Healthcare Quality and Cost

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Join us as JA hosts our next Journey+ event featuring panelists from Healthcare Bluebook. This session will leverage data to provide insight and clarity for employers into the proven relationship and balance between healthcare quality and cost. 

During this session, you will gain actionable insight on :

  • - Level set understanding of quality and cost 
  • - Variances found in quality as well as cost
  • - Why is this problematic
  • - Marrying quality and cost
  • - Case studies

Walk away from this session with a deeper understanding and be ready to take action within your organization by joining us on June 24th at 10a ET.


Food Is Medicine

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Join us as JA hosts our next Journey+ event featuring panelists from Preventia Group. This session will tackle the important conversation on the medicinal qualities of food and how food impacts your health.

During this session you will gain actionable insight on :

  • - Defining how food is medicine
  • - How to tackle this, together
  • - The IMPACT of food

Walk away from this session with a deeper understanding and be ready to take action within your organization by joining us on May 18th at 10a ET.


What is Engagement: Addressing the Confusion and Misunderstanding

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Join us as JA hosts our next Journey+ event featuring the expertise of Todd Gross of Ngenio USA.

ENGAGEMENT is a trending topic that has encompassed many conversations of late and is actively on every employer's mind. During this interactive session, Todd will explore the following discussion points:

  • What is Engagement? Addressing the confusion and misunderstanding
  • What causes Engagement?
  • What can you do about it?
  • Using data and research to provide clarity and actionable steps

Walk away from this session with a deeper understanding and be ready to take action within your organization by joining us on May 5th at 10a ET.


Compliance Check - April 2021

OVERVIEW

March 2021 was an eventful month with regard to new guidance on recently passed legislation and expanded provisions from the IRS to provide relief to individuals and businesses impacted by the continuing COVID-19 pandemic. Most significantly, on March 11, 2021, the American Rescue Plan Act of 2021 (overview) was enacted into law which, in part, mandates that eligible individuals receive a six-month 100% COBRA.

Below is a summary of the many changes and updates for review.

IRS Notice 2021-21

Due to the COVID-19 national emergency, the Internal Revenue Service (IRS) released Notice 2021-21 (Notice) that extends the deadline for filing income returns on Form 1040, Form 1040-SR, Form 1040-NR, Form 1040-PR, Form 1040-SS, or Form 1040 (SP). The Notice extends the general April 15, 2021, deadline to May 17, 2021. The Notice provides that individuals with a deadline to file a claim for credit or refund of federal income tax filed on the Form 1040 series or on a Form 1040-X that falls on or after April 15, 2021, and before May 17,
2021, have until May 17, 2021, to file the claims for credit or refund.

The Notice also extends the deadline to file and furnish Form 5498 (individual retirement account (IRA) Contribution Information), Form 5498-ESA (Coverdell education savings account (ESA) Contribution Information), and Form 5498-SA (health savings account (HSA), Archer Medical Savings Account (Archer MSA), or Medicare Advantage Medical Savings Accounts (Medicare Advantage MSA) Information). The Notice extends the general June 1, 2021, deadline to June 30, 2021. The deadline for making contributions to IRAs, Roth IRAs, HSAs, Archer MSAs, and Coverdell ESAs has also been extended from April 15, 2021, to May 17, 2021.

 

PPE as Section 213(d) Qualified Medical Expenses

The Internal Revenue Service (IRS) released Announcement 2021-7 providing that amounts paid for personal protective equipment (PPE) such as masks, hand sanitizer and sanitizing wipes, for the primary purpose of preventing the spread of COVID-19, are qualified medical expenses under Internal Revenue Code Section 213(d). Therefore, these expenses are eligible for reimbursement from account-based plans, including health flexible spending arrangements (health FSAs), Archer medical savings accounts (Archer MSAs), health reimbursement arrangements (HRAs), and health savings accounts (HSAs). Note that if the expense is reimbursed under an account-based plan, it is not deductible for the taxpayer under Section 213 (no double benefit).

The IRS provides that group health plans, including health FSAs and HRAs, will need to be amended if the plans prohibit reimbursement of PPE. Group health plans may be amended to provide for such reimbursement of PPE expenses incurred for any period beginning on or after
January 1, 2020. Such an amendment must be adopted no later than the last day of the first calendar year beginning after the end of the plan year in which the amendment is effective. The amendment can have a retroactive effective date (unless it is adopted after December 31, 2022) if the plan is operated consistent with the terms of the amendment beginning on the effective date of the amendment. The IRS provides that the amendment will not cause plans to fail the Section 125 cafeteria plan requirements.

 

Executive Order on Strengthening Medicaid and the Affordable Care Act

3/24/2021 Update: CMS has extended the new special enrollment period for marketplaces using the Heathcare.gov platform until August 15, 2021. See the updated CMS FAQs for more information. On January 28, 2021, President Biden signed an Executive Order on Strengthening Medicaid and the Affordable Care Act. The Executive Order instructs the Department of Health and Human Services (HHS) to consider establishing a special open enrollment period (SEP) for individuals to enroll in or change their current coverage under federally facilitated health insurance marketplaces. The Centers for Medicare and Medicaid Services (CMS) initially established that the special enrollment period would begin on February 15, 2021, and would continue through May 15, 2021. CMS extended the SEP to apply from February 15, 2021, through August 15, 2021. This SEP will be available to individuals in the 36 states with marketplaces using the Healthcare.gov platform. Individuals can check their eligibility for this SEP on Healthcare.gov.

The Executive Order instructs HHS, the Department of Labor (DOL), the Department of the Treasury (Treasury), and all other executive departments and agencies with authorities and responsibilities related to Medicaid and the ACA (Agencies) to review all existing  regulations and other guidelines or policies (agency actions) as soon as possible to examine:

  • policies or practices that may undermine protections for people with pre-existing conditions, including complications related to COVID-19, under the ACA;
  • demonstrations and waivers, as well as demonstration and waiver policies, that may reduce coverage under or otherwise undermine Medicaid or the ACA;
  • policies or practices that may undermine the Health Insurance Marketplace or the individual, small group, or large group markets for health insurance in the United States;
  • policies or practices that may present unnecessary barriers to individuals and families attempting to access Medicaid or ACA coverage, including for mid-year enrollment; and
  • policies or practices that may reduce the affordability of coverage or financial assistance for coverage, including for dependents.

The Executive Order instructs the Agencies to suspend, revise, or revoke, as soon as possible, agency actions that are inconsistent with the policy of the Biden Administration to protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American. The Executive Order also instructs the Agencies to consider whether to issue additional agency actions to more fully enforce this policy.

Finally, the Executive Order revokes Executive Order 13765 Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal issued on January 20, 2017, and Executive Order 13813 Promoting Healthcare Choice and Competition Across the United States issued on October 12, 2017. As part of the review of agency actions, the Executive Order instructs the Agencies to consider, as soon as possible, whether to suspend, revise, or rescind agency actions related to these executive orders.

 

American Rescue Plan Act of 2021 – COBRA Premium Assistance

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (Act). The Act is a $1.9 trillion legislative package that includes pandemic relief for individuals and families. The Act contains several provisions including funding to the Centers for Disease Control and Prevention, stimulus checks, unemployment benefits, the child tax credit, tax credits for paid sick leave and family and medical leave, the Paycheck Protection Program, grants to state educational agencies, and low-income family assistance. The Act also contains several provisions affecting group health plans. This series of Advisors will focus on the provisions affecting group health plans. Below is an overview of the Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage premium assistance provisions contained in the Act.

The Act provides COBRA relief for assistance-eligible individuals. An assistance-eligible individual is an individual who is eligible for COBRA due to the COBRA qualifying event of termination of employment or reduction in hours, except for an individual’s voluntary termination of employment, and if he or she elects coverage during the period beginning April 1, 20201, and ending on September 30, 2021.

COBRA Premium Assistance

COBRA premiums for any period of coverage for an assistance-eligible individual covered under COBRA in the period of time beginning April 1, 2021, and ending on September 30, 2021, will be considered paid (that is, assistance-eligible individuals will not be required to pay the COBRA premiums). If an assistance-eligible individual pays any portion of the COBRA premiums, the amount must be reimbursed within 60 days of the date on which the individual made the premium payment.

Permitted Alternative (Different) COBRA Coverage

If an assistance-eligible individual enrolled in a group health plan experiences the COBRA qualifying event of termination of employment or reduction in hours, other than voluntary employment termination, an employer may choose to offer the COBRA-qualified individual different coverage (in addition to the offer of normal COBRA coverage) that is not the same plan as the plan the individual was covered under at the time the COBRA qualifying event. The individual must elect this coverage no later than 90 days after receiving notice of the option. The premium for this different coverage must not exceed the premium for coverage in which the individual was enrolled in at the time the qualifying event occurred. The different coverage in which the individual elects to enroll in must be coverage that is also offered to similarly situated active employees of the employer at the time the individual elects the different coverage. The different coverage cannot be a) coverage that only provides excepted benefits, b) a qualified small employer health reimbursement arrangement (QSEHRA), or c) a flexible spending arrangement (FSA). This coverage will be treated as COBRA coverage.

Extension of COBRA Election Period

An individual who a) does not have a COBRA election in effect on April 1, 2021, but who would otherwise be an assistance-eligible individual if an election were in effect; or b) elected COBRA continuation coverage, but discontinued the coverage before April 1, 2021, may elect COBRA continuation coverage during the period beginning April 1, 2021, and ending 60 days after the date on which the administrator of the applicable group health plan (or other entity) provides the additional notification, described below, to the individual.

Any COBRA continuation coverage elected by a qualified beneficiary during an extended election period noted above must begin on or after April 1, 2021, and will not extend beyond the maximum period of COBRA coverage that would have applied had the coverage had been elected and maintained without the extension.

Limitation of the COBRA Premium Subsidy

This COBRA premium subsidy will expire upon the earlier of:

    • The first date that the individual is eligible for benefits under Medicare or eligible for coverage under any other group health plan (not including coverage that a) only provides excepted benefits, b) is a QSEHRA, or c) is an FSA); or
    • The earlier of:
      • the date following the expiration of the applicable maximum COBRA coverage period due to the qualifying event, or
      • The end of the COBRA period that would have applied had the coverage had been elected and maintained without the extension.

An assistance-eligible individual must notify the group health plan when his or her premium subsidy period has expired as noted above. The Act provides that the Department of Labor (DOL) will determine the way the notice must be provided and the deadline by which the notice must be provided.

Notices to Individuals

The required COBRA election notice provided by the plan administrator to individuals that become eligible to elect COBRA continuation coverage during the period of time beginning April 1, 2021, and ending on September 30, 2021, must include an additional written notification (included in the election notice or by a separate document) to the recipient in clear language of the availability of the  premium assistance and the option to enroll in different coverage if the employer permits assistance-eligible individuals to elect enrollment in different coverage as described above. In a situation in which the election notice is not required to be provided by the
plan administer, the DOL and Department of Health and Human Services (HHS) will provide rules requiring the provision of such notice.

The additional notice must include:

    • the forms necessary for establishing eligibility for premium assistance;
    • the name, address, and telephone number necessary to contact the plan administrator and any other person maintaining relevant information in connection with such premium assistance;
    • a description of the extended election period noted above;
    • a description of the obligation of the qualified beneficiary to notify the group health plan when his or her premium subsidy period has expired and the penalty provided under section 6720C of the Internal Revenue Code of 1986 for failure to carry out this obligation;
    • a description, displayed in a prominent manner, of the qualified beneficiary’s right to a subsidized premium and any conditions on entitlement to the subsidized premium; and
    • a description of the option of the qualified beneficiary to enroll in different coverage if the employer permits the beneficiary to elect to enroll in different coverage.

In the case of any assistance-eligible individual (or any individual who qualifies for an extended election period noted above who became eligible to elect COBRA continuation coverage before April 1, 2021) the administrator of the applicable group health plan (or other entity) must provide, within 60 days after April 1, 2021, the additional notification required above. Failure to provide the additional notice will be treated as a failure to meet the election notice requirement under COBRA.

The Act instructs the DOL, HHS, and the Department of the Treasury to issue models for the additional notification described above no later than 30 days after the enactment of this Act.

The administrator of the applicable group health plan (or other entity) also must provide an assistance-eligible individual a written notice in clear language that the premium assistance will expire soon and must prominently identify the date the assistance will expire and that the individual may be eligible for COBRA or coverage under a group health plan without premium assistance. This notice must be provided no earlier than 45 days before the expiration date of the assistance and no later 15 days before the expiration date. Notice is not required to be provided if an individual’s premium assistance expires due to expiration of the COBRA coverage period or the date that the individual is eligible for benefits under Medicare or eligible for coverage under any other group health plan (not including coverage that a) only provides excepted benefits, b) is a QSEHRA, or c) is an FSA).

The Act instructs the DOL, HHS, and the Treasury to issue models for the premium assistance expiration notification described above no later than 45 days after the enactment of this Act.

Premium Assistance Credit

The employer maintaining the plan that is subject to COBRA (or the plan in the case of a multiple employer plan under Section 3(37) of ERISA; in all other cases, the issuer providing coverage) is entitled to a premium assistance credit against the FICA Medicare tax imposed on it. The amount of the premium assistance credit for each calendar quarter is equal to the amount of premiums not paid by assistance-eligible individuals. The credit allowed for each calendar quarter cannot exceed the tax imposed by Internal Revenue Code (IRC) Section 3111(b), or so much of the taxes imposed under section 3221(a) as are attributable to the rate in effect under Section 3111(b), for such calendar quarter (reduced by any credits allowed against such taxes under Sections 3131, 3132, and 3134) on the wages paid with respect to the employment of all employees of the employer. If the premium assistance credit that an employer is entitled to exceed this limitation, the excess amount must be treated as an overpayment by the employer and refunded to the employer. The premium  assistance credit may be advanced according to forms and instructions provided by the IRS. Note that the IRS will waive penalties for failure to pay the FICA Medicare tax up to the premium assistance credit amount if the IRS determines that the failure was due to the anticipation of the credit. If an entity overstates the amount of credit it is entitled to, this will be treated as an underpayment of the FICA Medicare tax.

No premium assistance credit will be allowed for any amount that is taken into account as qualified wages under the employee retention credit or qualified health plan expenses under the federal paid sick leave and paid family and medical leave credit.

The premium assistance credit applies to premiums and wages paid on or after April 1, 2021.

 

American Rescue Plan Act of 2021 – DCAPs and Exchange Health Insurance

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021. The Act is a $1.9 trillion legislative package, which contains several provisions intended to relieve employers and families from some of the economic burdens associated with COVID-19. The Act contains funding for the Centers for Disease Control and Prevention, stimulus checks, unemployment benefits, a child tax credit, tax credits for paid sick leave and family and medical leave, the paycheck protection program, grants to state educational agencies, and low-income family assistance. The Act also contains several provisions affecting group health plans.

Increase in the Maximum Exclusion Under DCAPs

The Act increases the maximum amount that can be excluded from an employee’s income under a dependent care flexible spending arrangement (DCAP) from $5,000 to $10,500 if the employee is married and filing a joint return or if the employee is a single parent ($2,500 to $5,250 for individuals who are married but filing separately) for any taxable year beginning after December 31, 2020, and before January 1, 2022. An employer may amend a DCAP to apply this increased limit retroactively to January 1, 2021, if the amendment is adopted no later than the last day of the plan year in which the amendment is effective and the plan is operated consistent with the terms of the amendment during the period beginning on the effective date of the amendment and ending on the date the amendment is adopted.

Expanded Premium Tax Credit Eligibility and Lower Required Contribution Percentages on the Health Insurance Marketplace/Exchange

For the taxable years of 2021 and 2022, the Act has expanded eligibility for the premium tax credit for individuals who purchase health insurance on an Exchange. Under the Act, there is no upper income limit on individuals who are eligible for a premium tax credit for 2021 and 2022 (under the existing Patient Protection and Affordable Care Act (ACA) rules, the premium tax credit is limited to individuals with household income between 100% and 400% of the federal poverty level (FPL)). The Act also lowers the percentage of household income that individuals must contribute for health insurance coverage purchased on an Exchange.

In the case of an individual who has received, or has been approved to receive, unemployment compensation for any week beginning during 2021, for that taxable year an Exchange must not take into account any household income of the individual in excess of 133 percent of the poverty limit for a family of the size involved.

 

Mandatory Coverage of COVID-19 Vaccines Under Group Health Plans

3/5/2021 Update: ACIP recommended the Janssen (Johnson & Johnson) vaccine.

On December 11, 2020, the Food and Drug Administration (FDA) issued an Emergency Use Authorization for the Pfizer-BioNTech COVID-19 vaccine (Pfizer vaccine). The following day, December 12, 2020, the Centers for Disease Control Advisory Committee on Immunization
Practices (ACIP) issued an interim recommendation for use of the Pfizer vaccine in persons aged 16 years or older for the prevention of COVID-19.

On December 18, 2020, the FDA issued an Emergency Use Authorization for the Moderna COVID-19 (mRNA-1273) vaccine (Moderna vaccine). The following day, December 19, 2020, ACIP issued an interim recommendation for use of the Moderna vaccine in persons aged 18 or older for the prevention of COVID-19.

On February 27, 2021, the FDA issued an Emergency Use Authorization for the Johnson & Johnson COVID-19 vaccine. The following day, February 28, 2021, ACIP issued an interim recommendation for use of the Johnson & Johnson vaccine in persons aged 18 or older for the
prevention of COVID-19.

Alternative COVID-19 vaccines are likely to be approved by the FDA under emergency authority in the coming weeks. Group health plans are encouraged to prepare to cover the cost of the Pfizer, Moderna, Johnson & Johnson, and other approved COVID-19 vaccines.
Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), non-grandfathered individual and employer-sponsored group health plans are required to cover the entire cost of preventative services by not imposing cost-sharing in the form of deductibles, copays, coinsurance or other amounts on the following:

  • An item, service, or immunization that is intended to prevent or mitigate the coronavirus disease and is an evidence-based item or service that has a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF); and
  • An immunization that is intended to prevent or mitigate the coronavirus disease that has a recommendation from ACIP with respect to the individual involved.

The CARES Act requires that the above services be covered as preventive care 15 business days after the date on which a recommendation is made by the USPSTF or ACIP relating to the service. Accordingly, non-grandfathered individual and group health plans must cover the Pfizer vaccine as preventive care no later than January 5, 2021 (based on the December 12, 2020, recommendation from ACIP), the Moderna vaccine as preventive care no later than January 12, 2021 (based on the December 19, 2020, recommendation from ACIP), and the Johnson & Johnson vaccine as preventive care no later than March 19, 2021 (based on the February 28,
2021, recommendation from ACIP).

ACIP has recommended that only health care personnel and residents of long-term care facilities receive the vaccine in the initial phase (Phase 1a) of the COVID-19 vaccination program. ACIP previously recommended that during Phase 1b, the vaccine should be distributed to essential workers such as members of the education sector, food and agriculture, utilities, police, firefighters, corrections officers, and transportation. ACIP has revised this recommendation so that during Phase 1b the vaccine should be offered to persons aged 75 years or older and frontline essential workers (non–health care workers).

ACIP previously recommended that during Phase 1c, the vaccine should be distributed to adults with high-risk medical conditions and adults aged 65 years or older. ACIP has revised this recommendation so that during Phase 1c, the vaccine should be offered to persons aged 65 to 74 years old, persons aged 16 to 64 years old with high-risk medical conditions, and essential workers not recommended for vaccination in Phase 1b.

Phase 2 includes all other persons aged 16 years or older that are not included in Phases 1a, 1b, or 1c.

Employers should ensure that their non-grandfathered group health plans, whether self-insured, or fully insured through carriers, are prepared to cover COVID-19 vaccines as provided under the CARES Act and that the plan documents reflect such coverage. Further, participant communications should be distributed that provide information regarding the availability of COVID-19 vaccinations with no cost-sharing. Grandfathered plans are not required to cover COVID-19 vaccines under the CARES Act. However, employers with such plans should review their plan documents to determine whether COVID-19 vaccines are or should be covered.

 

EBSA Disaster Relief Notice 2021-01

3/2/2021 Update: The DOL issued EBSA Disaster Relief Notice 2021-01 providing that the outbreak period relief noted below ends on the earlier of one year from the date an individual or plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency. As of the date of this writing, the COVID-19 National Emergency has not ended.

On March 13, 2020, former President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak and by a separate writing made a determination, under Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, that a national emergency exists nationwide beginning March 1, 2020, as the result of the COVID-19 outbreak.

The Department of Labor (DOL) recognizes that the COVID-19 outbreak may impede efforts to comply with various requirements and deadlines under the Employee Retirement Income Security Act (ERISA). As a result, the DOL’s Employee Benefits Security Administration (EBSA) issued Disaster Relief Notice 2020-01 (Notice 2020-01) that applies to employee benefit plans, employers, labor organizations, and other plan sponsors, plan fiduciaries, participants, beneficiaries, and covered service providers. Notice 2020-01 supplements the extended
timeframes final rule issued by the DOL and the Department of the Treasury.

ERISA Notice and Disclosure Relief

In addition to the final rule, Notice 2020-01 provides an extension on deadlines for furnishing other required notices or disclosures to plan participants, beneficiaries, and other persons to grant plan fiduciaries and plan sponsors additional time to meet their obligations under Title I of ERISA during the COVID-19 outbreak. This extension applies to the furnishing of notices, disclosures, and other documents required by provisions of Title I of ERISA over which the DOL has authority, except for those notices and disclosures addressed in the final rule. See the DOL Reporting and Disclosure Guide for Employee Benefit Plans for an overview of the various notice and disclosure requirements under Title I of ERISA.

Under the EBSA Disaster Relief Notice 2021-01, an employee benefit plan and the responsible plan fiduciary may disregard the period from March 1, 2020, and ending on the earlier of one year from the date the plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency when determining the date that a notice or disclosure must be provided under Title I of ERISA. This relief will only apply if the plan and responsible fiduciary act in good faith and furnish the notice, disclosure, or document as soon as administratively practicable under the circumstances. Good faith acts include use of electronic alternative means of communicating with plan participants and beneficiaries whom the plan fiduciary reasonably believes have effective access to electronic means of communication, including email, text messages, and continuous access websites.

Plan Loans and Distributions

The DOL has taken a temporary non-enforcement position on retirement plan loan and distribution procedural deficiencies. Under Notice 2020-01, retirement plans that do not follow procedural requirements for plan loans or distributions imposed by the terms of the plan, will not be treated as in violation of Title I of ERISA if: 1) the failure is solely attributable to the COVID19 outbreak; 2) the plan administrator makes a good-faith diligent effort under the circumstances to comply with those requirements; and 3) the plan administrator makes a reasonable attempt to correct any procedural deficiencies, such as assembling any missing documentation, as soon as administratively practicable. The relief is limited to the DOL’s authority under Title I of ERISA and does not extend to Title II of ERISA, which contains provisions analogous to those under the Internal Revenue Code and subject to the jurisdiction of the IRS, such as the spousal consent rules for distributions.

Under Notice 2020-01, the DOL will not consider any person to have violated Title I of ERISA, including the requirement that the loan be adequately secured by the account balance, solely because: 1) the person made a plan loan to a qualified individual during the loan relief period in compliance with the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the provisions of any related IRS notice or other published guidance; or 2) a qualified individual delayed making a plan loan repayment in compliance with the CARES Act and the provisions of any related IRS notice or other published guidance.

Notice 2020-01 provides that an employee pension benefit plan may be amended to provide the relief for plan loans and distributions described in section 2202 of the CARES Act and the DOL will treat the plan as being operated in accordance with the terms of the amendment prior to its adoption if: 1) the amendment is made on or before the last day of the first plan year beginning on or after January 1, 2022, or such later date prescribed by the Secretary of the Treasury, and 2) the amendment meets the conditions of section 2202(c)(2)(B) of the CARES Act.

Participant Contributions and Loan Repayments

Under Notice 2020-01, as amended by Notice 2021-01, the DOL will not take enforcement action with respect to a temporary delay in forwarding participant payments and withholdings to employee pension benefit plans during the period from March 1, 2020, and ending on the earlier of one year from the date the plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency if the delay is solely attributable to the COVID-19 outbreak. However,  employers and service providers must act reasonably, prudently, and in the interest of employees to comply as soon as administratively practicable under the circumstances.

Blackout Notices

Notice 2020-01 provides individual account plan administrators with relief from the requirement that 30 days’ advance written notice be provided to participants before implementing a blackout period that restricts participants’ ability to direct investments and to obtain loans and other distributions from the plan. The relief is available when a plan administrator is unable to comply with the advance notice requirement due to events beyond the reasonable control of the plan administrator. The DOL will not require plan administrators to make a written determination when seeking relief from the 30 days’ advance notice requirement due to a pandemic, such as COVID-19.

General ERISA Fiduciary Compliance

Notice 2020-01 provides that plan fiduciaries should make reasonable accommodations to prevent the loss of benefits or undue delay in benefits payments and should attempt to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes. The DOL recognizes that there may be instances when plans and service providers may be unable to achieve full and timely compliance with claims processing and other ERISA requirements. The DOL notes that it will implement grace periods and other relief where appropriate, including when physical disruption to a plan or service provider’s principal place of business makes compliance with pre-established timeframes for certain claims’ decisions or disclosures impossible.

The DOL will continue to monitor the effects of the COVID-19 outbreak and may provide additional relief when necessary.

 

Final Rule on the Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Due to COVID-19

3/2/2021 Update: The DOL issued EBSA Disaster Relief Notice 2021-01 providing that the outbreak period relief noted below ends on the earlier of one year from the date an individual or plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency. As of the date of this writing, the COVID-19 National Emergency has not ended. If a deadline noted below fell on March 1, 2020, it would be extended until February 28, 2021 (one year from March 1, 2020). However, if a deadline fell after March 1, 2020, the deadline would be extended to a date after February 28, 2021 because the extension is up to one year following the deadline or 60 days after the announced end of the COVID-19 National Emergency, if earlier.

On March 13, 2020, former President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak and by separate letter made a determination, under Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, that a national emergency exists nationwide beginning March 1, 2020, as the result of the COVID-19 outbreak.

The Department of Labor (DOL) and the Department of the Treasury (Treasury) issued a final rule that extends certain timeframes under the Employee Retirement Income Security Act (ERISA) and Internal Revenue Code (IRC) for group health plans, disability, and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID-19 national emergency. The timing extensions are issued to help alleviate problems faced by health plans to comply with strict ERISA and IRC timeframes and problems faced by participants and beneficiaries in exercising their rights under health plans during the COVID-19 national emergency. The final rule provides the timeframe extensions based on the end date of the “national emergency” (as of the date of this publication, the national emergency end date has not been announced) and the end date of the “outbreak period” which is the 60th day after the end of the national emergency. Under EBSA Disaster Relief Notice 2021-01, the end of the outbreak period relief is the earlier of one year from the date they were first eligible for relief (extension period), or the original outbreak period of 60 days after the announced end of the national emergency. Under the final rule the outbreak period will be disregarded, meaning the timeframes for the group health plan requirements noted below will be paused until after the outbreak period has ended.

HIPAA Special Enrollment Periods

Under HIPAA, group health plans must provide special enrollment periods in certain circumstances, including when an employee or dependent loses eligibility for any group health plan or other health insurance coverage in which the employee or the employee’s dependents were previously enrolled (including coverage under Medicaid and the Children’s Health Insurance Program), and when a person becomes a dependent of an eligible employee by birth, marriage, adoption, or placement for adoption. Generally, group health plans must allow such individuals to enroll in the group health plan if they are otherwise eligible and if enrollment is requested within 30 days of the occurrence of the event (or within 60 days, in the case of loss of Medicaid or state Children’s Health Insurance Program (CHIP) coverage or eligibility for state premium assistance subsidy from Medicaid or CHIP).

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining if a participant timely requested HIPAA special enrollment (i.e., the 30-day or 60-day period will begin to run the day after the outbreak period). See the Appendix for examples.

COBRA

The COBRA continuation coverage provisions generally provide a qualified beneficiary a period of at least 60 days to elect COBRA continuation coverage under a group health plan. Plans are required to allow payment of premiums in monthly installments, and plans cannot require payment of premiums before 45 days after the day of the initial COBRA election. COBRA continuation coverage may be terminated for failure to pay premiums on time. Under the COBRA rules, a premium is considered paid on time if it is made no later than 30 days after the first day of the period for which payment is being made. Notice requirements prescribe time periods for employers to notify the plan of certain qualifying events and for individuals to notify the plan of certain qualifying events or a determination of disability. Notice requirements also prescribe a time period for plans to notify qualified beneficiaries of their rights to elect COBRA
continuation coverage.

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the 60-day COBRA election period, the date for making COBRA premium payments, and the date for qualified beneficiaries to notify the plan of a qualifying event or determination of disability. The outbreak period must also be disregarded when determining the date by which a COBRA election notice must be provided to a qualified beneficiary. See the Appendix for examples.

Claims Procedure

ERISA-covered employee benefit plans and non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage are required to establish and maintain a procedure governing the filing and initial disposition of benefit claims, and to provide participants with a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary. Plans may not have provisions that unduly inhibit or hamper the initiation or processing of claims for benefits. Further, group health plans and disability plans must provide participants at least 180 days following receipt of an adverse benefit determination to appeal (60 days in the case of pension plans and other welfare benefit plans).

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the date for participants to file a benefit claim under the plan’s claims procedures and the date by which a
participant may file an appeal of an adverse benefit determination under the plan’s claims procedure.

External Review Process

ERISA sets forth standards for external review that apply to non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage and provides for either a state external review process or a federal external review process. Standards for external review processes and timeframes for submitting claims to the independent reviewer for group health plans or health insurance issuers may vary depending on whether a plan uses a state or federal external review process. For plans or issuers that use the federal external review process, the process must allow at least four months after the receipt of a notice of an adverse benefit determination or final internal adverse benefit determination for a request for an external review to be filed. The federal external review process also provides for a preliminary review of a request for external review. The regulation provides that if such request is not complete, the federal external review process must provide for a notification that describes the information or materials needed to make the request complete, and the plan or issuer must allow a claimant to perfect the request for external review within the four-month filing period or within the 48-hour period following the receipt of the notification, whichever is later.

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the date by which a participant may file a request for an external review after receiving an adverse benefit determination or final internal adverse benefit determination and the date by which a participant must file a corrected request for external review upon a finding that the request was not complete.

Plan Administrator/Fiduciary Obligations Regarding the End of the Outbreak Period

The DOL instructs that if the plan administrator or other responsible plan fiduciary knows, or should reasonably know, that the end of the outbreak period for an individual action is exposing a participant or beneficiary to a risk of losing protections, benefits, or rights under the plan, the administrator or other fiduciary should consider sending a notice regarding the end of the outbreak period. The DOL also notes that plan disclosures issued prior to or during the pandemic may need to be reissued or amended if such disclosures failed to provide accurate information regarding the time in which participants and beneficiaries were required to take action (e.g., COBRA election notices and claims procedure notices). The DOL provides that group health plans should consider ways to ensure that participants and beneficiaries who are losing coverage are made aware of other coverage options that may be available to them, including the opportunity to obtain coverage through the Health Insurance Marketplace in their state.

The DOL acknowledges that there may be instances when full and timely compliance with ERISA’s disclosure and claims processing requirements by plans and service providers may not be possible, such as when pandemic or natural disaster-related disruption to a plan or service provider’s principal place of business makes compliance with pre-established time frames for certain claims’ decisions or disclosures impossible. The DOL will take into account fiduciaries that have acted in good faith and with reasonable diligence under the circumstances when enforcing ERISA requirements.


Pandemic Brings Increased Awareness To Mental Health Support Need

The Growing Mental Health Need

 

Rarely has there been a greater need for mental health support than now. Before the pandemic, there were already shortages of mental health professionals. For example, there were 45 psychologists or psychiatrists for every 100,000 Americans. In some places, that ratio was just one professional per every 30,000 people. Additionally, Mental Health America data reveals almost a quarter of adults with a mental illness say they aren’t able to get the treatment they need. As the pandemic continues to strain health care resources and take a toll on personal well-being, there are some ways to still receive mental health support. Telehealth is a great place to start to receive mental health care via video conferencing.

 

Additional Mental Health support resources include:

  • Your primary care doctor, who can point you in the direction of mental health resources
  • State psychological associations Work-based wellness and employee assistance programs
  • The SAMHSA’s National Helpline, which is free, confidential and available 24/7 by calling 800-662-HELP (4357) providing mental health support
  • The United Way’s free and confidential service for community mental health resources

There’s hope on the horizon with COVID-19 vaccine rollouts, but the pandemic is still evolving. Stay in touch with loved ones to offer mental health support and continue to check in with yourself,  and do not be afraid to reach out for mental health help.


VIDEO: Impact of the ARPA on FFCRA for Employers

On March 10, 2021 Congress passed the American Rescue Plan Act (ARPA) of 2021, which was signed into law on March 11th. The ARPA attempts to address and help mitigate some of the far-reaching financial impacts of the COVID-19 pandemic. Some of these changes had an impact on the rules for employers regarding paid leave under the Families First Coronavirus Relief Act.

Take a moment to watch this quick video overview to ensure you are in compliance with the new rules in order to be eligible for the employer tax credit under the FFCRA. For a more detailed breakdown, download Changes to FFCRA Employee Leave Under the ARPA.

 


2021 Findings: 2020's Impact on Group Health Plans

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Join us as JA's own, Doug Johnson joins panelists Mary Delaney MS, PT, CWP (President, Vital Incite), and Dave Watt (Director, Indiana Large Group Sales, Anthem) to explore and compare early 2021 observations while looking back at claims utilization and financial impact as a result of the COVID-19 pandemic. During this interactive discussion, you will discover:

  • *Normalized (pre-pandemic) claims utilization review, budget planning, and tracking
  • *How the pandemic has disrupted utilization
  • *The predicted future impact
  • *Best practices and modifying strategies for evolving through a pandemic

Be informed and prepared to succeed in 2021 by joining our experts on February 26th at 9 am ET.


Pandemic drives business support for paid leave, study finds

new study has found strong support from U.S businesses for a national paid leave policy after months of navigating the coronavirus pandemic and the ensuing recession.

Researchers found that 75% of U.S. companies and U.K.-based companies with U.S. operations said they support a government leave plan to help cope with future public health and economic crises. So far during the COVID-19 outbreak, 1 in 5 U.S. workers have taken a leave of some kind.

More than 40 companies of various sizes were surveyed in the study conducted by the nonprofit groups Promundo and Paid Leave for the U.S., which promote gender equity and paid leave policies, respectively.

The U.S. is alone among 41 industrialized countries in not guaranteeing paid sick or parental leave, according to the Organization for Economic Cooperation and Development. President Joe Biden has introduced a $1.9 trillion stimulus bill featuring temporary paid leave amid signs that support is on the rise on Capitol Hill and in corporate America for paid leave legislation.

“We’re beginning to see is a real demand for a permanent public policy solution,” said Annie Sartor, senior director of business partnerships at Paid Leave for the U.S.

The Families First Coronavirus Response Act passed at the onset of the pandemic included two weeks of paid sick leave and as much as 10 weeks of paid family or medical leave for employers with fewer than 500 employees. It expired in December.

Biden’s current proposal includes provisions for as much as 14 weeks of paid sick, family and medical leave and a significant expansion of eligibility. The plan could reach as many as 106 million more Americans than the last emergency bill, expanding coverage to workers at companies with fewer than 50 employees.

Biden’s rescue plan is “a first step” toward permanent legislation, said Michelle McGrain, director of congressional relations at the National Partnership for Women & Families.

“The lack of paid leave in this country was a huge crisis,” she said. “That crisis has continued throughout the pandemic and will continue to exist if big, structural changes are not engaged.”

Almost 45% of companies said more than half of the employees who took leave were women, who often bear the brunt of household and care-giving responsibilities.

Gary Barker, chief executive officer and founder of Promundo, said companies with leave programs cut their job losses, especially for women. In December, women accounted for all of the net jobs lost in the U.S., with 156,000, while men gained 16,000 jobs, according to the U.S. Bureau of Labor Statistics.

“It points to the importance of making leave normal for women and men, and for us to achieve the equality in salaries that women deserve,” Barker said.

Barker said companies in nations with mandatory leave have built a workplace culture that doesn’t penalize taking time-off.

“Workers worry about taking it,” particularly in the U.S., Barker said. “European countries, because they’ve been doing this for a very long time, you’re not considered a slacker because you take leave.”

SOURCE: Gardner, A. (26 January 2021) “Pandemic drives business support for paid leave, study finds” (Web Blog Post). Retrieved from https://www.benefitnews.com/articles/pandemic-drives-business-support-for-paid-leave-study-finds


Addicted: How employers are confronting the U.S. opioid crisis

The COVID-19 pandemic has killed more than 381,000 Americans, but the isolation and remote work environment caused by the rapidly spreading disease has exacerbated an already terrible opioid epidemic in the country.

In the 12 months prior to May 2020, the U.S. recorded 81,230 drug overdose deaths, an 18.2% increase over the previous 12-month period, according to the Centers for Disease Control and Prevention.

The CDC announced in December that overdose deaths had already accelerated in the months before the coronavirus came to the U.S., but sped up even more during the pandemic.

“The disruption to daily life due to the COVID-19 pandemic has hit those with substance use disorder hard,” says Robert Redfield, the director of the CDC. “As we continue the fight to end this pandemic, it’s important to not lose sight of different groups being affected in other ways. We need to take care of people suffering from unintended consequences.”

One way to do that is to better educate the public about the opioid crisis, the nature of addiction and how employees and their families can seek help during times of crisis. Congress acknowledged the problem in its latest pandemic relief bill, including $4.25 billion for mental health services to address the recent surge in substance abuse, anxiety, depression and suicidal thoughts.

Shatterproof, a nonprofit organization founded to help people better understand the nature of addiction, created an educational platform for employers to teach their employees about addiction and the many resources available to them. The goal is to destigmatize addiction so that people who are being negatively affected by it can continue to work and get help for themselves and their families.

“The problem with addiction and COVID is that drugs and alcohol are used to self-medicate people, to temporarily make them feel better when they are not feeling great,” says Stephen D’Antonio, executive vice president of Shatterproof.

Add the fear and anxiety associated with the coronavirus, or the economic hardship associated with losing their job or having their hours cut, and “it’s almost a perfect storm,” he said.

Employers are the first to admit that employee opioid and alcohol addiction costs them a lot of money every year in the form of healthcare treatments and missed work. But, before COVID-19, employees didn’t have a lot of free time to do drugs or drink while at work. With remote work, they are even more isolated from society and nobody is around to see them drinking or taking drugs.

“Employers, as the decision makers of health plan design, have the unique ability to educate and build support systems for employees, particularly those at-risk,” said Cigna’s Dr. Doug Nemecek, chief medical officer for behavioral health. “This not only improves the health of employees, it improves the culture and overall wellbeing at the organization.”

Cigna offers many programs to help its clients and customers overcome and prevent opioid addiction, including comprehensive pain management and narcotics therapy management programs, pharmacy coverage oversight, and designated centers of excellence for substance use.

Ilyse Schuman, senior vice president of health policy for the American Benefits Council, said that the opioid crisis and mental health issues in general go hand in hand, and there is a general lack of access to qualified mental health providers and behavioral specialists in the United States.

“Our employer plan sponsor members are very concerned and very focused on addressing the mental health aspects of the pandemic too,” Schuman says. “If any good can come from this horrible, horrible pandemic and the fact that so many people have lost their lives and so many people are suffering in silence is to highlight the importance of really addressing the opioid crisis nationwide and the mental health crisis,” she said.

Telehealth has allowed benefit providers to expand access to services like behavioral and mental health during the pandemic. The digital platform removes some of the barriers that health professionals face regarding where and how they can practice medicine.

“Employers are at the cutting edge of innovative strategies. In respect to behavioral health, they realize the importance of taking the stigma away from it. They are figuring out how to bring it out of the closet to communicate the importance of availability, of access to support services for them,” Schuman says.

In 2019, the State of Minnesota worked with the Minnesota Business Partnership to develop an opioid toolkit for employers who were looking for additional resources to help their employees. In Minnesota, drug overdose deaths increased 31% during the first half of 2020 compared to the first half of 2019, according to Sam Robertson, community overdose prevention coordinator for the Minnesota Department of Health. Most of those deaths were attributed to synthetic opioids like fentanyl that are used in both prescription and illicit drugs.

The goal of the toolkit is to show people that substance use disorder is a preventable and treatable illness and to present it in a user-friendly way so that employers of any size and type could address substance use in the workplace.

Addressing the opioid crisis in the workplace “is good for business,” said Dana Farley, drug overdose prevention unit supervisor for the Minnesota Department of Health.

The state worked with Shatterproof to develop the content of its toolkit.

Shatterproof’s Just Five program gives employers five steps they can take to be part of the opioid epidemic response. Each lesson is just five minutes long and uses video, animation and expert testimony to encourage people to get professional help, get educated, get support from people going through the same thing and take care of themselves.

The program has been adopted by major employers like General Electric, JPMorgan Chase and McKinsey.

“One of the big reasons people don’t seek help is they are worried about their employer finding out about their addiction,” D’Antonio says. This program helps get the message across that their employers stand behind them and want to get them the help they need.

 

SOURCE: Gladych, P. “Addicted: How employers are confronting the U.S. opioid crisis” (Web Blog Post). Retrieved from https://www.benefitnews.com/news/addicted-how-employers-are-confronting-the-u-s-opioid-crisis


Managers and employees have different attitudes about their COVID workplace

Managers and employees have always had different attitudes about work, and the COVID pandemic has widened that gap even furthur. This divided workforce means most managers believe in the support their company provides, while fewer employees think their employer genuinely cares about them.

Seventy-seven percent of managers feel like their employer genuinely cares about their overall well-being, compared to only 55% of employees, according to a recent survey from Limeade, an employee engagement platform. Similarly, 78% of managers feel as though their employer has engaged in initiatives or offered services to support employee well-being since the start of COVID, compared to 66% of employees.

“This pandemic has not only added to stressors in our life, it’s also taken away some resources we’ve all relied on, like spending time with loved ones, building relationships with coworkers, and getting to explore the world around us,” says Reetu Sandhu, senior manager of the Limeade Institute. “You can see this in the drop that both groups report for their well-being.”

Pre-pandemic, 96% of managers and 86% of employees said that they had favorable well-being levels, Limeade found. However, since the start of the pandemic, those figures have plummeted to 73% of managers and 59% of employees reporting positive well-being.

In a recent one-on-one interview, Sandhu shared what these discrepancies mean for employers and how companies can work to close the gap between employee and manager attitudes in the workplace.

How has the pandemic increased the disparity between managers and employees in the way they view their employers?
The pandemic has emphasized factors that have always been there. Consider power dynamics, for example. Managers are in a position of power that grants them additional permission to prioritize their well-being. This was evident in the findings too — 83% of managers felt comfortable asking for a day off to support their own well-being compared to just 68% of employees. If employees didn’t feel adequately empowered, supported and even expected to prioritize their well-being before the pandemic, they’re only going to continue to fall behind during the pandemic.

Why does this discrepancy exist in the first place?
Organizations haven’t always recognized their role in employee well-being. Unfortunately, companies are only now facing the reality that factors such as power dynamics and organizational norms can have significant impacts on employees. Now, in the face of a pandemic, organizations are scrambling to find the answer. But we can’t expect it to just happen — we need to really consider the employee perspective. Our study revealed that 70.8% of managers feel that since the outbreak of COVID-19, their one-on-ones with their direct reports have focused more on discussing their well-being at work. Only 33.6% of employees actually feel like that is the case.

This disconnect highlights that managers may not be equipped with the resources to lead these conversations, or perhaps there is a gap in trust present in these relationships for genuine conversations about well-being to occur. This isn’t to say that managers do not care. We found that 84% of managers said they feel at least “somewhat” responsible for whether their direct reports experience burnout or not. Instead, it highlights that organizations are missing the mark in enabling both managers and employees to feel supported, cared for and safe to communicate honestly and openly about their experiences.

What can employers do to make all employees feel supported and cared for?
When employers invest in giving managers support, this pays out in dividends, as managers are then enabled to support their employees. Managers can think creatively about demonstrating care to their employees. This can include sending them a gift or a pick-me-up, asking intentional questions about how they or their families are doing, scheduling time for team connection and bonding where work is not an agenda item. Managers can declare a team well-being day, or celebrate the work that is being accomplished despite the tough times we are in. These seemingly small moments of care make an incredible impact on people.

It is very important that people feel as though they can speak openly about their work experience with HR and their managers. Managers, leaders and even peers need to establish trust within organizations and ensure that open communication is welcomed and not tied to any negative consequences. Then, and only then, will employees feel the safety and support they need.

Authentic care is the most impactful resource an employer can offer. Only when these efforts are genuine, will organizations see the direct benefits these offerings and open conversations have in supporting employee well-being. As a manager, don’t just say you want your team to prioritize their well-being — hold them to it just as you would their performance. This communicates that you take it seriously and want to support in a serious way.

SOURCE: Schiavo, A. (28 December 2020) "Managers and employees have different attitudes about their COVID workplace" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/managers-and-employees-have-different-attitudes-about-their-covid-workplace