End of Year Employee Benefits Compliance Checklist

From ACA reporting to new federal regulations, employers are faced with several obligations as they close out the year and begin to plan for 2022. To help comply with your obligations, we have complied a list of important items that apply to employer-sponsored group health plans to either review and/or take action.

Prepare and Submit Affordable Care Act (ACA) Mandatory Reporting

The IRS has issued proposed regulations, which if finalized, would extend the annual furnishing deadlines for Internal Revenue Code (IRC) Sections 6055 and 6056 reporting under the Affordable Care Act (ACA) permanently. IRC Sections 6055 and 6056 outline reporting requirements for employers and providers to confirm whether individuals have acquired minimum essential coverage during the applicable plan year. Under IRC Section 6055, Forms 1094-B and 1095-B must be completed by providers of minimum essential coverage for all covered individuals. Applicable Large Employers can satisfy the reporting requirements under both Section 6055 and 6056 by filing Forms 1094-C and 1095-C. Filers must also furnish a 1095-B to each Responsible Individual or 1095-C statement to each full-time employee.

Since 2015, the IRS has provided an extension to the due date for furnishment of Forms 1095-B and 1095-C to individuals. Under the proposed regulations, a 30-day extension will be automatic for employers, health insurance issuers and government agencies to provide statements to individuals, extending the due date from January 31, 2022, to March 2, 2022. The permanent extension will also remove the ability for employers to request an extension for “good cause.” Note: if the deadline falls on a weekend or a legal holiday, the forms will be due the next business day. The proposed rules do not change the due dates for submitting the forms to the IRS, which remain February 28^th or March 31^st (if filing electronically).

Employers should also be aware that there would no longer be any good faith relief from penalties under Sections 6721 and 6722 in the event of an incorrect or incomplete reporting for Forms 1094-B, 1095-B, 1094-C and 1095-C for tax year 2021 and all future tax years. However, the proposed regulations may provide some relief to employers required to provide Form 1095-B to covered individuals. In certain situations, employers may not be penalized under IRC Section 6722 for failure to furnish if two requirements are satisfied: (1) the reporting entity prominently posts a notice on its website stating individuals may receive a copy of the 2021 Form 1095-B upon request, and (2) provide Form 1095-B within 30 days of receiving the request. Such relief is not extended to Form 1095-C.

The IRS proposed regulations are likely to pass and will be applicable to the upcoming 2021 ACA filing season.  We will provide updates as they become available.

The IRS has released final 2021 versions of Forms 1094-C, 1095-C, 1094-B and 1095-B

Send Open Enrollment Notices

Employers should prepare to deliver required open enrollment notices to employees. Required notices include, but are not limited to:

• CHIPRA Notice
• Women’s Health and Cancer Rights Act (WHCRA) Notice
• Medicare Part D Notices
• Wellness Program Notices
• Michelle’s Law Notice
• Notice of HIPAA Special Enrollment Rights
• HIPAA Privacy Notice

Employers should work with their IBP account team to confirm necessary notices are included with their open enrollment materials.

Send Plan Document Delivery

Employers and plan administrators are responsible for preparing and delivering Summary Plan Descriptions (SPDs) and other plan documents annually within 90 days of the individual being covered under the plan, regardless of whether the individual requests the documents. Failure to furnish the SPD following a written request by a participant, beneficiary or the DOL within 30 days may result in DOL penalties. Employers and plan administrators may distribute the required documents either electronically or non-electronically. It is crucial that necessary consent and documentation of receipt are received to ensure covered individuals receive the documents. Employers must also provide detail for covered individuals to request paper copies of the documents at no cost.

Electronic Delivery: Delivery can be made electronically via email to covered individuals’ work email, personal email or by posting the documents on the company intranet.

• Work Email: Documents can be delivered to an employee’s work email address so long as the work email is specifically for and used by the employee on a regular basis as part of daily work responsibilities. The email must include a statement to the significance of the documents and provide a transmission of receipt to the sender (i.e., delivery notice).
• Personal Email: If employees do not have a primary work-issued email address, they may elect to receive the documents to a personal email address. To do this, the employee must provide the employer with written consent and a personal email address for delivery.
• Company Intranet: Employers may post documents to a designated site on the internet provided they ensure employees have the ability to and can access these documents at will during and after business hours. Employers should send a separate notification either electronically or non-electronically to covered individuals notifying them of the availability of the documents.

Non-Electronic Delivery: Delivery can be made non-electronically if sent via U.S. Mail, hand delivered or published in company publications.

• S. Mail: Documents can be sent by first, second or third-class mail; however, if documents are sent via second or third-class mail, return and forwarding postage must be guaranteed and address correction is requested. If documents are sent in a format other than paper, i.e., memory stick, CD, etc., employers should obtain consent that the individual is able to access the information.
• Hand Delivery: Documents can be hand delivered to the covered individuals. Employers opting for this approach should obtain a confirmation of receipt from the individuals. It is not sufficient to merely leave the documents in a location frequented by participants.
• Company Publications: Documents can be included as a special insert in a periodical distributed to employees such as a company publication or a union newspaper. Employers should confirm the distribution list is up-to-date and comprehensive. If covered individuals are not part of the distribution list, additional methods of delivery should be used in conjunction.

Review 2022 Annual Contribution, Key Employee and Highly Compensated Employee Limits

The charts below indicate the contribution limits employers should be mindful of going into the 2022 plan year. Additionally, the minimum compensation thresholds used to determine Key Employees and Highly Compensated Employees has also increased for 2022.

Review Consolidated Appropriations Act (CAA)

The Consolidated Appropriations Act (CAA) has several provisions directly impacting employer’s health plans that will be effective in the coming weeks. These provisions are aimed at combating the rising health care costs with the goal of creating greater price transparency. Among other things, health care providers, third-party administrators and employers should be mindful of the following:

Gag Clauses: Employers sponsoring group health plans should not enter into any agreements with restrictions around disclosure of information relating to the cost and/or quality of care. Additionally, employers will be subject to an annual attestation requirement to prove compliance. This requirement was effective immediately upon signing of the CAA

Mental Health Parity and Addiction Equity Act (MHPAEA): Employers should be prepared to provide an analysis of their plan’s compliance with MHPAEA’s requirements on nonquantitative treatment limitations (NQTLs) upon request. The effective date for this requirement was February 10, 2021, so employers should be working with their vendors and conducting the necessary analysis, if they have not done so already.

Broker and Consultant Compensation Disclosure: Section 202 of the Consolidated Appropriations Act of 2021 (CAA) requires that agent, broker and consultant compensation (direct and indirect compensation) related to all group health plans and individual health insurance policies be disclosed for arrangements entered into, renewed or extended on or after December 27, 2021. Service providers, and their subcontractors or affiliates, will be required to provide the disclosure if the brokerage or consulting services are provided to ERISA-governed group health plans and the direct and/or indirect compensation expected from those services is at least $1,000.

Identification Cards and Provider Directory: Effective January 1, 2022, ID cards will need to include additional information regarding the deductibles and out-of-pocket maximums. Additionally, employer health plans must make available on a public website a list of providers and facilities that are in-network. This information must be verified and updated as necessary every 90 days. Employers should confirm with their vendors or TPAs that all necessary changes will be reflected on the ID cards and they are prepared to provide the necessary information for the directories for the new plan year.

Advanced Explanation of Benefits (EOBs) and Price Comparison Tool: Previously effective January 1, 2022, employer health plans must provide patients with advanced EOBs for specific services upon request. Employers must also prepare to offer price comparison resources and tools by phone and online. While this requirement is no longer effective January 1, 2022, employers should confirm next steps with their vendors and TPAs and ensure necessary contracts and plan documents are up to date.

Review No Surprises Act

Effective January 1, 2022, The No Surprises Act will ban surprise billing for ancillary care at in-network facilities and for emergency services. It will also limit high out-of-network cost sharing for emergency and non-emergency services. While there are still aspects of the No Surprises Act awaiting clarification, health care facilities and providers should still prepare to comply with the preliminary requirements by the effective date. There are three areas of the Act that health care providers and facilities should be mindful of as January 1 approaches. CMS has made available templates and resources for healthcare providers to ease the implementation process of the surprise billing requirements. These resources can be found here.

Public Disclosures: Health care providers and facilities must provide a one-page disclosure to patients and the public with a plain-language explanation of the prohibitions and requirements under the No Surprises Act. Disclosures must be publicly posted and available on a public portion of the provider or facility’s website, as well as provided to applicable patients prior to the patient being billed for the services. Group health plan and health insurance issuers will also be required to distribute notices to individuals for plan years beginning on or after January 1, 2022.

Balance Billing Prohibition: Health care providers and facilities will no longer be able to bill out-of-network patients directly. Facilities and providers will now be required to negotiate any payment amounts for out-of-network care with the patient’s health plan directly, rather than billing the patient and having the individual negotiate with the plan themselves.

Consent: Patients have the ability to waive the protections afforded by the No Surprises Act for certain nonemergency and ancillary services; however, notice and consent requirements apply. Patients must be provided a detailed written consent form at least seventy-two (72) hours prior to the procedure (or three (3) hours prior for same-day appointments). Additional guidance about the required consent is forthcoming, but providers and facilities should be mindful of this requirement and be prepared to comply by providing the necessary consent forms separate from any other forms sent to the individual.

Items On the Horizon to be on the Watch For

Vaccine Mandates: On September 9, 2021, President Biden announced his action plan to combat COVID-19, which among other things, included three vaccine mandates impacting the federal government, federal contractors, healthcare workers and facilities and employers with 100 or more employees.

• Healthcare Workers: Health care workers at Medicare and Medicaid participating facilities are required to receive at least their first dose of the COVID-19 vaccination by December 6, 2021 and to be fully vaccinated by January 4, 2022. As of November 30, 2021, a nationwide injunction was issued against the enforcement of the mandate.
• Federal Contractors: Executive Order 14042 established the requirement, as amended, for federal contractors and subcontractors to be fully vaccinated no later than January 18, 2022. On November 30, 2021, the U.S. District Court of the Eastern District of Kentucky issued a preliminary injunction halting the enforcement of the mandate in Kentucky, Ohio and Tennessee. The Court’s opinion does not impact the mandate for individuals outside of Kentucky, Ohio and Tennessee; however, employers should still be mindful that challenges to this mandate continue to move through the courts.
• Employers with 100 or more Employees: The Occupational Safety and Health Administration (OSHA) published its Emergency Temporary Standard (ETS) in the Federal Register on November 5, 2021, which established a vaccine mandate for employers with 100 or more employees as of November 5, 2021. Alternatively, employees were able to receive weekly testing if they chose not to or were unable to receive the COVID-19 vaccination. Shortly after its publication, the ETS was challenged in the U.S. Court of Appeals for several districts. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS. While the mandate is litigated in the courts, OSHA has suspended activities related to the implementation and enforcement of the ETS.

While the vaccine mandates make their way through the Courts, employers should prepare to comply in the event the challengers are unsuccessful, and the mandates are upheld. Employers are also able to implement their own vaccine mandates and policies if they choose.

At-home Rapid COVID-19 Tests: On December 2, 2021, President Biden announced a new plan to combat the rising cases of COVID-19 as the winter months approach. In addition to extending the mask requirement on public transit and requiring more stringent testing protocols for international travelers, at-home rapid tests would be fully reimbursable and free. As seen with on-site COVID-19 testing, plan participants would be able to submit for reimbursement to their insurance company the cost of the at-home rapid tests. For those that are uninsured or on Medicare or Medicaid, at-home tests will be sent to federal sites around the country to be handed out to individuals. The Department of Health and Human Services, Department of Labor and Treasury Department are expected to release guidance no later by January 15, 2022, regarding how many tests will be covered and the frequency in which individuals can obtain the tests. The plan does not apply retroactively to tests already purchased.

We would be more than happy to answer any questions you might have pertained to any of these obligations. Please feel free to contact your account team or email us at icomply@ibpllc.com.

Please note: This Compliance communication is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.