The Cadillac Tax: Myths & Facts
Original post benefitspro.com
Americans love a good story. From fairy tales to hair-raising films that leave us cowering in our seats, we enjoy when our hearts pound in anticipation. Sometimes, though, we keep ourselves up at night by creating myths about things that shouldn't be worrisome at all. One example: The Affordable Care Act's 40 percent excise tax on high-cost health care plans, commonly referred to as the Cadillac Tax.
Although we are several years away from its implementation, brokers are wondering what these health care changes will mean for their business. The Cadillac Tax is confusing and prompts questions from employers and benefits professionals — especially about when to make changes to benefits plans and whether voluntary insurance is affected.
Let's take some time to distinguish between the myths and facts so when you communicate with your clients about their plans this year — and in years to come — you have the facts to ensure you’re providing clients with accurate information to make effective business decisions regarding benefit offerings.
Myth: Employers should make benefit changes now to avoid the Cadillac tax.
Fact: The Cadillac tax has been delayed until 2020.
- As part of the Congressional spending bill signed into law in late December 2015, the Cadillac Tax is delayed until 2020.
- Considering implementation of the tax is several years away and regulations will evolve, employers can wait before considering changes to their policies.
Myth: All voluntary benefits are included in the tax.
Fact: Generally, voluntary insurance products do not count toward the Cadillac Tax calculation.
- Only two types of voluntary coverage — specified disease and hospital indemnity — are subject to the calculation of the tax, but only if they’re paid for with pretax dollars, such as through a cafeteria plan, or with excludable employer contributions. Otherwise, they are not subject to the calculation of the tax.
- Voluntary insurance products are defined as HIPAA-excepted benefits.
Myth: Employers should switch their pretax voluntary insurance products to after-tax versions.
Fact: Only employers with benefits plans considered “high cost” need to consider after-tax strategies.
- Employers and their workers receive tax advantages for retaining pretax voluntary products.
- Only two types of voluntary coverage — specified disease and hospital indemnity — are included in tax calculations, and only then if they’re paid with pretax dollars or the employer pays any portion of the premium. Other voluntary insurance benefits won't trigger the Cadillac Tax, regardless of whether they’re offered before or after tax.
Myth: Employers or workers will be responsible for paying the Cadillac Tax when it goes into effect.
Fact: In most cases, the insurance provider will be responsible for paying the tax.
- Most small businesses are fully insured, meaning the insurance provider sets the premium and pays the claims. When that's the case, the insurer, not the employer, is responsible for paying the Cadillac Tax when it goes into effect in 2020.
- If an employer is self-insured, meaning the employer sets the premiums and pays the claims, or the coverage offered is a health savings account (HSA) or an Archer medical savings account (MSA), the employer or the plan administrator will be responsible for paying the tax.
The bottom line is that myths and rumors have made the Cadillac Tax seem more confusing than it already is. It isn't even expected to take effect for another four years, so it shouldn't prompt your clients to exclude voluntary insurance from their benefits options. After all, the security voluntary coverage provides can help ensure your clients and their employees sleep well instead of worrying about medical costs that are continuing to rise.
How to Prepare for a HIPAA Audit
Original post benefitnews.com
The Department of Health and Human Services’ Office of Civil Rights has announced it will be launching phase two of the Health Insurance Portability and Accountability Act audit program. Advisers can help clients prepare by updating policies and procedures, among other steps.
HIPAA provides the ability to transfer and continue health insurance coverage for millions of American workers and their families when they change or lose their jobs, reduces healthcare fraud and abuse, mandates industry-wide standards for healthcare information on electronic billing and other processes; and requires the protection and confidential handling of protected health information.
HIPAA established national standards for the privacy and security of protected health information and the Health Information Technology for Economic and Clinical Health Act (HITECH). This established breach notification requirements to provide greater transparency for individuals whose information may be at risk.
HITECH requires OCR to conduct periodic audits of covered entity and business associate compliance with the HIPAA privacy, security and breach notification rules. OCR began its initial audit in 2011 and 2012 to assess the controls and processes implemented by 115 covered entities to comply with HIPAA.
Phase two of the audit will focus on any covered entity and business associate. OCR will identify pools of covered entities and business associates representing a wide range of healthcare providers, health plans and healthcare clearing houses.
Roy Bossen, partner at Hinshaw & Culbertson LLP, says the law firm he works for is considered a business associate because the firm deals with cases under medical malpractice.
“When we defend a hospital or a doctor, we have access to Protected Health Information (PHI),” Bossen says. “There is requirement in HIPAA for what a business associate must do to protect [PHI] as well.”
Bossen says there is not a specific penalty for not passing the audit; however an entity or business associate could face possible fines for failure of the audit.
“The next phase of the audit will be called a compliance review,” he says. “[Entities and business associates] will require a more in-depth review of what their policies and procedures are, and that could theoretically lead to fines and penalties.”
Bossen stresses that it is important for employers to determine whether they are a covered entity or business associate or if the audit even applies to an employer’s business. An employer that operates their own plan would be considered a covered entity.
Advisers and brokers can assist their clients by making sure employer’s policies and procedures are up to date while also making sure the employer’s practices match-up with the up to date policies and procedures.
“It is not uncommon in any field to have a great policy manual that’s in a nice binder on a shelf or an email document that gets sent out, but nobody practices the organization of what their policies and procedures stipulate,” Bossen says.
The HIPAA phase two audit program will begin the next couple months and should a covered entity or business associate be contacted for a desk audit or onsite audit.
Both audits can take up to 10 days to be reviewed and the auditor will have entity’s final report within 30 business days.
New Concerns for Employer Plan Sponsors Under the Fair Labor Standards Act and ERISA § 510
Original post jdsupra.com
The Affordable Care Act (ACA) anti-retaliation provisions have been in effect for several years, but have so far largely gone unnoticed. Now that employees can get financial assistance through the Health Insurance Marketplace, employers should revisit these provisions and carefully structure their actions to limit potential exposure. In addition, a recent lawsuit brought by employees under ERISA suggests employers should use care when taking employment action that might impact health benefits. As a result, employers and insurers should consider implementing and/or updating and revising their employment policies and procedures now.
Top 11 Employer FMLA Mistakes
Original post shrm.org
Employers should never take a holiday from dealing with the Family and Medical Leave Act’s (FMLA’s) requirements. Legal experts say the law is full of traps that can snag employers that let their guard down, and they recommend that employers shore up FMLA compliance efforts by avoiding the following common missteps.
No FMLA Policy
Employers shouldn’t skip having a written FMLA policy, Annette Idalski, an attorney with Chamberlain Hrdlicka in Atlanta, told SHRM Online. “If employers adopt a written policy and circulate it to employees, they are able to select the terms that are most advantageous to the company,” she said. For example, employers can choose to use a rolling 12-month period (rolling forward from the time any leave commences) rather than leaving the selection of the 12-month period to employees, who almost inevitably would choose the 12-month calendar period. The calendar period, unlike the rolling period, allows for employees to stack leave during the last 12 weeks of one year and the first 12 weeks of the new year. Check to see if state or local laws give employees the right to choose a 12-month period that would give them the right to stack leave.
Counting Light-Duty Work as FMLA Leave
Idalski said employers also often make the mistake of offering light-duty work to employees and counting it as FMLA leave. Light-duty work can be offered but must not be required in lieu of FMLA leave. For example, an employer can offer tasks that don’t require lifting to an employee who hurt his or her back and cannot perform heavy lifting. But if the worker wants the time off, the individual is entitled to take FMLA leave.
Silent Managers
Managers sometimes fail to tell HR right away when an employee is out on leave for an extended period, Idalski noted. If a manager waits a week to inform HR, that could delay the start of the 12-week FMLA period. The employer can’t make the FMLA leave retroactive, and letting the employee take more than 12 weeks of leave affects staffing and productivity, Idalski said. “Management must initiate the FMLA process with HR right away,” she emphasized.
Untrained Supervisors
Untrained front-line supervisors might retaliate against employees who take FMLA leave, dissuade workers from taking leave or request prohibited medical information, all of which violate the FMLA, said Sarah Flotte, an attorney with Michael Best & Friedrich in Chicago. Just because front-line supervisors shouldn’t administer FMLA leave doesn’t mean they shouldn’t be trained on the FMLA, she noted.
Missed Notices
Employers sometimes fail to provide required notices to employees, Flotte said. “The FMLA requires employers to provide four notices to employees seeking FMLA leave; thus, employers may run afoul of the law by failing to provide these notices,” Flotte remarked. Employers must give a general notice of FMLA rights. They must provide an eligibility notice within five days of the leave request. They must supply a rights and responsibilities notice at the same time as the eligibility notice. And employers must give a designation notice within five business days of determining that leave qualifies as FMLA leave.
Overly Broad Coverage
Sometimes employers provide FMLA leave in situations that are not truly FMLA-covered, such as providing leave to care for a domestic partner or a grandparent or sibling, noted Joan Casciari, an attorney with Seyfarth Shaw in Chicago. If they count that time off as FMLA leave, this could prove to be a violation of the law if the employee later has an event that is truly covered by the FMLA, she said. But the leave may count as time off under state or local FMLA laws, depending on their coverage.
Incomplete Certifications
Casciari added that employers sometimes accept certifications of a serious health condition that are incomplete and inconsistent. In particular, she said that businesses sometimes make the mistake of accepting certifications that do not state the frequency and duration of the intermittent leave that is needed.
No Exact Count of Use of FMLA Leave
Another common mistake is failing to keep an exact count of an employee’s use of FMLA leave, particularly in regards to intermittent leave, said Dana Connell, an attorney with Littler in Chicago. This failure is “highly dangerous,” he stated. An employer might give the employee more FMLA leave than he or she is entitled to. “The even greater risk is that the employer counts some time as an absence that should have been counted as FMLA, and that counted absence then plays a role—building block or otherwise—in an employee’s termination.”
No Adjustment to Sales Expectations
Some employers take too much comfort in an FMLA regulation that says that if a bonus is based on the achievement of a specific goal, and the employee has not met the goal due to FMLA leave, the payment of the bonus can be denied. “Notwithstanding that regulation regarding bonuses, courts have held that employers need to adjust sales expectations in assessing performance to avoid penalizing an employee for being absent during FMLA leave,” Connell emphasized.
Being Lax About FMLA Abuse
The FMLA is ripe for employee abuse, according to Connell, who said, “Some employers, especially in the manufacturing sector, find themselves with large numbers of employees with certified intermittent leave.” Those employers need a plan to keep all employees “honest with respect to their use of FMLA.” Connell said that surveillance may be a necessary part of an employer’s plan for dealing with potential FMLA abuse.
Overlooking the ADA
Employers sometimes fail to realize that a serious health condition that requires 12 weeks of FMLA leave will likely also constitute a disability under the Americans with Disabilities Act (ADA), noted Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. Even after 12 weeks of FMLA leave, more leave may be required by the ADA or state or local law as a reasonable accommodation.
“Document any adverse effects on productivity, ability to timely meet client demands and extra workload on co-workers resulting from an employee on extended FMLA leave,” Morris recommended. While the FMLA doesn’t have an undue hardship provision, “The information will be necessary for a proper analysis of whether any request by an employee for further leave as an ADA accommodation is reasonable or is an undue hardship” under the ADA.
- See more at: https://www.shrm.org/legalissues/federalresources/pages/top-11-employer-fmla-mistakes.aspx#sthash.kOREknrz.dpuf
IRS: Skip Form 5500’s Optional Compliance Questions
Original post shrm.org
The Internal Revenue Service (IRS) recently added new questions to the 2015 Form 5500 and 5500-SF (short form) annual retirement plan returns. The Form 5500 series of returns are used by retirement plans to report the financial condition, investments and operations of the plans to the Department of Labor (DOL) and IRS.
When the new IRS compliance questions were originally introduced, the IRS described the questions as optional for plan year 2015. However, in its most recent instructions, the IRS has specifically advised plan sponsors not to complete these questions for the 2015 plan year.
The IRS decision to delay completion is due to privacy and misreporting concerns raised by retirement plan administrators and advisors.
The new compliance questions are intended to aid the IRS in determining whether a retirement plan, such as a 401(k) plan, is in compliance with applicable law—in particular, how the plan is satisfying discrimination testing and making timely plan amendments. The new questions also ask whether the plan trust incurred unrelated business taxable income and if the plan made in-service distributions, such as hardships. Specifically, the following new lines were added:
Form 5500 Annual Return (Report of Employee Benefit Plan)
• Provide preparer information including name, address and telephone number.
Schedules H (Financial Informaiton) and Schedule I (Small Plan Financial Information)
• Did the plan trust incur unrelated business taxable income?
• Were in-service distributions made during the plan year?
• Provide trust information including trust name, EIN, and name and telephone number of trustee or custodian.
Schedule R (Retirement Plan Information) – New Part VII: IRS Compliance Questions
• Is the plan a 401(k) plan?
• How does the 401(k) plan satisfy the nondiscrimination requirements for employee deferrals and employer matching contributions?
• If the Average Deferral Percentage (ADP) test or Average Contribution Percentage (ACP) test is used, did the plan perform testing using the “current year testing method” for non-highly compensated employees?
• Did the plan use the ratio percentage test or the average benefit test to satisfy the coverage requirements under Section 410(b)?
• Does the plan satisfy the coverage and nondiscrimination tests by combining this plan with any other plans under the permissive aggregation rules?
• Has the plan been timely amended for all required tax law changes?
• Provide the date of the last plan amendment/restatement for the required tax law changes.
• If the plan sponsor is an adopter of a pre-approved master and prototype or volume submitter plan that is subject to a favorable IRS opinion or advisory letter, provide the date and serial number of that letter.
• If the plan is an individually-designed plan and received a favorable determination letter from the IRS, provide the date of the plan’s last favorable determination letter.
• Is the plan maintained in a U.S. territory?
Form 5500-SF Annual Return (Report of Small Employee Benefit Plan)
• Asks for all the information added to the Forms and Schedules above.
• Were required minimum distributions made to 5 percent owners who have attained age 70½?
When plan sponsors and plan administrators are eventually required to respond to these new questions, their responses could highlight plan compliance issues of which the plan sponsor or the IRS may not have been aware, and could lead to follow-up investigations from the IRS. The new questions are helpful guidance for plan sponsors to make certain that their 401(k) and 403(b) plans are in compliance.
5 things to know about the DOL fiduciary rule
Original post benefitspro.com
Tomorrow marks the last day the White House’s Office of Management and Budget will accept meetings with industry stakeholders hoping to influence the finalization of the Department of Labor’s fiduciary rule.
1. When will the DOL fiduciary rule be finalized?
That means a final rule could emerge as early as next week, but more likely by the end of the month, according to Brad Campbell, an ERISA attorney with Drinker Biddle.
Campbell and Fred Reish, who chairs Drinker Biddle’s ERISA team, addressed a conference call on the DOL rule’s potential impact.
Nearly 1,000 stakeholders participated, testament to the wide-ranging impact the rule is expected to have on advisors and service providers to workplace retirement plans and individual retirement accounts.
2. Will the DOL rule be stopped?
Several legislative efforts that would delay or defund the rule’s implementation, as well as strategies to address the rule through the appropriations process or the Congressional Review Act, are “real and substantive,” said Campbell, but stand little chance of blocking implementation of the rule.
“The likelihood that Congress can stop DOL is low,” said Campbell.
He expects more Democrats to find the rule to be problematic once it is finalized, but not enough to create the two-thirds majority needed to override a veto from President Obama, which would be all but guaranteed of any legislation Congress passes.
3. When would compliance be expected?
Campbell also said he expects the Obama Administration to waste little time making industry comply with the new rule. An end-of-year compliance date should be expected, he said.
“Obama is going to want to have a deadline in place before he leaves. That will make it much harder for the next administration to undue” the rule, said Bradford.
4. Will others try to block the rule?
While Congressional efforts to block the rule will likely prove impotent, Campbell said private lawsuits seeking to block the rule’s implementation are “a very real possibility.”
“DOL has done some things I think they lack the authority to do,” explained Campbell, who referenced a recent majority report from the Senate Committee on Homeland Security and Governmental Affairs.
That report alleged the Obama Administration was “predetermined to regulate the industry” and sought economic evidence to “justify its preferred action” in directing the DOL to write a rule that would expand the definition of fiduciary to include nearly all advisors to 401(k) plans and IRAs.
The report also claims DOL willfully ignored recommendations from the Securities and Exchange Commission, the Treasury Department and the OMB as it crafted its proposed rule.
Campbell called those arguments and others enumerated in the Committee’s report “legitimate.”
If lawsuits from stakeholders do emerge, courts may delay implementation of the rule as claims are litigated, but Campbell seemed to dissuade stakeholders from holding out too much hope for that possibility.
“No one can predict where the courts will go,” he said.
5. What will the fiduciary rule’s impact be?
Fully preparing for the rule’s impact is of course impossible before it is finalized.
Nonetheless, Campbell and Reish itemized the ways a final rule is likely to impact industry. They are hoping regulators address several vague areas of the proposal in the final weeks of the rulemaking process.
Still unknown is whether the rule will provide a grandfather provision for tens of millions of IRA accounts already in existence.
Also at question is the proposal’s education carve-out, which could greatly impact how service providers’ call centers interact with plan participants, and whether including specific funds in asset allocation models would rise to the level of fiduciary advice.
Campbell said he expects the DOL to finalize an education carve-out that is a bit more forgiving than what was initially proposed. He expects a final rule will allow specific investments to be mentioned, so long as a range of comparable options are offered as well.
There also is the question of whether or not 401(k) and IRA platform providers will be allowed to offer access to 3(21) and 3(38) fiduciaries, and whether or not doing so would be a fiduciary action.
But the biggest questions impacting a final rule’s ultimate impact relates to the proposal’s Best Interest Contract Exemption, said both Campbell and Reish.
How those exemptions are ultimately finalized will shape the IRA market and how providers and advisors recommend rollovers from 401(k) plans.
The attorneys said they expect a final rule to consider rollover recommendations a fiduciary act.
One concern for advisors will be when they need an exemption to advise on a rollover.
If general education on rollovers is offered, without advice, one natural consequence is that investors will ask advisors what they should do, said the attorneys.
“Is no advice better than so-called conflicted advice?” asked Reish rhetorically. “Prudent advice can still be prohibited” under the rule’s proposal, he said.
That fundamental question is likely to make whatever rule that emerges “extraordinarily disruptive” to the IRA market, the attorneys said.
CMS Issues 2017 Benefit and Payment Parameters Rule, Letter to Issuers and FAQ
Original post healthaffairs.org
On February 29, 2016, the Department of Health and Human Services released its final 2017 Benefit and Payment Parameters Rule (with fact sheet) and final 2017 Letter to Issuers in the Federally Facilitated Marketplaces (FFMs). It also released a bulletin on rate filings for individual and small group non-grandfathered plans during 2016, a frequently asked questions documenton the 2017 moratorium on the health insurance provider fee recently adopted by Congress, and a bulletin announcing that CMS intends to allow transitional (grandmothered) policies to continue (if states permit it) through December 31, 2017, rather than requiring them to terminate by October 1, 2017, as earlier announced.
The final payment rule and letter include most of the provisions proposed earlier, but differ in important respects.Here are a few headlines, focusing on issues of particular interest to health insurance consumers.
Standardized Plans
To begin, the final rule and letter adopt with a few changes proposals regarding standardized plans. Beginning in 2017, qualified health plan insurers would have the option of offering six standardized plans: a bronze, a gold, and a standard silver, as well as three silver plan options, at the 73 percent, 87 percent, and 94 percent actuarial-value levels, for individuals eligible for cost sharing reduction payments. The plans would have
- standard deductibles (ranging from $6,650 for the bronze plan to $3,500 for the standard silver to $250 for the 94 percent silver cost-sharing variation),
- four-tier drug formularies,
- only one in-network provider tier,
- deductible-free services (for the silver level plan including urgent care, primary care visits, specialist visits, and drugs),
- and a preference for copayments over coinsurance.
Insurers will not be required to offer standardized plans and could offer non-standardized plans (as long as they met meaningful difference standards), but standardized plans will be displayed in the marketplaces a manner that will make them easy for consumers to find.
Network Adequacy Requirements
The final rule and letter adopt some, but not all of the network adequacy requirements that were proposed, and delay some until 2018. The NPRM payment rule would have required states to adopt time and distance network adequacy standards for 2017 and imposed a federal default time and distance standard in states that failed to do so. The final rule backs off this requirement but provides that the FFM will itself generally apply quantitative time and distance standards in determining network adequacy for qualified health plans.
Provider Termination Notice
The final rule requires that health plans give patients 30 days notice when terminating a provider and continue to offer coverage for up to 90 days for a patient in active treatment by a provider who is terminated without cause. The insurer would only have to pay network rates to a provider for continuation coverage and the provider could balance bill. CMS is proceeding with its proposal to label health plans as to their relative network breadth on HealthCare.gov.
Out-Of-Network Bills At In-Network Facilities
CMS is not finalizing until 2018 a requirement the insurers apply to the in-network cost sharing limit the cost of services provided by out-of-network providers at an in-network facility; the agency is also weakening this already weak requirement. As finalized, the requirement only applies to ancillary providers, such as anesthesiologists or radiologists; can be avoided by giving notice (including form notice) 48 hours ahead of time or at the time of prior authorization that treatment might be received from out-of-network providers; and does not apply to balance bills as such where the provider bills for the difference between its charge and the network payment rate.
Open Enrollment Period And Procedures
Open enrollment for 2017 and 2018 will last from November 1 until January 31, as was true this year, but in future years, open enrollment will run from November 1 to December 15, to align enrollment with the calendar year. CMS is not finalizing until 2018 a proposal to allow applicants to remain on a web broker’s or insurer’s non-FFM website to complete a Marketplace applicant and enroll in coverage. Until then, web brokers and insurers will have to use the current direct enrollment process.
The rule changes the reenrollment hierarchy, requiring marketplaces to prioritize reenrollment in silver plans and allowing marketplaces to enroll consumers into plans offered by other insurers if their insurer does not have a plan available for reenrollment through the marketplace. Other proposals to change the reenrollment process were not adopted.
FFM User Fees In State Marketplaces
The final rule and letter finalize the status of state-based marketplaces using the federal enrollment platform, which this year included Hawaii, Oregon, Nevada, and New Mexico. In future years insurers in these states will pay a FFM user fee of 3 percent, but for 2017 the user fee will be 1.5 percent. The standard user fee for other FFM states will be 3.5 percent again for 2017.
Navigators In The FFMs
The final rule requires navigators in FFMs as of 2018 to provide consumers with post-enrollment assistance, including assistance with filing eligibility appeals (though not representing the consumer in the appeal), filing for shared responsibility exemptions, providing basic information regarding the reconciliation of premium tax credits, and understanding basic concepts related to using health coverage. Navigators will also be required to provide targeted assistance to vulnerable or underserved populations.
“Vertical Choice” In The FF-SHOPs
The final rule allows FF-SHOPs to offer a “vertical choice” option, under which employers could allow their employees to choose any plan at any actuarial level offered by a single carrier. This is in addition to the options currently available where employers can offer a single plan or any plans offered by an insurer at a single level. States could recommend against the FF-SHOP offering vertical choice in their states and states with state-based marketplaces using the FFM could opt out of making vertical choice available.
Fraud Prevention In The Medical Loss Ratio Calculation
CMS decided not to allow insurers to count fraud prevention expenses in the numerator in calculating their medical loss ratios, as it had suggested it might in the NPRM.
Other Topics
The insurer fee FAQ clarifies that insurers will not be charged the insurer fee for the 2017 fee year (which would have based the fee on 2016 data). Insurers are expected to adjust their premiums downward to account for the fact that they will not owe the fee.
CMS is allowing states to extend transitional plans, which antedate 2014 and do not have to comply with the 2014 ACA insurance reforms through the end of 2017. Earlier guidance had allowed insurers to renew transitional plans ending before October 1, 2017. CMS concluded that it would be better to allow people in transitional plans to transition into ACA compliant plans during the 2018 open enrollment period rather than having them start a new ACA compliant plan in October 2017 that would only last for three months, and then have to restart a new deductible on January 1, 2018.
There is much more in the rule and letter. The rule is well over 500 pages long, the letter almost 100. Watch for further installments over the next couple of days.
Using Compliance Reviews to Prepare Employers for Audit
Original post benefitsnews.com
A retirement plan sponsor has a fiduciary duty to ensure that the plan complies with all federal and state rules and regulations. Plan sponsors must follow the plan’s provisions without deviating from them unless the plan has been amended accordingly. Failure to follow the provisions can lead to plan disqualification. For the 2015 fiscal year, the Employee Benefits Security Administration reported that 67.2% of employee benefit plans investigated resulted in financial penalties or other corrective actions.
An operational compliance review can help. It’s different from a financial audit. An audit reviews the plan as it relates to the presentation of financial data; it is not designed to ensure compliance with all of ERISA’s provisions or other requirements applicable under the Internal Revenue Code. Operational compliance reviews, on the other hand, are concerned with validating the process being reviewed, with no restriction on whether it impacts the financials. An operational compliance reviewer wants to know that the process works, whether it is replicable, and consistent with the plan document.
Where to Begin
First, employers need to define the scope of the plan. To help define the scope, advisers and employers consider the following questions:
- Does the plan sponsor have a prototype, volume submitter, or individually designed plan document?
- Have there been any recent changes to the plan document?
- Have there been any changes to any of the service providers, including payroll and record keepers, over the past few years?
- Has the plan sponsor had to perform any corrections recently, perhaps without fully understanding how the errors occurred?
- Have there been any data changes or file changes as they are provided to the record keeper?
- Is there money in the budget to cover the review?
With the scope defined, a thorough operational compliance review should involve the following key steps:
- Review of the plan document and amendments, along with summary plan descriptions and a summary of material modifications;
- Review of required notices sent to participants, such as quarterly statements, initial and annual 404(a)(5) participant fee disclosures, Qualified Default Investment Alternative notices, safe harbor notices, etc.;
- Review of service provider contracts, such as record keepers and trustees/custodians;
- Discussions with the people who administer the plan, which may include the record keeper, trustee/custodian, payroll and benefits administration personnel;
- Review of plan administrative manuals, record keeper operational manuals, procedural documents and policy statements; and
- Review of sample participant transactions and data for each of the areas being reviewed.
Reviewing and comparing a record keeper’s administrative or operational manual with the plan document is an essential step in the review process. There tends to be a higher propensity for errors to occur when a record keeper is administering a plan that has an individually designed document versus its own prototype document. Lack of documented procedures can be cause for concern in ensuring the consistency and integrity of administering the plan, especially when there are any changes to the record keeping infrastructure, such as changes to plan provisions, modifications or upgrades to the record keeping system, or even personnel turnover.
While this process may lead to the discovery of errors you don’t necessarily want to find, you do want to gain perspective and overall confidence on your plan’s operations. Aside from finding errors, here are some things you should capture from an operational compliance review:
Areas of improvement for operational efficiency, including opportunities to maximize record keeper’s outsourcing capabilities;
- Answers to questions on whether the plan’s provisions and administration would be considered “typical”, and how they compare to industry best practices;
- An overall rating or report card of how a record keeper or service provider compares to industry peers; and
- Confidence that if your client’s plan is approached by the DOL or IRS, it’s ready for an investigation that will conclude with a letter saying “no further action is contemplated at this time”.
Embarking on an operational review may seem intimidating but, with a well-thought-out plan, process, and the right resources, a successful review will uncover potential issues that can be resolved the IRS or DOL arrive at your client’s door. The rewards for your efforts may include perspective on industry best practices and how you can operate the plan more efficiently.
Bill Would Allow Medicare-Eligible Retirees to Keep HSA Contributions
Original post businessinsurance.com
Health savings accounts are surging in popularity — and that can lead to some complications for older workers who enroll in Medicare.
Health Savings Accounts (HSAs) are offered to workers enrolled in high-deductible health insurance plans. The accounts are used primarily to meet deductible costs; employers often contribute and workers can make pretax contributions up to $3,350 for individuals, and $5,640 for families; the dollars can be invested and later spent tax-free to meet healthcare expenses.
Twenty-four percent of U.S. workers were enrolled in high-deductible health plans last year, according to the Kaiser Family Foundation - and 15% of them were in plans coupled with an HSA. That compares with 6% using HSA-linked plans as recently as 2010. Assets in HSA accounts rose 25% last year, and the number of accounts rose 22%, according to a report by Devenir, an HSA investment adviser and consulting firm.
But as more employees work past traditional retirement age, some sticky issues arise for HSA account holders tied to enrollment in Medicare. The key issue: HSAs can only be used alongside qualified high-deductible health insurance plans. The minimum deductible allowed for HSA-qualified accounts this year is $1,300 for individual coverage ($2,600 for family coverage). Medicare is not considered a high-deductible plan, although the Part A deductible this year is $1,288 (for Part B, it is $166).
That means that if a worker - or a spouse covered on the employer's plan - signs up for Medicare coverage, the worker must stop contributing to the HSA, although withdrawals can continue.
The normal enrollment age for Medicare is 65, but people who are still working at that point often stay on the health plans of their employers (more on that below). In certain situations, the worker or a retired spouse might enroll for some Medicare benefits. Moreover, if the worker or spouse claims Social Security, that can trigger an automatic enrollment in Medicare Part A and B.
That would require the worker to stop contributing to the HSA - and the contributions actually would need to stop six months before that Social Security claim occurs. That is because Medicare Part A is retroactive for up to six months, assuming the enrollee was eligible for coverage during those months. Failing to do that can lead to a tax penalty.
"The Medicare problem is a basic flaw in the way HSAs are designed," said Jody Dietel, chief compliance officer of WageWorks Inc, a provider of HSA and other consumer-directed benefit plans to employers.
Recognizing the problem, U.S. Senator Orrin Hatch and Representative Erik Paulsen proposed legislation last month that would allow HSA-eligible seniors enrolled in Medicare Part A (only) to continue to contribute to their HSAs.
The HSA complication is bound to arise more often as the huge baby boom generation retires, and as high-deductible insurance linked to HSA accounts continues to gain popularity among employers. High-deductible plans come with lower premiums - the average premium for individual coverage in a high-deductible health plan coupled with a savings option last year was $5,567 (the employee share was $868), KFF reports. By contrast, the comparable average premium for a preferred provider organization was $6,575 (with workers contributing $1,145).
Some experts also pitch HSAs as a tax-advantaged way to save to meet healthcare costs in retirement - although the HSA's main purpose is to help people meet current-year deductible costs, and employers often make an annual contribution for that purpose.
So far, there is not much evidence that large accumulations are building in the accounts. The average account total balance last year was $14,035, according to Devenir. The limits on contributions are one reason for that.
Deciding to delay a Medicare enrollment depends on your individual circumstances.
If you work for an employer with fewer than 20 workers, Medicare usually is the primary insurer at age 65, so failing to sign up would mean losing much of your coverage - hardly worth the tax advantage of continued HSA contributions. If you work for a larger employer, Medicare coverage is secondary, so a delayed Medicare filing is more feasible - so long as you or a spouse are not enrolled in Social Security. (Also make sure that the account in question is an HSA and not a Health Reimbursement Account - the latter is not a savings account and does not bring the Medicare enrollment problem into play.)
"We usually advise people to talk it over with a tax expert - it's more of a tax issue than a health insurance question," said Casey Schwarz, senior counsel for education and federal policy at the Medicare Rights Center, a nonprofit advocacy and consumer rights group.
Agencies Propose Revised SBC Template and Uniform Glossary
Original post shrm.org
The federal agencies overseeing the Affordable Care Act announced a 30-day comment period ending on March 28, 2016, regarding proposed revisions to the Summary of Benefits and Coverage (SBC) and related documents that employers must provide to eligible employees for each of their health plans, following the Feb. 26 publication of an official notice in the Federal Register.
The revisions could be effective for employer-provided plan years beginning with the second quarter of 2017.
On Feb. 25, the Departments of Labor (DOL), Treasury, and Health and Human Services (HHS) released the proposed revised SBC template and revised uniform glossary, along with revised instructions for group plans. Under the Affordable Care Act, SBCs and the uniform glossary must be given to new hires and to employees during open enrollment.
The agencies had issued a final rule regarding SBCs and related documents in June 2015. However, revisions to the SBC template and the uniform glossary were delayed to allow the agencies to complete consumer testing and receive additional input from the public and stakeholders.
Providing Plan Details
In an analysis posted at the Health Affairs Blog, Timothy Jost, a professor at the Washington and Lee University School of Law in Lexington, VA., noted that among the proposed changes the revised documents would:
• Better identify services covered before the deductible applies.
• Disclose whether the plan has “embedded” deductibles and out-of-pocket limits (under which enrollees in family coverage can meet individual deductibles or out-of-pocket limits before the family limits are met).
• Disclose more information on tiered networks in relation to coverage of common medical events.
Though it may not provide the clarity employers and employees are looking for, "on the whole, the proposed revised SBC is a distinct improvement over the current SBC,” commented Jost.