiver Application Process:

http://cciio.cms.gov/resources/files/06162011_annual_limit_guidance_2011-2012_final.pdf

CCIIO Supplemental Guidance (CCIIO 2011-1E): Exemption for Health Reimbursement Arrangements that are Subject to PHS Act Section 2711:

http://cciio.cms.gov/resources/files/final_hra_guidance_20110819.pdf

For the purpose of the waiver and the class exemption, the term “in effect” is not defined, but it presumably means the HRA had been formally adopted (and perhaps even providing benefits or accumulating account balances) prior to September 23, 2010. The exemption clearly does not apply to an HRA that was created significantly after that date—for example, a company that designs an HRA in 2011 to be effective January 1, 2012.

In order for any “free standing” HRAs adopted prior to September 23, 2010 to rely on the exemption, they must comply with the record retention and annual notice requirements that apply under the waiver program (which are discussed above). This is true even though that waiver program may not be available to the HRA (e.g., because the HRA did not submit an application prior to September 22, 2011).

Question 2 – Form W-2 Reporting

In meeting the new Form W-2 Reporting requirements, what coverages provided by the employer to employees must be reported?

The Form W-2 reporting requirement applies only to “applicable employer-sponsored coverage,” a term that generally includes any employer-provided group health plan coverage under an insured or self-insured health plan that is excludable from the employee’s gross income under Code § 106, or that would be excludable if it were paid for by the employer. It is subject to numerous exceptions, including exceptions for:

• any coverage for long-term care;
• any coverage (whether through insurance or otherwise) described in Code § 9832(c)(1), which includes accident and disability coverage, but no exception applies for coverage for on-site medical clinics;
• certain stand-alone vision or dental coverage (as discussed below); and
• any coverage described in Code § 9832(c)(3) (i.e., coverage only for a specified disease or illness and hospital indemnity or other fixed indemnity insurance) where such coverage is funded by the employee on an after-tax basis for which a deduction under Code § 162(l) is not allowable as provided in PPACA, Pub. L. No. 111-148, § 9002 (2010) (cross-referencing Code § 4980I(d)(1), which was added by PPACA, Pub. L. No. 111-148, § 9001 (2010)).

For purposes of determining whether a specific arrangement is a group health plan, employers may rely upon a good faith application of a reasonable interpretation of the statutory provisions and applicable guidance, including the definition under the IRS COBRA regulations as provided in Treas. Reg. § 54.4980B-2, Q/A-1(a). Thus, any coverage subject to the COBRA regulations’ definition of group health plan would, in the absence of an exception or transition rule, be subject to the W-2 reporting requirement, as provided in IRS Notice 2011-28, 2011-16 I.R.B. 656, Q/A-13.

Dental and Vision Coverage

Applicable employer-sponsored coverage subject to the reporting requirement does not include stand-alone, insured dental, or vision coverage, as provided in  Code § 4980I(d)(1)(B). Based on a plain reading of the statutory language, it appears that the cost of insured dental or vision coverage which is offered “under a separate policy, certificate, or contract of insurance” is excluded from the aggregate cost of employer-sponsored coverage to be reported on the employee’s Form W-2, as provided in Code § 4980I(d)(1)(B)(ii) By contrast, under the literal language of the statute, the cost of self-insured dental or vision coverage (whether a limited-scope stand-alone benefit or bundled with medical) appears to be included on the employee’s Form W-2. Interim guidance issued in IRS Notice 2011-28 conforms the treatment of self-insured and fully insured dental/vision plans by providing transition relief.

Transition Relief for Stand-Alone Dental or Vision Coverage (Whether Insured or Self-Insured).

IRS Notice 2011-28 provides transition relief by not requiring employers to include the cost of coverage under a dental or vision plan (provided on an insured or self-insured basis) if such plan is not integrated into a group health plan providing additional health care coverage subject to the reporting requirement, as provided under IRS Notice 2011-28, 2011-16 I.R.B. 656, Q/A-20.

Health Savings Account (HSA) and Archer MSA Contributions

HSA and Archer MSA contributions are included in the definition of applicable employer-sponsored coverage, but they are explicitly excluded from the W-2 reporting obligation, as provided in Code § 4980I(d)(2)(C) A special rule applies to health FSAs .

Special Rules for Health FSA Contributions

Health FSA contributions are included in the definition of applicable employer-sponsored coverage, but special rules apply with respect to the W-2 reporting obligation, as provided in Code § 4980I(d)(2)(B). The amount of any salary reduction election to a health FSA is excluded from the aggregate reportable cost and is not reported on Form W-2, as provided in IRS Notice 2011-28, 2011-16 I.R.B. 656, Q/A-16. Where the health FSA is offered through a cafeteria plan under which optional employer flex credits (expressed as a fixed amount, or as formula such as matching salary reduction) can be applied to the health FSA, special rules must be applied to determine whether any amount must be included in the aggregate reportable cost as follows:

• If the amount of the employee’s salary reduction (for all qualified benefits) equals or exceeds the amount of the health FSA for a plan year, then the amount of the employee’s health FSA is not included in the aggregate reportable cost.
• If the amount of the employee’s health FSA for a plan year exceeds the employee’s salary reduction for that plan year, then the amount of the employee’s health FSA minus the employee’s salary reduction election for the health FSA must be included in the aggregate reportable cost.

Coverage Under a Health Reimbursement Arrangements (HRA)

Under transition relief provided in IRS Notice 2011-28, 2011-16 I.R.B. 656, Q/A-18, an employer is not required to include the cost of coverage under an HRA in determining the aggregate reportable cost. Thus, if the only applicable employer-sponsored coverage provided to an employee is an HRA, no reporting is required on the Form W-2.

Transition Relief for Certain Employers and Coverage

For instances in which transition relief is provided under IRS Notice 2011-28, the IRS has indicated that future guidance may prospectively limit the availability of some or all of this transition relief—but it will not apply earlier than January 1 of the calendar year beginning at least six months after it is issued and will not limit the availability of the transition relief for the 2012 Forms W-2. Transition relief is available for the following:

• employers filing fewer than 250 Forms W-2,
• certain Forms W-2 furnished to terminated employees before the end of the year,
• relief with respect to multiemployer plans,
• HRAs,
• certain dental and vision plans, and
• self-insured plans of employers not subject to COBRA continuation coverage or similar requirements.

A copy of IRS Notice 2011-28 can be obtained by clicking on the link below:

http://www.irs.gov/pub/irs-drop/n-11-28.pdf

 

Question 3 – Wellness Programs

One of my clients sponsors a wellness program.  If an employee participates in the program, his or her group medical coverage premium will be reduced from 10% to 15%.  If for any year, an employee does not qualify for the discount under the wellness program and his or her premium increases 10% to 15%, will such an increase affect the grandfathered status of the employer’s group medical plan?

Yes. The various federal agencies caution that penalties related to wellness programs (such as cost-sharing surcharges) should be examined carefully as they could jeopardize the plan’s grandfather status-for example, by decreasing the employer’s contribution percentage by more than 5 percentage points below the contribution rate on March 23, 2010.

Question 4 – Form W-2 Reporting

Are all employers required to report “applicable employer -sponsored coverage” on an employee’s Form W-2 for 2012?

No. All employers that provide “applicable employer-sponsored coverage” during a calendar year are subject to the reporting requirement-including federal, state, and local government entities (a few exceptions apply, such as federally recognized Indian tribal governments).

For 2012 Forms W-2 and until the issuance of further guidance, the IRS indicated in Notice 2011-28, Q/A-3 that an employer is not subject to the reporting requirement for any calendar year if the employer was required to file fewer than 250 Forms W-2 for the preceding calendar year. Therefore, if an employer files fewer than 250 Forms W-2 in 2011, the employer would not be subject to the reporting requirement for the 2012 calendar year.

Question 5 – Summary of Benefits and Coverage

The health care reform law  expands ERISA’s disclosure requirements by requiring that a four-page “summary of benefits and coverage” (“SBC”) be provided to applicants and enrollees before enrollment or re-enrollment. The SBC must accurately describe the “benefits and coverage under the applicable plan or coverage.”  The SBC applies in addition to ERISA’s SPD and SMM requirements.  Although effective for plan years beginning on or after September 23, 2010,  this requirement contains a special distribution deadline of 24 months after the enactment of PPACA (March 23, 2010).  Last week, new proposed regulations were released and provided important new guidance and clarification. The following reviews are two important questions.

Must the SBC be provided 60 days before the beginning of each renewal?

No. Individuals enrolled in a health plan must be notified of any significant changes to the terms of coverage reflected in the SBC at least 60 days prior to the effective date of the change. This timing applies only to changes that become effective during the plan or policy year but not to changes at renewal (the start of the new plan or policy year).

 

So if this rule does not apply, when must the SBC be provided?

In general, the proposed regulations direct that the SBC be provided when a plan or individual is comparing health coverage options. If the information in the SBC changes between the time of application, when the coverage is offered, and when a policy is issued (often the case only for individual market coverage), the proposal would require that an updated SBC be provided. If the information is unchanged, the SBC does not need to be provided again, except upon request.

An insurer also must provide a new SBC if and when the policy, certificate, or contract or policy is renewed or reissued. In the case of renewal or reissuance, if the insurer requires written application materials for renewal (in either paper or electronic form), it must provide the SBC no later than the date the materials are distributed. If renewal or reissuance is automatic, the SBC must be provided no later than 30 days prior to the first day of the new policy year.

Question 6 – Tax Free health Coverage

Under the Health Care Reform laws, which individuals qualify for tax free health coverage?

The Health Care Reform laws expanded the group of individuals who can receive accident or health benefits on a tax-free basis to include children “of the taxpayer” who have not attained age 27 as of the end of the taxable year, as provided in Code Section 105(b). This change means that, in addition to the employee and his or her spouse, the following individuals may now receive employer-provided health coverage on a tax-free basis:

• any child of the employee, until the end of the year the child turns age 26;
• an employee’s qualifying child; and
• an employee’s qualifying relative.

For purposes of this exclusion, a “child” means “a son, daughter, stepson, or stepdaughter of the taxpayer, or an eligible foster child of the taxpayer, “as provided under Code §152(f)(1) The terms “qualifying child” and “qualifying relative” are defined using the modified Code §105(b) definition.

Please remember that the tax-treatment provisions apply to all employer-provided accident or health coverage, including plans that provide only HIPAA-excepted benefits, such as limited-scope dental or vision benefits and most health FSAs.

Special Note: Under these new rules, coverage for a child of a civil union spouse or domestic partner will only be tax free if he or she meets the requirements for being a qualifying relative. In many situations, the child of a civil union spouse or domestic partner may not be the “child” or the “qualifying child” of the employee.

Further Note:  For distributions from  a Health Savings Account (HSA) to be tax free for account holder, the medical expense must be incurred by an individual who meets the requirements for being either a “qualifying child” or a “qualifying relative,” as defined using the modified Code §105(b) definition. Code §223 was not amended by the Health Care Reform laws to add a provision allowing expenses for children under age 27 who are not Code §105(b) dependents, so unlike health FSAs, HRAs, and HDHPs, HSAs cannot pay the expenses of such children tax-free.