2016 End of Year Plan Sponsor “To Do” List: Health & Welfare

by Snell & Wilmer
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As 2016 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. Like last year, we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part 1 of the series covered executive compensation issues, Part 2 covers health and welfare plan issues, and Part 3 will cover qualified plan issues. Each Employee Benefits Update provides you with a “To Do” List of items on which you may want to take action before the end of 2016 or in early 2017. As always, we appreciate your relationship with Snell & Wilmer and hope that these “To Do” Lists help focus your efforts over the next few months.

Part 2 - Health & Welfare Plans “To Do” List

  • Consider Impact of Nondiscrimination Rules: Several important changes have occurred over the past year with respect to nondiscrimination in the provision of health benefits. Employers should consider each of the following issues, as applicable:
    • Section 1557 of the Health Care Reform Act: On May 18, 2016, the Office of Civil Rights issued final regulations implementing the nondiscrimination provision of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (collectively, the “Health Care Reform Act”). 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 the Department of Health and Human Services (“HHS”) on the basis of race, color, national origin, sex, age, or disability. The rule generally is effective July 18, 2016. However, group health plans and health insurance policies need not be modified to comply with Section 1557 until the first day of the first plan year beginning on or after January 1, 2017. Substantively, the final rule focuses, in part, on the provision of health services to transgender participants and prohibits the blanket exclusion of services designed to treat gender dysphoria and assist in gender transition. The rules shed little light on the scope of services that must be offered. Accordingly, employers may wish to evaluate the array of transgender benefits they might offer under their health programs. 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, and 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. Note that 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.
    • Federal Contractors:  Final regulations issued by the Office of Federal Contract Compliance Programs on June 15, 2016 extend 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.
    • Title VII of the Civil Rights Act of 1964: While Section 1557 of the Health Care Reform Act is limited to certain employers who receive federal financial assistance from HHS, the type of discrimination that the rules target may be prohibited by other federal laws. 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. Last year, the Equal Employment Opportunity Commission (the “EEOC”) ruled that discrimination based on sexual orientation is a form of sex discrimination under Title VII. Title VII provides a basis that spousal and domestic partner benefits should be sexual-orientation neutral, and that employers should offer some level of transgender coverage under their health plans. Case law in this area is developing.
  • Report and Pay Reinsurance Fees: The Health Care Reform Act 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 is $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.
  • Comply with Large Employer Shared Responsibility Rules if Applicable, or Pay Penalties: 2017 will be the third 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, which has been updated to reflect certain recent guidance. Most importantly, the revised Checklist:
    • now reflects how the penalties are adjusted each year (see footnote 7 of the Checklist for more information);
      • the $2,000 subsection (a) penalty is $2,080 for 2015, and $2,160 for 2016; and
      • the $3,000 subsection (b) penalty is $3,120 for 2015 and $3,240 for 2016.
    • explains how the 9.5% affordability threshold under the safe harbors  is adjusted each year;
      • the 9.5% threshold under the safe harbors is 9.56% for plan years beginning in 2015, 9.66% for plan years beginning in 2016, and 9.69% for plan years beginning in 2017.
    • includes a reminder that in determining affordability, employers must consider employer contributions, such as HRA contributions and flex and opt-out credits under cafeteria plans (see footnote 9 of the Checklist for more information);
    • refers to additional guidance in Notice 2015-87 on how hours of service are counted; and
    • includes a reminder that the Cadillac tax, which is now set to take effect in 2020, may impact coverage that may be offered in 2020 and later years.
  • Do Code Section 6055 and 6056 Reporting:
    • Small and Large Employers with Self-Insured Health Plans Must Report Minimum Essential Coverage (“MEC”): Starting in 2016, Section 6055 of the Internal Revenue Code (the “Code”), which was added by the Health Care Reform Act, required all entities providing MEC to submit information to the IRS concerning each covered individual for the 2015 calendar year. Reporting is again required in early 2017 for 2016, but the deadlines are earlier than they were last year. Section 6055 also requires these entities to provide statements containing similar information 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). 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 do the reporting. However, these employers may need to collect and provide employee information to the insurer so 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. For more information, please see our October 24, 2014 SW Benefits Update, “Section 6055 Reporting of Health Plan ‘Minimum Essential Coverage’ for Small and Large Employers.” Forms and instructions for 2016 for Section 6055 reporting can be accessed on the IRS webpage for providers of MEC.
    • Large Employers Must Report on Health Coverage Offered to Full-Time Employees: Starting in 2016, Section 6056 of the Code, which was also added by the Health Care Reform Act, required applicable large employers to report to the IRS information regarding health coverage offered to full-time employees for the 2015 calendar year. Reporting is again required in early 2017 for 2016, but the deadlines are earlier than they were last year. 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 2016. 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. For more information, please see our October 28, 2014 SW Benefits Update, “Section 6056 Reporting of Health Coverage Information for Large Employers.” Forms and instructions for 2016 for Section 6056 reporting can be accessed on the IRS webpage for large employers.
    • Reporting Deadlines: While the IRS provided an extended deadline for information reporting under Sections 6055 and 6056 for offers of coverage made in 2015, such extension does not apply for reporting offers of coverage for 2016. Instead, the following deadlines apply:

Section 6055:
Health Coverage Reporting

Form

Filing Deadline

Form 1095-B (to employees)

January 31, 2017

Form 1094-B (to IRS)

February 28, 2017 (paper filing)
March 31, 2017 (electronic filing)

 

Section 6056:
Employer-Provided Health Insurance Offer
and Coverage Reporting

Form

Filing Deadline

Form 1095-C (to employees)

January 31, 2017

Form 1094-C (to IRS)

February 28, 2017 (paper filing)
March 31, 2017 (electronic filing)

  • Continue to Track and Comply with Health Care Reform Changes: Employers should continue moving forward with implementation of the Health Care Reform Act. See our updated checklist that provides a more detailed summary of the principal requirements under the Health Care Reform Act, 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 Health Care Reform Act that apply to employer-sponsored group health plans. The Health Care Reform Act 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 Health Care Reform Act. Employers that have made any changes to their health plans or added a wellness component in 2016, 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 proving 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), and FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation regarding tobacco cessation interventions (Q1).
  • 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 Phase 2 HIPAA 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 Business Associate Agreements: Because of the HIPAA Phase 2 audits, 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.
  • Implement A Business Associate Agreement with Your Cloud Service Provider (“CSP”): In 2016, HHS released updated guidance on HIPAA and 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 recently issued guidance and developing case law. On May 16, 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. Keep in mind that, 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.
    • Consider Impact of Case Law: Additionally, case law in this area is changing. The recent decision in EEOC v. Orion Energy Systems, Inc., no. 1:14:-cv-01019 (E.D. Wis. 2016) held that the protections of the ADA safe harbor provision are extremely narrow and only apply to an employer’s wellness program under very limited circumstances. Significantly, the court declined to follow the holdings of Seff v. Broward County and EEOC v. Flambeau, which it believed were at odds with the recently issued final rule and the underlying purpose of the ADA. For background on the Flambeau decision, please see our April 11, 2016 SW Benefits Blog, "A Wellness Win for Employers, But Will it Last?". Employers that have been relying on the safe harbor for ADA compliance should consider the impact of the Orion decision, as well as that of the recently issued ADA and GINA final rules.
    • 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 Health Care Reform Act. 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 Health Care Reform Act, 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 Summaries of Benefits and Coverage (“SBC”): The Health Care Reform Act 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 earlier this year. The new template provides health care consumers with more detailed information about cost-sharing, deductibles, and out-of-pocket limits. The revised template must be used beginning with the first open enrollment period beginning on or after April 1, 2017. 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: As reported in our July 19, 2012 Health Care Reform Legal Alert, “Summary of Benefits and Coverage for Group Health Plans,” the Health Care Reform Act 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 amended during the five-year period and once every 10 years for other plans. SPDs may need to be updated.
  • 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 Health Care Reform Act 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 was originally scheduled to take effect for taxable years beginning after 2017, but subsequent legislation delayed this 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), and FAQs About Affordable Care Act Implementation Part 34 and Mental Health and Substance Use Disorder Parity Implementation (Q2-8). Audit activity regarding MHPAEA compliance is on the rise.
  • 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, and $2.17 for the fourth year. For the fifth year (i.e., plan years that end on or after October 1, 2016 and before October 1, 2017) the applicable dollar amount is projected to be $2.25. 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 were 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 2017, 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. For more information about cost-of-living changes in 2017, see our November 2, 2016 SW Benefits Blog, “IRS Announces 2017 Retirement Plan Dollar Limits.”

Health & Welfare Plan Dollar Limits

 

2016 Limit

2017 Limit

Annual Cost Sharing Limit (self-only coverage)

$6,850

$7,150

Annual Cost Sharing Limit (other than self-only coverage)

$13,700

$14,300

HDHP Out-of-Pocket Maximum (self-only coverage)

$6,550

$6,550

HDHP Out-of-Pocket Maximum  (family coverage)

$13,100

$13,100

Annual HDHP Deductible (self-only coverage)

Not less than $1,300

Not less than $1,300

Annual HDHP Deductible (family coverage)

Not less than $2,600

Not less than $2,600

Maximum Annual HSA Contributions (self-only coverage)

$3,350

$3,400

Maximum Annual HSA Contributions (family coverage)

$6,750

$6,750

Maximum HSA Catch-Up Contribution

$1,000

$1,000

Health FSA Maximum Election

$2,550

$2,600

 

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