Chaz

My off-the-top-of-my-head thought is that it would be taking an aggressive position that no participants are "affected" by failing to remove a lifetime limit provision (the limit would seemingly "apply" to all participants, whether they went over the limit or not). How aggressive would depend on the particular circumstances. I suggest speaking with counsel.

Anyone have any thoughts?

An employer contracts with an insurer to provide a Medicare Advantage plan to its retirees (including retirees who have come back to work part-time and therefore are ineligible for the employers regular group health plan). Is the Medicare Advantage plan in these circumstances an "individual" policy, such that the employer cannot reimburse the premiums for such plan (because, among other things, it doesn't meet the requirements of 2015-17) or is it a "group health plan" not subject to the prohibition? Thanks.

This is off the top of my head but the only restriction under federal law preventing an employer from requiring employees to take employer-based coverage that I can think of is the employer's shared responsibility obligations under the ACA. If that is not an issue, I can think of no other applicable federal law. One stumbling block may be state wage and payment laws. Jpod's suggestion of providing coverage "free" with a corresponding reduction in pay may work towards that end but that is a state-specific question for an employment lawyer. I can say that a permissible plan design is to permit employees to opt out of coverage only if they can demonstrate that they have other coverage. I see that often and generally advise my clients to so provide if for no other reason than the paternalistic preference that employees not go "bare." I would guess that employer probably can restrict employees who decline coverage and who do provide other evidence of coverage to part-time rather than full-time work but that is just a guess and is ultimately another question for an employment lawyer.

Amounts attributable to employee contributions ARE generally plan assets. Under certain circumstances there may not be a requirement to hold such amounts in trust (i.e., if employees pay them through a cafeteria plan) but they are still plan assets. It would take some research and some thought to answer the original question but I suspect that, if employee contributions are involved, it may make a difference.

I agree with Peter. The "give-back" may be problematic under the "voluntary plan" safe harbor exception to ERISA's requirements. Any questions of "what legal guidance allows this" should be directed to an attorney.

Thanks. That's a possibility if the fund sends the information directly to CMS but not to the employer.

Thanks for the response. I think the fund could definitely provide the information directly to CMS if CMS requested it (because it would be required to by law). But, here, the contributing employer is requesting that the fund provide IT with the information to provide to CMS in order for the employer to comply with law. The fund cannot ordinarily disclose PHI to a contributing employer without complying with HIPAA. This disclosure is not "required by law." The fund can possibly send the information directly to CMS at the contributing employer's request but I am not sure whether that disclosure, which would be in effect voluntary, would meet the "required by law" requirement.

A contributing employer to a multiemployer welfare fund has received a request from CMS to provide information about its employees for purposes of the CMS data match program. The employer is required by law to provide the requested information. The employer does not have the information, which resides with the multiemployer fund. Under HIPAA, does anyone have any thoughts on whether the fund can provide the information (mostly health plan enrollment information) to the contributing employer without authorization under HIPAA's privacy rules? In the non-multiemployer plan context, the employer can provide the information to CMS under the "required by law" exception (EDIT: the employer is not a covered entity so it need not rely on a HIPAA exception) and the employer, as plan sponsor, can obtain the enrollment information from its group health plan. But a contributing employer is not the plan sponsor of the multiemployer plan so this rationale does not seem applicable. Thanks!

For 2016 elections, a participant must incur the expense prior to the end of 2016 (i.e., within the plan year). If the employer has adopted the grace period, the participant has an additional 2 1/2 months (i.e.,, until March 15, 2017) in which to incur the expense and if the employer has adopted the carry over, the employee can incur up to $500 in expenses in the following year (i.e., until December 31, 2017). Once the plan year or grace period is over, the employee must submit for reimbursement the expenses within the time period set by the employer. Most employers choose somewhere from 30 to 90 days as this run-out period. For instance, if I participate in an FSA with the grace period and a 45-day run-out period and I incur an expense during the grace period (say, early March), I have until the end of April to submit the expense (e.g., fill out a claim form and submit my receipt) for reimbursement. Make sense?

Lee - I believe you are mistaking the concepts of when an expense needs to be incurred vs. when it needs to be submitted for reimbursement.

I have to disagree with the above responses. The 2 1/2 month grace period is an extension in which a participant must incur a claim, not submit it for reimbursement. There is no maximum or minimum run-out period specified in Code Section 125 or the regulations, as long as the run-out period is administered consistently. A plan can theoretically have its run-out period end on December 31, 2016, for 2015 claims but that would be unusual given the administrative burden.

This is something to discuss with counsel. The IRS rules are murky at best. In general, a separate retiree plan is not specifically exempt from nondiscrimination testing but there may be ways to structure it so it works.

Thanks. I am really looking for the actual, comprehensive HRSA guidelines for infants, children, and adolescents.

The ACA requires non-grandfathered group health plans to provide the following preventive care services without cost sharing: ■ Evidenced-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF) with respect to the individual involved; ■ Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) with respect to the individual involved; ■ With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and ■ With respect to women, evidence-informed preventive care and screening provided for in comprehensive guidelines supported by HRSA, to the extent not already included in certain recommendations of the USPSTF I am looking for the specific primary source recommendations for each of these four categories. I have found three but cannot find any discussion of the third bullet. Can anyone provide any authority on what services need to be covered under that item? Thanks in advance. zxczxczxc

Anyone have any thoughts on this?

I don't think that the instruction is saying that a terminated COBRA is not reported. The employee IS reported, but with a Codes 1H and 2A for those months in which the COBRA offer applies. Is that how an employee (for whom may payroll providers no longer have records for) who terminated in 2014 but who elected COBRA should be reported?

Can anyone provide some guidance on how (or whether) a employer sponsor of a self-insured plan reports on Form 1095-C with respect to employees who terminated employment prior to 2015 but participated in the plan by reason of COBRA for all or a part of 2015? Are they reported the same way as employees who terminated in 2015 are reported for the portion of the year in which they were on COBRA? Thanks.

Here's a mathematical example: Assume two employees from each group's gross base salary = $50,000. Premiums for self-only coverage are $1,000 per month ($12,000 per year). Employee A is in the first group and pays 50% ($6,000 per year) of the premiums through a cafeteria plan (the employer contributes the rest). Employee A's W-2 states his income is $44,000 ($50,000-$6,000). Using the W-2 method for determining affordability, employee A's percentage = 13.63% ($6,000/$44,000). Employee B is in the second group and pays 100% ($12,000 per year) of the premiums to the employer via check and then receives additional compensation of $6,000 representing 50% of the cost of coverage. Employee B's W-2 states his income is $56,000 ($50,000+$6,000). Using the W-2 method, employee B's percentage = 21.42% ($12,000/$56,000). There would in fact be a difference (using the actual numbers results in Employee A being below the 9.5% threshold and Employee B being above), unless I am missing something.

An employer has an unusual plan design. Most employees pay a portion of the cost of coverage on a pre-tax basis through a cafeteria plan. Other employees (don't ask why) instead pay the full cost of coverage (apparently by writing a check or checks to the employer) and then receive additional (taxable) compensation in their pay so that they effectively pay the same percentage of the premium for the coverage. Does the employer calculate whether the coverage is affordable for this second group of employees by using the full cost of coverage or can it include the additional compensation so that it "nets out"? Thanks for your help.

Medicaid is disqualifying coverage and the employee likely cannot contribute (or have contributions made) to an HSA.

In order to comply with the 6055 and 6056 reporting requirements, certain employers/plans must generally make reasonable efforts to obtain the social security number or TIN of participating spouses and dependents. In order to properly solicit this information, can an employer/plan send an e-mail request (in accordance with the ERISA electronic notification rules) or must it send the solicitation via snail mail (except for those who affirmatively consent to electronic delivery)? Thanks.

There is nothing in the ACA that changes the voluntary benefits safe harbor. There has always been a question as to whether an employer permitting the premiums to be paid pre-tax constitutes enough employer involvement in the arrangement to take the benefits out of the safe harbor.

Anyone have any thoughts?

An IRS Chief Counsel Advice memorandum (2014-13005) provides that a cafeteria plan can permit employees who have leftover general purpose FSA amounts to elect to roll up to $500 over into a limited purpose FSA for the next plan year and therefore be able to contribute to an HSA for that plan year. Can the opposite be done?: An employee participates in an HDHP/HSA and limited purpose FSA in 2015. The employee elects not to participate in the HDHP for 2016 and wants to rollover $500 from the limited purpose FSA into a general purpose FSA for 2016. Can a cafeteria plan so permit? Thanks.