18 pages. Topics addressed include:

• Application of Section 430(c)(8) of the Code and Section 9706 of the ARP
  • Effect of Section 9706 of the ARP on interest adjustments with respect to certain contributions made pursuant to Section 3608(a) of the CARES Act
  • Applying the ARP segment rates to statutory hybrid plan interest credits
• Manner and Timing of Making Elections under the ARP
• Rules for Elections under Section 430(f) of the Code as a Result of the ARP and Flexibility to Redesignate Contributions Between Plan Years
  • Election to add to a prefunding balance
  • Revocation of an election to use a prefunding balance or funding standard carryover balance
  • Revocation of an election to reduce a prefunding balance or funding standard carryover balance
  • Redesignation of plan year for contributions
• Changes in AFTAP under Section 436 of the Code as a Result of the ARP
  • Prospective application of change in benefit restrictions reflecting amendments made by the ARP
  • Retroactive application of change in benefit restrictions reflecting changes under the ARP
  • Rules with respect to elections under Section 3608(b) of the CARES Act
  • Recharacterization of contributions made to avoid benefit limitations pursuant to Section 436 of the Code
  • Corrections
• Reporting Requirements for Changes for the 2019 Plan Year
• Reporting Requirements for Changes for the 2020 Plan Year

"The average Part D premium is projected to increase by nearly 5% from $31.47 to $33 in 2022.... The announcement comes amid several potential major changes to Medicare being debated in Congress."

"Participant directed plans ... generally must furnish lifetime income disclosures by the benefit statement for the second quarter of 2022 ... For plans that do not allow for participant-directed investment, lifetime income disclosures must be included in the benefit statement for the first plan year ending on or after September 19, 2021, which ... for calendar year plans ... must be furnished no later than October 15, 2022."

"The DOL acknowledges that 'many retirement plans have been providing various types of illustrations for several years.' The DOL notes that the ages in the interim final rule must be used for lifetime income disclosures, but that plan administrators may provide participants with additional lifetime income illustrations[.]"

"If you are a plan sponsor or you are working with a plan sponsor that has a qualification failure that does not neatly fit within the safe harbor guidelines of EPCRS and you are not sure that you want to reveal your identity to the IRS in a VCP application, you should act fast and file an anonymous VCP application as soon as possible. The last day to file such an application is December 31st[.]"

"[T]he Fifth Circuit observed that although the plan eventually began offering a stable value fund -- the plaintiffs' preferred type of capital preservation investment -- the participants never invested in this option. For that reason, the appellate court concluded that the participants failed to show that the challenged acts of the defendants caused their injury[.]" [Ortiz v. American Airlines, Inc., No. 20-10817 (5th Cir. Jul. 19, 2021)]

"The CAA requires that health plan participants receive an advance explanation of benefits (EOB) whenever they schedule a health care service at least three business days in advance. Participants are also able to request an advance EOB for a health care service whether or not the service has been scheduled."

17 pages; Jul. 30, 2021. "CMS issued this toolkit to help health insurance issuers and Medicare Advantage plans identify the issues that need to be considered and addressed in order to provide coverage and reimbursement for vaccine administration. Because COVID-19 vaccines will be federally purchased, this toolkit primarily focuses on vaccine administration.... This toolkit:

• Provides a list of operational considerations for issuers and Medicare Advantage plans as they design their approach to promoting COVID-19 vaccinations, and information on how issuers and Medicare Advantage plans can communicate with providers and enrollees on vaccinations and coverage;
• Outlines legislative and regulatory provisions applicable to issuers that ensure that enrollees can receive a COVID-19 vaccine in a convenient setting, with no out-of-pocket costs;
• Encourages issuers and Medicare Advantage plans to implement streamlined processes to quickly administer COVID-19 vaccine coverage; and
• Describes how issuers and Medicare Advantage plans can maximize the number of their enrollees who get vaccinated once a COVID-19 vaccine becomes available."

"The court noted the limited precedent in this area but that the Fifth Circuit and several district courts have held that ERISA does not preempt corporation-law claims against dual-hat directors and officers." [Halperin v. Richards, No. 20-2793 (7th Cir. Jul. 28, 2021)]

"[According to Tim Hauser, Deputy Assistant Secretary for National Office Operations at EBSA, the] most detailed proscriptive best practices in the recent DOL guidance were aimed at recordkeepers and 'those running the systems' -- and the DOL has higher expectations on cybersecurity practices among those organizations. Costs/risk exposure are a relevant consideration -- the [DOL] would expect quite a bit more of those who have more data, and more exposure."

"When an arbitration provision is found in an ERISA plan document itself, courts have applied state-law principles when evaluating whether the plan document contains a binding agreement to arbitrate between and among the plaintiff, the plan itself and the defendants named in the lawsuit. Yet these courts have either ignored, or not adequately addressed, the fact that ERISA itself contains rules for contract formation. The ERISA rules for contract formation -- and not state-law principles -- might govern whether an agreement to arbitrate exists in an ERISA plan document."

"[E]ffective immediately and through January 17, 2022, eligible employees may take covered leave for absences connected to: [1] an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer's place of business or the employee's home address; and [2] a determination by a public official with the authority to do so that the air quality index or heat index is at a level where continued exposure to such levels would jeopardize the employee's health."

"Even the most thorough and detailed IPS will be of limited utility unless the plan fiduciaries who are adopting the IPS can understand the document.... For that reason, an IPS should: [1] provide meaningful guidelines that committee members can apply in fulfilling their duties; and [2] be written a way that an intelligent and engaged committee member can understand and implement."

"The combination of a new administration and Congress in Washington, together with the COVID pandemic, shutdown, recession and recovery has focused industry minds and accelerated trends in policy, practice and technology. The defined contribution (DC) savings industry demonstrated notable resilience amid this market volatility and accelerated its consideration of many best practices that bode well for the future."

"A close look at selecting and evaluating qualified default investment alternatives (QDIA) forces some questions about the value an adviser can add to the process.... [Although] advisers may be good at helping to craft custom funds, this might not always be appropriate.... [T]here are so many different low-cost, off-the-shelf solutions that most plan sponsors can typically find one that meets their needs[.]"

"Although the guidance acknowledges that long COVID is not always a disability, it indicates that an individualized assessment is necessary to determine whether a person's condition or symptoms substantially limit a major life activity. The guidance also provides examples of when long COVID could meet that definition under applicable law."

"Several insurers and advocacy groups commented on the proposals outlined in the Centers for Medicare & Medicaid Services' Notice of Benefit and Payment Parameters, which outlines ACA marketplace exchange regulations for the 2022 coverage year. Insurers worried that extending the open enrollment period could lead to adverse selection and raise premiums for consumers."

"This Article discusses trends in executive compensation-related litigation relating to: [1] Failures to adequately disclose perquisites paid to named executive officers (NEOs) as required by Item 402 of Regulation S-K ... [2] Compensation paid to a controlling shareholder relating to the individual's role as an executive or board member ... [3] Executive misconduct ... This Article also recommends actions for companies to consider in light of the recent executive compensation-related litigation."

"Nearly 70% of HR professionals surveyed felt a contemporary ben admin system can help employees better understand their benefit options.... 66% of HR professionals surveyed reported that a contemporary ben admin system improved the relationship between HR and the rest of the organization.... 63% of HR professionals feel a contemporary ben admin system can help employees feel better connected to their healthcare experience."

"The IRS today updated frequently asked questions (FAQs) on the paid sick and family leave tax credits under [ARPA]. The updates clarify that eligible employers can claim the credits for providing leave to employees to accompany a family or household member or certain other individuals to obtain immunization relating to COVID-19 or to care for a family or household member or certain other individuals recovering from the immunization.

"The paid sick and family leave credits reimburse eligible employers for the cost of providing paid sick and family leave for reasons related to COVID-19. The revised FAQs make clear this includes leave taken by employees to care for certain individuals to obtain immunization relating to COVID-19 or to recover from immunization relating to COVID-19. This new reason for paid sick or family leave also applies for the comparable credits for self-employed individuals."

BenefitsLink note: the following Revised sections of the FAQs have been updated as of July 29, 2021:

• General Information
• What is an Eligible Employer?
• Determining the Amount of the Tax Credit for Qualified Sick Leave Wages
• Determining the Amount of the Tax Credit for Qualified Family Leave Wages
• Determining the Amount of Allocable Collectively Bargained Contributions
• Specific Provisions Related to Self-Employed Individuals

"The Mega Backdoor Roth comes into play in one of two ways. The individual either takes an in-service withdrawal and rolls it to a Roth IRA or utilizes an in-plan Roth rollover feature to convert to Roth within the plan. This may sound like a complicated cool investment strategy, but it RARELY works."

"What is the value of an adviser to record keepers? The overwhelming answer is that advisers sell the plan. They represent a sales force of almost 300,000 with personal relationships with plan sponsors. Providers do not have to recruit, manage or pay these advisers directly. Everything else is ancillary."

Video of July 28 hearing, with links to witness testimony: [1] Aliya Robinson, The ERISA Industry Committee; [2] Brian H. Graff, American Retirement Association; [3] David Certner, AARP; and [4] The Honorable Tobias Read, Oregon State Treasurer.

"The requirement to aggregate returns when calculating electronic filing thresholds, combined with the lower thresholds themselves, will likely eliminate paper filings for all but the smallest employers. The regulations' impact would be especially acute for smaller applicable large employers (ALEs), who have been able to file Forms 1094-C and 1095-C on paper when reporting information for employer shared responsibility. Since ALEs by definition have at least 50 full-time-equivalent employees, they are likely to pass the 100-return threshold when taking into account Forms W-2 and 1095-C."

"Health plans with policy years beginning on or after June 30, 2020, must cover PrEP as preventive care under the ACA.... The Final Recommendation gives information about whom the USPSTF determined to be at high risk for HIV acquisition.... The Departments' FAQs explain that plans must provide coverage without cost-sharing for PrEP drugs and items and services included as part of determining whether PrEP is appropriate for the individual and ongoing follow-up and monitoring."