Erwin Kratz – Page 12 – ERISA Benefits Law

ACA Automatic Enrollment Repealed

There is good news for employers with more than 200 employees in the recently announced budget deal: The deal repeals the automatic enrollment requirement that was originally enacted as part of the Affordable Care Act.

Section 1511 of the ACA required employers with health coverage that have more than 200 employees to automatically enroll new employees in their plan. The act also required employers to give new employees notice and the opportunity to opt out of the automatic enrollment. The DOL had previously delayed implementation of the provisions. With this repeal, employers will no longer need to worry about implementing this particular ACA requirement.

HR 1314

IRS Updated Plan Limits for 2016

IRS has announced the retirement plan and employee benefits limits for 2016. Most of the limits are unchanged. The exception is the HSA Maximum Contribution for Family increased $100 to $6,750. Here is a chart showing the limits for 2014 through 2016:

Type of Limitation	2016	2015	2014
415 Defined Benefit Plans	$210,000	$210,000	$210,000
415 Defined Contribution Plans	$53,000	$53,000	$52,000
401(k) Elective Deferrals, 457(b) and 457(c)(1)	$18,000	$18,000	$17,500
401(k) Catch-Up Deferrals	$6,000	$6,000	$5,500
SIMPLE Employee Deferrals	$12,500	$12,500	$12,000
SIMPLE Catch-Up Deferrals	$3,000	$3,000	$2,500
Annual Compensation Limit	$265,000	$265,000	$260,000
SEP Minimum Compensation	$600	$600	$550
SEP Annual Compensation Limit	$265,000	$265,000	$260,000
Highly Compensated	$120,000	$120,000	$115,000
Key Employee (Officer)	$170,000	$170,000	$170,000
Income Subject To Social Security Tax (FICA)	$118,500	$118,500	$117,000
Social Security (FICA) Tax For ER & EE (each pays)	6.20%	6.20%	6.20%
Social Security (Med. HI) Tax For ERs & EEs (each pays)	1.45%	1.45%	1.45%
SECA (FICA Portion) for Self-Employed	12.40%	12.40%	12.40%
SECA (Med. HI Portion) For Self-Employed	2.9%	2.90%	2.90%
IRA Contribution	$5,500	$5,500	$5,500
IRA catch-up Contribution	$1,000	$1,000	$1,000
HSA Max Single/Family	$3,350/6,750	$3,350/6,650	$3,300/6,550
HSA Catchup	$1,000	$1,000	$1,000
HSA Min. Annual Deductible Single/Family	$1,300/2,600	$1,300/2,600	$1,250/2,500

DOL Opinion Finds Stop Loss Policy is not a Plan Asset

DOL recently issued Advisory Opinion 2015-02A, concluding that an employer’s stop loss policy, purchased to manage the risk associated with its liabilities under a self insured medical plan, was not a Plan asset. This accords with our long held view that neither participant contributions toward the cost of their coverage, nor a stop loss insurance policy, need result in the creation of plan assets or trigger ERISA’s trust requirements. The relevant facts in Advisory Opinion 2015-02A:

The stop loss insurer would reimburse the Plan Sponsors only if, during the policy year, they pay benefit claims required under the Plans in excess of a pre-determined amount, or attachment point.
The insurance would not relieve the Plans of their obligations to pay benefits to Plan participants, and the stop-loss insurer has no obligation to pay claims of Plan participants.
The Plan Sponsors would be the named insured under the Policies.
Reimbursements to the Plan Sponsors would be made at the end of the calendar year after the Plan Sponsors have paid for plan benefits and presented appropriate stop-loss claims to the insurer for reimbursement.
The Policy would reimburse the Plan Sponsors only if the Plan Sponsors pay claims under the Plan from their own assets, so that the Plan Sponsors will never receive any reimbursement for claim amounts paid with participant contributions.
No monies attributable to employee contributions are used for paying premiums on the Policies.
Specifically, participant contributions are paid into the general account of the employer and recorded in a balance sheet. All health claims and other Plan expenses are paid from this general account.
The Plan Sponsor pays premiums for the Policies, or any other stop-loss insurance, exclusively from its general account.

Advisory Opinion 2015-02A

Exchange Notices to Employers When Employees Receive Premium Tax Credits

CMS just announced that, beginning in 2016, all Healthcare.gov exchanges will start to notify certain employers if one or more of their employees has received an advance payment of premium tax credits. As discussed previously here, an unintended consequence of this is that, if not properly handled, the employer’s receipt of these notices could increase the risk of a retaliation claim against employers under the ACA. Talk to your counsel about how you can segregate the information you receive in these notices from HR decision-makers, and whether you ought to respond if you learn an employee is getting a premium tax credit that you don’t think they should be eligible for (based on the coverage you are offering them).

Health Care Coverage Information Returns – Update

Final Versions of 2015 Health Care Information Reporting Forms Now Available

The Internal Revenue Service has released the final versions of two key 2015 forms and the related instructions that employers and insurers will send to the IRS and individuals this winter to report health care coverage they offered or provided. The IRS published these forms in 2014 and released draft forms and instructions for 2015 earlier this summer. The final forms and instructions for 2015 are largely unchanged from the previously released drafts.

The 2015 version of Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, and instructions used by employers with 50 or more full-time employees are now available on IRS.gov.

Form 1095-B, Health Coverage, and instructions primarily used by insurers and health coverage providers, including employers that sponsor self-insured plans, have been released as well.

The related document transmittal Forms 1094-B and 1094-C are also available on IRS.gov.

The health care law requires certain employers and providers to submit the 2015 forms to the IRS and individuals in early 2016. Though the forms were available for voluntary use in tax-year 2014, the upcoming tax season will be the first time that reporting is mandatory.

Now is the Time to Determine ALE Status

Employers that are applicable large employers should be taking steps now to prepare for the coming filing season. You must determine your ALE status each calendar year based on the average size of your workforce during the prior year. If you had at least 50 full-time employees, including full-time equivalent employees, on average during 2014, you are most likely an ALE for 2015.

In 2016, applicable large employers must file an annual information return – and provide a statement to each full-time employee..

If you will file 250 or more information returns for 2015, you must file the returns electronically through the ACA Information Reports system. You should review draft Publication 5165, Guide for Electronically Filing Affordable Care Act (ACA) Information Returns, now for information on the communication procedures, transmission formats, business rules and validation procedures for returns that you must transmit in 2016.

PBGC Issues Updated Final Rule on Reportable Events

On September 11, 2015, the Pension Benefit Guaranty Corporation (PBGC) published final rules updating its existing regulations and guidance for pension plans and plan sponsors regarding when and how they need to report various corporate and plan events to the PBGC. The updated rule is intended to make reporting more efficient and effective, to avoid unnecessary reporting requirements, and to conform PBGC’s reportable events regulation to changes in the law.

Changing the waiver structure

Under the regulation’s long-standing waiver structure for reportable events, which primarily focused on the funded status of a plan, PBGC often did not get reports it needed; at the same time, it received many reports that were unnecessary. This mismatch occurred because the old waiver structure was not well tied to the actual risks and causes of plan terminations, particularly the risk that a plan sponsor will default on its financial obligations, ultimately leading to an underfunded termination of its pension plan.

The final rule provides a new reportable events waiver structure that is more closely focused on risk of default than was the old waiver structure. Some reporting requirements that poorly identify risky situations — like those based on a supposedly modest level of plan underfunding — have been eliminated; at the same time, a new low-default-risk “safe harbor” — based on company financial metrics — is established that the PBGC believes better measures risk to the pension insurance system. This sponsor safe harbor is voluntary and based on existing, readily-available financial information that companies already use for many business purposes.

The final rule also provides a safe harbor based on a plan’s owing no variable-rate premium (VRP) (referred to as the well-funded plan safe harbor). Other waivers, such as public company, small plan, de minimis segment, and foreign entity waivers, have been retained in the final rule, and in many cases expanded, to provide additional relief to plan sponsors where the risk of an event to plans and the pension insurance system is low.

With the expansion in the number of waivers available in the final rule, PBGC estimates that 94 percent of plans covered by the pension insurance system will qualify for at least one waiver of reporting for events dealing with active participant reductions, controlled group changes, extraordinary dividends, benefit liability transfers, and substantial owner distributions.

Revised definitions of reportable events

The rule simplifies the descriptions of several reportable events and makes some event descriptions (e.g., active participant reduction) narrower so that compliance is easier and less burdensome. One event is broadened in scope (loan defaults), and clarification of another event has a similar result (controlled group changes). These changes, like the waiver changes, are aimed at tying reporting burden to risk.

Conforming to changes in the law

The Pension Protection Act of 2006 (PPA) made changes in the law that affect the test for whether advance reporting of certain reportable events is required. This rule conforms the advance reporting test to the new legal requirements.

Mandatory e-filing

The rule makes electronic filing of reportable events notices mandatory.

Final Reportable Events Rule

IRS Announces Significant Reduction in Determination Letter Program

On July 21, 2015, the IRS announced changes to the favorable determination letter program for qualified retirement plans. Employers that sponsor individually designed plans should take a close look at whether they can state their plans on a pre-approved plan document, particularly a volume submitter document, for the reasons explained in this post.

Most significantly, the IRS will eliminate the staggered 5-year determination letter remedial amendment cycles for individually designed plans as of January 2017. This means that, effective as of January 1, 2017, sponsors of individually designed plans will only be permitted to submit a determination letter application for qualification in two circumstances:

upon initial plan adoption; and
upon plan termination.

In addition, effective immediately, the IRS will no longer accept determination letter applications for individually designed plans that are submitted off-cycle, except for new plans and for terminating plans.

Implications for Plan Sponsors

These changes to the determination letter program increase the risk that document failures may get into, and remain for a long period of time in, plan sponsor’s qualified retirement plans. For example, a failure to adopt a required amendment to the plan document, which ordinarily would have been discovered and corrected in connection with the staggered 5-year determination letter remedial amendment cycle, could now persist for years or even decades before being discovered. Plan terminations will likely become more difficult, time consuming and costly if such errors are not discovered until the Plan submits for a favorable determination upon termination.

Plans that are stated on a pre-approved document (such as a volume submitter or prototype plan document) will continue to receive IRS opinion letters on the language in those plans. In addition, plan sponsors who adopt a volume submitter plan and make limited modifications to the approved specimen plan, which does not create an individually designed plan, will still be able to get a favorable determination on their plans every six years. These plans will thereby avoid the above risks.

For this reason, employers that sponsor individually designed plans should closely evaluate whether they can convert their plans to a pre-approved plan document, with a goal of completing the transition by January 1, 2017. Many individually designed plans may be able to fit onto a volume submitter plan with minor modifications, which will allow those sponsors to continue receiving a favorable determination lettre on their plan every six years.

Additional Guidance Expected from the IRS

The IRS has asked for comments, and expects to issue further guidance, regarding how it can assist plan sponsors that wish to convert individually designed plans to pre-approved plans.

We should also expect some changes to the IRS’s EPCRS correction program, to help correct errors that inevitably will increase as a result of this curtailment in the favorable determination letter program.

In addition, the IRS is considering ways to make it easier for plan sponsors that continue to sponsor individually designed plans to comply with the qualified plan document requirements, including:

providing model amendments,
not requiring certain plan provisions or amendments to be adopted if and for so long as they are not relevant to a particular plan (for example, because of the type of plan, employer, or benefits offered),
or expanding plan sponsors’ options to document qualification requirements through incorporation by reference.

IRS Announcement 2015-19

Final Rules Regarding Religious Accommodation of Contraceptive Coverage Mandate

On July 14, 2015 the IRS, DOL and HHS will jointly issue final rules regarding no additional cost preventive services, including contraceptive services, under the Affordable Care Act.

The final rules maintain the existing accommodation for eligible religious nonprofits, but also finalizes an alternative pathway for eligible organizations that have a religious objection to covering contraceptive services to seek an accommodation from contracting, providing, paying, or referring for such services. The rules allow these eligible organizations to notify HHS in writing of their religious objection to providing contraception coverage, as an alternative to filling out the form provided by the Department of Labor (EBSA Form 700) to provide to their issuer or third-party administrator. HHS and the DOL will then notify insurers and third party administrators of the organization’s objection so that enrollees in plans of such organizations receive separate payments for contraceptive services, with no additional cost to the enrollee or organization, and no involvement by the organization.

The alternative notice must include:

the name of the eligible organization and the basis on which it qualifies for an accommodation;
its objection based on sincerely held religious beliefs to covering some or all contraceptive services, as applicable (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable);
the plan name and type; and
the name and contact information for any of the plan’s third party administrators and health insurance issuers.

The departments issued a model notice to HHS that eligible organizations may, but are not required to, use.

Nothing in this alternative notice process (or in the EBSA Form 700 notice process) provides for a government assessment of the sincerity of the religious belief underlying the eligible organization’s objection.

In addition, the final rules provide certain closely held for-profit entities the same accommodations. Relying on a definition used in federal tax law, the final rules define a “closely held for-profit entity” as an entity that is not publicly traded and that has an ownership structure under which more than 50 percent of the organization’s ownership interest is owned by five or fewer individuals, or an entity with a substantially similar ownership structure. For purposes of this definition, all of the ownership interests held by members of a family are treated as being owned by a single individual. The rules finalize standards concerning documentation and disclosure of a closely held for-profit entity’s decision not to provide coverage for contraceptive services.

The final rules also finalize interim final rules on the coverage of preventive services generally, with limited changes.

Final Rules

Model Notice

IRS Ends Lump Sum Risk Transferring Programs in Defined Benefit Plans

Treasury Department and the IRS announced today in Notice 2015-49 that they intend to amend the required minimum distribution regulations under Code Section 401(a)(9) to address the use of lump sum payments to replace annuity payments being paid by a qualified defined benefit pension plan.

The revised regulations will provide that qualified defined benefit plans generally are not permitted to replace any joint and survivor, single life, or other annuity currently being paid with a lump sum payment or other accelerated form of distribution. These amendments to the regulations will apply as of July 9, 2015.

Background

Section 401(a)(9) prescribes required minimum distribution rules for a qualified plan under Code Section 401(a). Under the regulations, a defined benefit pension plan cannot permit a current annuitant to convert their annuity payments to a lump sum or otherwise accelerate those payments, except in a narrow set of circumstances specified in the regulations, such as in the case of retirement, death, or plan termination. In addition, the regulations permit annuity payments to increase “[t]o pay increased benefits that result from a plan amendment.”

A number of defined benefit plan sponsors have amended their plans pursuant to this “plan amendment” exception to provide a limited period during which certain retirees who are currently receiving joint and survivor, single life, or other life annuity payments from those plans may elect to convert that annuity into a lump sum that is payable immediately. These arrangements are sometimes referred to as lump sum risk-transferring programs because longevity risk and investment risk are transferred from the plan to the retirees.

In 2012, the IRS issued Private Letter Rulings to General Motors and Ford specifically approving such programs for those companies. See PLR 201228045 and PLR 201228051. While Private Letter Rulings do not apply to anyone other than the person to whom they are issued, many employers found support in those PLRs for their risk transfer programs. With the change in the regulations announced today, those PLRs no longer provide any support.

Conclusion

The Treasury Department and the IRS have concluded that a broad exception for increased benefits that would permit lump sum payments to replace rights to ongoing annuity payments (of the kind approved in the two 2012 PLRs) would undermine the intent of the required minimum distribution regulations. Therefore, the exception for changes to the annuity payment period provided in the regulations (as intended to be amended) will not permit acceleration of annuity payments to which an individual receiving annuity payments was entitled before the amendment, even if the plan amendment also increases annuity payments.

Notice 2015-49

Supreme Court Obergefell Decision Impacts Employer Welfare Benefit Plans

Today’s Supreme Court decision in Obergefell v. Hodges, requiring all 50 States to license same sex marriages, has two immediate implications for employer-sponsored welfare benefit plans:

1. Do your welfare benefit plan documents define “Spouse”, and if so, how?

If all of your operations are in a state that recognized same sex marriage before today’s ruling, then your welfare benefit plans probably already either do not contain a definition of “Spouse”, or they define “Spouse” by reference to state law. If that is true for you, then you probably do not need to amend your plan documents. You will automatically extend benefits to legally married same sex spouses, just as you have already done, since you operate in a state that recognized same sex marriage before today’s ruling.

However, if you operate in a state that did not recognize same sex marriage before today’s ruling, then your welfare benefit plans might define “Spouse” by reference to one man and one woman. If that is how your plan defines “Spouse”, you ought to discuss with ERISA counsel whether to change that definition.

In addition, even if you maintained an opposite sex definition of “Spouse” for your welfare benefit plans in states that previously recognized same sex marriage, you should revisit this issue in light of today’s ruling.

While welfare benefit plans are not required to offer spousal coverage, and therefore in concept could extend coverage only to a subset of Spouses (opposite sex spouses), this practice is more risky today than it was yesterday. Given the Obergefell holding – that same sex marriage is a fundamental right protected by the 14th Amendment, there are now significant risks associated with offering spousal coverage that is limited to opposite sex people.

Public sector employers cannot maintain such policies because they would be subject to a direct claim of employment discrimination based on the 14th amendment fundamental rights holding in Obergefell. A direct claim such as this in the private employment market would have significant weaknesses, at least in jurisdictions that do not prohibit discrimination on the basis of sexual orientation or preference. The reason? The 14th Amendment does not apply to private actors. However, additional circumstances, such as a disparate impact of such a provision on one sex or the other, could make such a claim viable.

Moreover, employers that maintain the opposite sex definition of “Spouse” will increasingly be out of the mainstream. This may be a good or a bad thing, depending on your market.

The point is, check your plan documents and talk to counsel about the implications of leaving them unchanged vs. changing them.

2. Do you offer Domestic Partner Coverage? If so is it limited to same sex domestic partners? Is it limited to domestic partners in states that did not recognize same sex marriage before today’s ruling?

In recent years many employers offered welfare benefits to same sex domestic partners, but may not have done so for opposite sex domestic partners, on the theory that same sex domestic partners could not get married. Other employers may have limited domestic partner coverage to states that did not recognize same sex marriage, again on the theory that this was only an issue on those states. This rationale has been breaking down as more states recognized same sex marriage, and it is now gone entirely.

You should revisit your decisions regarding domestic partner coverage in light of today’s ruling. Employers that limit domestic partner coverage in one of these ways need to decide whether to :

(a) continue offering coverage only to same sex domestic partners,

(b) extend coverage to all domestic partners (both same sex and opposite sex), or

There are serious risks associated with option (a) (continue offering coverage only to same sex domestic partners), for many of the same reasons discussed above, except that now, opposite sex unmarried domestic partners who do not get a benefit offered to same sex domestic partners might challenge those provisions.

Option (b) (extend coverage to all domestic partners) is a legally safer course, though it may have significant financial implications for employers. Extending benefits to same sex unmarried domestic partners was not very costly because not many people took up the offer. Extending those benefits to opposite sex unmarried domestic partners could be attractive to a much larger pool of your employees.

Option (c) (eliminate domestic partner coverage) might make logical sense, and may be the best alternative to (b). Bloomberg reports that this may in fact be a significant result of the ruling:

“A survey of large corporations released earlier this month showed that far fewer of them offer health coverage to unmarried heterosexual couples — 62 percent — than to same-sex domestic partners, at 93 percent.

That gap suggests less of a willingness to cover unmarried couples when legal marriage is an option. More powerfully, 22 percent of the companies said they plan to drop coverage of domestic partners as a response to a ruling that makes gay marriage a viable option nationwide.”

But there are both legal and practical risks associated with taking a benefit away from a group of employees.

Again, think about these issues, discuss them with counsel and make deliberate and informed decisions about how to deal with them, given your unique situation.