PPI in the News Compliance Corner - March 8, 2018 Archive
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On Feb. 20, 2018, the DOL, HHS and Department of the Treasury (the Departments) issued a proposed rule to change the maximum duration of short-term, limited-duration coverage to less than 12 months (the current maximum duration is less than three months). The issuance of this proposed rule was a direct result of an executive order issued by President Trump in October 2017, which sought an extension of the short-term, limited-duration coverage allowed.

As background, short-term, limited-duration insurance is a type of coverage intended to fill temporary gaps in coverage when an individual is transitioning from one plan or coverage to another form of coverage. This type of coverage is exempt from the definition of "individual health insurance coverage" under the ACA and is, therefore, not subject to ACA provisions that apply to individual health insurance plans — including the requirement to provide coverage for essential health benefits, the prohibition on annual and lifetime dollar limits and prohibition on pre-existing condition exclusions. As a result, short-term, limited-duration insurance plans generally cost less than ACA-compliant plans.

In, 2016, the Departments published a final rule that restricted short-term, limited-duration insurance to less than three months (including any renewal periods), but key stakeholders, including state regulators, expressed concerns that the three-month limit could cause harm to some consumers, limit consumer options and have little positive impact on the risk pools in the long run. The new proposed rules address these concerns by reverting to an earlier definition of such insurance that permits this coverage up to 12 months.

In addition to extending the duration of coverage, the proposed rule also requires specific language to appear in the contract (and in any application materials) to help consumers understand the short-term, limited-duration coverage they're purchasing. There are two permissible versions of the notice, but both are intended to clearly communicate that the short-term, limited-duration coverage isn't required to comply with the federal requirements for health insurance, that the expiration of the coverage or loss of eligibility may require waiting until an open enrollment period and the coverage is not "minimum essential coverage" (which means the individual could later be exposed to a tax liability for failure to obtain MEC).

CMS is accepting comments on the proposed rule for 60 days until April 23, 2018.

Short-Term, Limited-Duration Insurance, Proposed Rule »

On March 1, 2018, the IRS released sample Notice CP 220J, which will notify applicable large employers (ALEs) that the IRS has charged them an employer shared responsibility payment (ESRP).

As background, this notice was preceded by the release of Letter 226J, which is the initial letter sent by the IRS notifying ALEs of a proposed ESRP (see the Nov. 14, 2017, edition of Compliance Corner for more information), and Forms 14764 (ALE's response to a proposed ESRP) and 14765 (list of employees receiving premium tax credit).

So, if the IRS concludes that an ALE in fact owes an ESRP, the IRS will send Notice CP 220J, soliciting the payment. Specifically, Notice CP 220J will show the assessed tax amount and provide the ALE with payment instructions. The ALE should carefully read the notice for the due date, amount due and payment options. The ALE won't have to submit payment before the notice is sent. In a situation similar to other assessed taxes, the ESRP will be subject to an IRS lien and the IRS may levy enforcement actions. Additionally, interest will accrue from the date of the notice and demand and will continue until the total amount due is paid in full.

Finally, if an ALE disagrees with the ESRP assessment being made by the IRS, various options are discussed on page two of the notice, including filing suit in a U.S. District Court and the opportunity to ask questions about the ESRP calculations.

Considering what we've seen in regards to these ESRP assessments, there are some compliance responsibilities ALEs should keep in mind for future filings. ALEs should make sure that offers of coverage are documented every year during open enrollment and that signed waiver forms are collected from any FTEs who decline the group health coverage. Additionally, employers should keep important records, such as payroll records, variable-hour tracking calculations, signed enrollment forms and copies of enrollment materials showing employee costs and coverage options.

Finally, ALEs should carefully consider and select a vendor, if appropriate, to populate and file Forms 1094-C and 1095-C. They also shouldn't assume the vendor will correctly populate the forms without any employer oversight. Generally, this means the ALE should ensure all IRS instructions for completing the forms are properly followed, that the indicator codes used in Lines 14 and 16 are correct before filing any 1095-C forms with the IRS and that filing and employee distribution is completed by the IRS deadlines each year. While a vendor may assist an employer with its reporting requirements, the responsibility and liability for such compliance remains with the employer.

Sample Notice CP 220J »
Understanding Your CP220J Notice »

On Jan. 18, 2018, HHS announced the 2018 federal poverty levels (FPL). The threshold for the 48 contiguous states is $12,140 for a single household and $25,100 for a household of four individuals. The thresholds are different for Alaska ($15,180 and $31,380, respectively) and Hawaii ($13,960 and $28,870, respectively).

The FPL plays an important role under the ACA. Individuals who purchase coverage through the exchange may qualify for a premium tax credit if their household earnings are within 100 percent to 400 percent of the FPL. Employers wishing to avoid a penalty under the employer mandate may use the FPL affordability safe harbor, which means the cost of an employee's required contribution for employer sponsored coverage does not exceed 9.56 percent (for 2018) of the single FPL. This means that the FPL affordability safe harbor threshold in the 48 contiguous states for 2018 would be $96.71 per month. As a reminder, the FPL safe harbor is only one of the affordability safe harbors; the other two are the rate of pay and Form W-2 safe harbors.

Employers should consider this adjustment to the FPL when determining whether their coverage is affordable, especially if they're using the FPL affordability safe harbor. The 2018 FPL is applicable beginning Jan. 13, 2018.

FPL Announcement »

In the last 12 months, there have been several changes to the preventive services that must be offered with no cost sharing. As background, the ACA requires non-grandfathered health plans to provide coverage for a range of preventive care services without cost-sharing requirements (such as copayments, deductibles or coinsurance requirements) for patients. The mandatory preventive care benefits required under the ACA include evidence-based screenings and counseling, routine immunizations, preventive services for children and youth, and preventive services for women.

The ACA's list of "Mandated Preventive Health Care Services" is subject to annual updates, and insurers and self-funded health plan administrators must ensure that their coverage requirements encompass each of the newly added items (as applicable) as of the first day of the plan year or policy year one year after the recommended update is issued. Additionally, plan documents, benefit schedules, summary plan descriptions (SPDs) and similar communications, and any related materials should be carefully reviewed and updated (where appropriate). Those updated documents should also be provided to plan participants.

The list for significant updates to the Mandated Preventive Health Care Services provided by the U.S. Preventive Services Task Force (USPSTF) are listed as follows (by order of effective date):

• Hearing Loss. Screening for hearing loss in newborn infants (no longer required)
• Depression (Adults). Screening for depression in the general adult population, including pregnant and postpartum women (mandated for plan years beginning on and after Jan. 31, 2017)
• Depression (Children and Adolescents). Screening for major depressive disorder (MDD) in adolescents aged 12 to 18 years (mandated for plan years beginning on and after Feb. 28, 2017)
• Aspirin. A low-dose aspirin for prevention of cardiovascular disease and colorectal cancer in adults aged 50-59 years who meet all of the following criteria:
  • Have a 10-year cardiovascular risk of 10% or greater
  • Aren't at increased risk for bleeding
  • Have a life expectancy of at least 10 years
  • Are willing to take low-dose aspirin daily for at least 10 years (mandated for plan years beginning on and after April 30, 2017)
• Colorectal Cancer. Screening for colorectal cancer starting at age 50 and continuing until age 75 (mandated for plan years beginning on and after June 30, 2017)
• Syphilis (Non-Pregnant Adults and Adolescents). Screening for syphilis infection in persons who are at increased risk for infection (mandated for plan years beginning on and after June 30, 2017)
• Latent Tuberculosis Infection. Screening for latent tuberculosis infection (LTBI) in populations at increased risk (mandated for plan years beginning on and after Sept. 30, 2017)
• Breastfeeding. Providing interventions during pregnancy and after birth to support breastfeeding (mandated for plan years beginning on and after Oct. 31, 2017)
• Statin. Adults aged 40-75 years with no history of cardiovascular disease (CVD) use a low- to moderate-dose statin for the prevention of CVD events and mortality when they have one or more cardiovascular disease risk factors, and a calculated 10-year CVD event risk of 10% or greater; screening for cardiac risk may include assessment of blood pressure, smoking status, screening for lipid disorders and use of ACC/AHA CVD to estimate 10-yr risk (mandated for plan years beginning on and after Nov. 30, 2017)
• Folic Acid. All women who are planning or capable of pregnancy take a daily supplement containing 0.4-0.8 mg (400-800 µg) of folic acid (mandated for plan years beginning on and after Jan. 31, 2018)
• Preeclampsia. Screening for preeclampsia in pregnant women with blood pressure measurements throughout pregnancy (mandated for plan years beginning on and after April 30, 2018)
• Obesity (Children and Adolescents). Screening for obesity in children and adolescents six years and older and offer to refer them to comprehensive, intensive behavioral interventions to promote improvements in weight status (mandated for plan years beginning on and after June 30, 2018)
• Vision (Children Aged 6 Months to 5 Years). Vision screening at least once in all children ages three to five years to detect amblyopia or its risk factors (mandated for plan years beginning on and after Sept. 30, 2018)

The Health Resources and Services Administration (HRSA) provided updates to the preventive services for women (incorporated into the Mandated Preventive Health Care Services), mandated for plan years beginning on and after Dec. 20, 2017:

• Breast cancer screening for average-risk women. Mammography exams are to be performed at least biennially beginning at age 40 through age 74 (but age is not a basis to discontinue screening)
  • Women at increased risk for breast cancer should undergo mammography "periodically"
  • Imaging tests, biopsies or other interventions are required to be considered an integral part of "Screening"
• Cervical cancer screening for average-risk women. Screening for cervical cancer:
  • For ages 21-29, PAP smear every 3 years
  • For ages 30-65, with cytology and human papillomavirus testing (HPV) testing with Pap smear every 5 years or a regular cytology alone (without HPV testing) every 3 years
  • Women with an average risk shouldn't be screened more than once every 3 years
• Contraception. Adolescent and adult women must have access to the full range of female-controlled contraceptives to prevent unintended pregnancies and improve birth outcomes; counseling and follow-up care are included in this requirement
• Screening for gestational diabetes mellitus. Pregnant women should be screened after 24 weeks of gestation, and women with risk factors for diabetes should be screened prior to 24 weeks of gestation
• Screening for human immunodeficiency virus (HIV) infection. Coverage for preventive education and risk assessment in adolescents and all women, based on risk, is mandated; education and assessment occur annually based on risk, but may be more frequent for increased-risk cases
• Screening for interpersonal and domestic violence. Annual screening for adolescents and women is required as is, when needed, the provision of or referral to initial intervention services, which include counseling, education, harm reduction strategies and referral to appropriate supportive services
• Counseling for sexually transmitted diseases. Annual, directed behavioral counseling by a health care provider or other trained provider for sexually active adolescent and adult women at increased risk
• Well-woman preventive visits. Preventive care visits to ensure that recommended preventive services (including preconception) are made on an annual basis, although several visits may be required, depending on health status and needs

The following are updates to the 2018 Immunization Practices provided by the Advisory Committee on Immunization Practices (ACIP) (incorporated into the Mandated Preventive Health Care Services). They are effective February 2018:

• Revised the immunization schedule for children and adolescents age 18 or younger, including:
  • Hepatitis B vaccine
  • Poliomyelitis vaccine
  • Human papillomavirus (HPV) vaccine
  • Influenza vaccine
  • Meningococcal vaccine
  • Haemophilus vaccine
  • Meningococcal B vaccine
• Updates to immunizations schedule for vaccines provided based on medical condition"
  • HIV
  • Pneumococcal
• Revised requirements for:
  • Diphtheria and tetanus toxoids
  • Acellular pertussis
  • Hemophilia
  • Influenza type B and pneumococcal vaccines

The revised nominated conditions to the Recommended Uniform Screening Panel (RUSP) mandated for plan years beginning on and after February 2017 include:

• Adrenoleukodystrophy (ALD)
• MPS I (alpha-L-iduronidase deficiency)

There are significant changes made to the Bright Futures/American Academy of Pediatrics – Bright Futures Project Recommendations, which are mandated for plan years beginning on and after May 1, 2018), and include:

• Updates to the timing and follow-up for a number of existing recommendations
• New bilirubin screening requirements for newborns
• New screening requirements for maternal depression
• Other changes as set forth in official detailed schedules

Though our Benefits Compliance team has provided these updates ad hoc in the past, going forward, we intend to summarize all changes to the Mandated Preventive Health Care Services list in October of each year so that plan sponsors have time to incorporate the new changes (if any) into the plan documents prior to the beginning of the then upcoming plan year.

Note: Plan sponsors (of non-grandfathered plans) should work with their medical and pharmacy benefit administrators to ensure that the new recommendations are implemented and determine if there's a cost impact to the plan. Further, the impact of some of these expansions is unknown, but it may be best to reach out to your stop-loss carrier to see if there are additional concerns.

USPSTF, Preventive Care Mandates »
HRSA, Women's Preventive Service Guidelines »
ACIP, 2018 Immunization Schedule for Children and Adolescents Aged 18 or Younger »
Recommended Uniform Screening Panel (RUSP) »
Bright Futures provided by the American Academy of Pediatrics »

On Feb. 26, 2018, the U.S. Court of Appeals for the Second Circuit held, in Zarda v. Altitude Express, Inc. (2018 WL 1040820) , that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964 ("Title VII"). As background, Title VII expressly prohibits discrimination on the basis of race, color, religion, sex or national origin. Although the EEOC currently agrees that sexual orientation discrimination violates Title VII, only one other appeals court (the Seventh Circuit) has ruled that discrimination due to sexual orientation also violates Title VII.

The plaintiff in this case was a skydiving instructor who was fired after indicating that he was a gay man. In addition to filing an EEOC complaint, he also sued the employer, claiming violations of New York state law and Title VII. The district court dismissed the portion of the complaint that alleged a Title VII violation, and the plaintiff ultimately appealed to the Second Circuit.

During the "en banc" hearing, the Second Circuit frequently referenced the Seventh Circuit decision that had previously come to the conclusion that discrimination based on sexual orientation violates Title VII. Specifically, the Second Circuit adopted the idea that sexual orientation discrimination is basically discrimination based on sex. As such, the case was remanded to the district court to determine if the employer did, indeed, discriminate in violation of New York state law and Title VII.

Although the Second and Seventh Circuits have now come to this conclusion, a panel of the Eleventh Circuit recently came to a contrary decision. Since there is a circuit split, the Supreme Court may ultimately have to decide this issue.

The unsettled federal law, as well as the fact that roughly 20 states have their own laws protecting citizens from discrimination based on sexual orientation, continues to make this issue an extremely litigious one. So employers should seek counsel if they'd like to pursue a policy that treats employees differently based on their sexual orientation.

Zarda v. Altitude Express, Inc . »

On Feb. 20, 2018 the Supreme Court of the United States (the Court) reversed an opinion by the U.S. Court of Appeals for the Sixth Circuit, which held that the health care benefits for a class of retirees vested for life. The case involved CNH Industrial N.V., CNH Industrial America LLC and their corporate predecessors (collectively, CNH), which manufacture construction and agricultural equipment. In 1998, CNH and the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) entered into a new collective bargaining agreement (CBA). The CBA provided health care benefits under a group benefit plan to certain retiring employees. The agreement also contained a clause stating that it would terminate in May 2004.

When it did expire in 2004, a class of CNH retirees and surviving spouses filed a lawsuit seeking a declaratory judgment that their health care benefits had vested for life and asked the district court to enjoin CNH from changing them. While that lawsuit was pending, the U.S. Supreme Court issued a decision in M&G; Polymers USA, LLC v. Tackett , holding that CBAs must be interpreted according to ordinary principles of contract law.

The District Court initially granted summary judgment to CNH. After the retirees moved for reconsideration, the District Court reversed itself and entered summary judgment for the retirees. On appeal, the Sixth Circuit ruled that the CBAs were ambiguous and thus susceptible to interpretation based on extrinsic evidence about lifetime vesting. Ultimately, the Sixth Circuit concluded that the benefits were vested. CNH petitioned the Court on Oct. 3, 2017.

The question before the Court was whether the Sixth Circuit erred in using a series of inferences to conclude that a CBA was ambiguous as a matter of law, thus allowing courts to consult extrinsic evidence about whether retiree benefits were vested for life. The Court held that CBAs generally must be interpreted according to ordinary principles of contract law, which generally hold that a contract isn't ambiguous unless it's subject to more than one reasonable interpretation.

The Supreme Court held that the only reasonable interpretation of the 1998 agreement between retirees and their former employer is that the health care benefits expired when the CBA expired in May 2004. Thus, the Court reversed the Sixth Circuit and remanded the case for further proceedings.

This case serves as an important reminder that employers should work with outside counsel to draft plan documents and CBAs, where applicable, to carefully and specifically address terms of the plan.

CNH INDUSTRIAL N.v., ET AL. v. JACK REESE, ET AL., (2018) »

On March 5, 2018, the IRS released Notice 2018-12, which addresses the impact of coverage for male sterilization and contraceptives on an individual's eligibility for HSA contributions. This is an important issue, as policies issued or amended in Maryland on or after Jan. 1, 2018, must provide coverage for male sterilization without cost-sharing for participants. Illinois and Vermont already have similar mandates for such coverage, with Oregon implementing the mandate effective 2019.

As a reminder, participants with qualified HDHP coverage aren't eligible for HSA contributions if they're eligible to receive benefits before the statutory annual deductible has been met. There's an exception for certain preventive care services, which may be covered without regard to the deductible without impacting an individual's eligibility for an HSA.

On that idea of preventive services, there had been confusion on this issue, as female contraceptive services are considered preventive care. Qualified HDHP participants may be eligible for benefits related to female contraceptive services prior to meeting the statutory annual deductible — and still remain eligible for HSA contributions. The IRS has clarified that while female contraceptive services are considered preventive care for HSA eligibility purposes, male sterilization and contraception are not. Therefore, an HDHP participant who is eligible for male sterilization coverage prior to meeting the statutory annual deductible isn't eligible to receive or make HSA contributions. In other words, the HDHP wouldn't be considered qualified HDHP coverage.

Importantly, though, the IRS has provided transition relief until 2020 for participants who are, have been or become participants in a health plan that provides benefits for male sterilization or male contraceptives without a deductible. Such individuals will continue to be eligible for HSA contributions until 2020.

The transition period gives states time to amend their mandated coverage, if desired. It also gives the IRS time to consider the appropriate standards for preventive care in regards to HSA eligibility. It also allows continued HSA eligibility (at least until 2020) for those that have already enrolled in a HDHP plan that covers male sterilization and/or contraception without charging any cost-sharing. The IRS is receiving comments on this issue as well as ways to expand the use and flexibility of HSAs.

IRS Notice 2018-12 »

On March 5, 2018, the IRS released Rev. Proc. 2018-18 (as part of Bulletin 2018-10). Due to changes made in the Tax Cuts and Jobs Act (2017 tax reform), certain adjustments needed to be made to inflation amounts. One of those adjustments is to the annual family contribution for HSA's in 2018. The family max contribution is decreased from $6,900 to $6,850. The single contribution limit remains unchanged at $3,450.

As a result, employers and administrators will need to change the maximum limits set in their payroll and benefit systems to ensure that employees do not go over the maximum contribution limit. For any employees that have already maxed out their family contribution for 2018 up to $6,900, the employer should work with the administrator to refund the $50 excess contribution as soon as possible (this needs to be done by April 2019 to avoid an excise tax). This change was announced right before we went to press; we will provide additional detail in the next edition of Compliance Corner .

Rev. Proc. 2018-18 »