By: Jon Jablon, Esq.
Business is complicated, and a recent consulting inquiry from a client recently reminded me just how complicated it can be, especially when health plans are involved. In the course of a given health plan’s lifespan, there is the potential for numerous different things to happen, and one such possibility is called a “spinoff”, which is the term used when one benefit plan is split into more than one benefit plan.
When a health plan “spins off” into two health plans, neither plan is considered an “original” or “existing” plan, but each plan effectively becomes a brand new plan. Effecting a spinoff can be beneficial if an employer wants to treat classes of employees differently, which often becomes relevant as the employer expands its business, enters new sectors or new industries, widens its employee base, or otherwise changes its needs or mindset. If one section of a company grows much faster than another, for instance, it could be a good idea to separate the two into different companies, and different corporate structures could be used for different purposes and to achieve different results. A health plan being “spun off” into two (or more) plans can help insulate the assets of one plan from the other, which can be useful for stop-loss purposes (for instance to have different plans underwritten differently) or for funding purposes.
Since health plans have assets, in the form of money paid in by employees and the plan sponsor and paid out in benefits, there must be a way to allocate those plan assets accordingly. It may be intuitive to think “well, if individuals paid into Plan A while they were members of Plan A, then that money belongs to Plan A, and the new Plan B will start fresh”, that is not the approach the regulators have taken. If some employees moved from Plan A to the brand new Plan B but assets did not get transferred from the old plan to the new plan, then the new plan would have no assets, and could not pay claims!
To account for this, the applicable regulations tend to require the plans to allocate Plan A’s assets to Plan B based proportionately upon the plan assets attributable to their membership. If you think that sounds complicated, don’t forget that Plan A’s pool of assets is far from static; Plan A constantly gains and spends money, and attributing every dollar to an individual can be extremely complex (and it can even change day-to-day). In classic DOL and IRS fashion, plans are given the instruction to make “reasonable actuarial assumptions” to calculate these things – which does not really help explain much at all. It’s the same as when the regulators tell health plans to use a “good faith, reasonable interpretation” of the guidance they publish; in a way, it allows plans to have a safety net as long as they exercised good faith, but I for one would much rather have some actual guidance. Maybe even a calculator with specific fields, like for Minimum Value calculations!
Employers sometimes view health plans as a handicap to achieving more efficient corporate structures, or they worry that their health plans will suffer as a result of certain factors that are apparently beyond their control. This “spinoff” is one example of a tool that is within an employer’s control; in fact, employers are given a very wide latitude to structure their health plan (or plans) as they see fit, and with a little creativity and a lot of math, that latitude can be used to an employer’s advantage.
By: Nick Bonds, Esq.
Does anyone else have fond memories of the choose your own adventure genre? “To explore the lab, turn to page 34!” Remember those? My favorite were the Goosebumps stories. I distinctly remember a story where I survived, but was transfigured into a German Shepherd. Thinking back, I probably wouldn’t have minded. I made a point of going through the first read without knowing any of the possible outcomes. After that though, I would inevitably flip back and forth through the book to see every possible outcome from every possible decision tree. In that spirit, let’s take a look at the possible outcomes President Biden’s healthcare agenda will face, come January 20.
The big turning point for his potential endings will be this Tuesday, with the runoff election for two Senate seats in the Georgia. Control of the Senate hinges on whether those seats remain in Republican control, and control of the Senate will largely dictate the possible avenues that remain open to the Biden Administration. During his campaign, the president-elect espoused a vision of building on the Affordable Care Act. He took care to steer clear of going so far as to embrace Medicare for all, and by comparison his approach looks far less radical. Rather than creating a single payer system, among other things, Bidencare would add a public option that could theoretically bring coverage to millions more Americans and perhaps lower premiums for those who already have coverage. If passed, the big shake ups would come from large insurers having to compete with a large, Medicare-like payer. That’s a big “if” though – without a Democratically controlled Senate there’s almost no chance the Biden plan would make it past the Grim Reaper of Capitol Hill.
So if Democrats don’t win both of the Peach State’s Senate seats this week Bidencare may be dead on arrival. Even with both seats the Senate would still be split 50-50. In which case Kamala Harris might find herself one of the busiest vice presidents in recent memory, taking charge in the Senate chamber as the perennial tiebreaker – a muscle Joe Biden never had the opportunity to flex during his time as Veep.
But the story won’t simply end there. We simply turn in our books to the executive authority ending. The Biden administration would still have the authority to make a number of changes without the help of Congress. Given the state of the pandemic (the U.K. is locking down again as we speak), President Biden could invoke emergency powers to provide greater subsidies, extended open enrollment periods, and reinstate marketing and outreach funds for purchasing plans on the Exchange. The President would also likely renew the declarations of COVID-19 as both a national emergency and a public health emergency, granting his fledgling administration with greater flexibility under federal regulations.
We would also likely see the United States walk back its withdrawal from the World Health Organization, reinstate COVID-19 briefings with scientists and health experts front and center, and push for a more comprehensive program to test, track, and vaccinate the public against the virus. Through executive actions, President Biden would also be able to simply reverse a number of actions taken by President Trump. He could reinstate limitations on short-term plans, lift limits on reproductive health programs, or revise regulations allowing more employers to refuse to cover contraceptives. He may also re-tighten limitations on when association health plans may be considered single-employer plans, and would likely revise the recent Section 1557 regulations.
What I know for certain is that we can expect the Biden administration to unveil big developments in the healthcare narrative over the coming months. As for which page we flip to next? That’s up for Georgia to decide.
There’s no question that most health plans can’t remain viable without a stop-loss policy in place. The plan and stop-loss carrier share a common goal, which of course is cost-containment. Since the two types of coverage provided are so different, however, the brand of cost-containment that each uses is often vastly different – and when two companies are trying to contain costs on the same claims, things can get ugly if they say different things.
Many stop-loss carriers have antiquated notions of what should constitute U&C. Common definitions include the old “usual charge in the area” language or some variation thereof, but many carriers have taken their policies into the modern age and use multiples of Medicare for their allowable amounts. In theory, this makes sense; just like a plan needs to determine what amounts are reasonable for it to pay for claims, so does a stop-loss carrier. However, plans should consider that their carrier’s idea of what is reasonable may not align with their own.
Admittedly, this is not the first time we have brought up this topic of so-called “gaps” in U&C language between a plan and a stop-loss carrier. That’s because this issue continues to be relevant, and what’s worse, payors are often surprised by stop-loss denials when they didn’t think they had any reason to worry.
The best example is when the plan is subject to a PPO contract, which most still are. The plan is contractually bound to pay the network rate, and cannot limit its payment based on a percent of Medicare or other factors; instead, it must pay providers the established contractual network rate. The stop-loss policy, however, doesn’t reference the PPO rate, instead saying that it will pay the lesser of (a) 200% of Medicare or (b) the usual charge in the area. Again – no mention of the PPO rate.
As is generally the case, and as is the impetus for the reference-based pricing boom, PPO discounts or DRG rates are far higher than what is considered reasonable by most payors, and are almost always higher than 200% of Medicare. The fact remains, however, that a plan subject to an applicable PPO agreement may be bound to pay those network rates, however unreasonable they may be considered. The carrier is not subject to the PPO agreement, however, and is free to disregard its terms – hence capping its own allowable based on Medicare or other factors.
So, what happens? The plan pays the network rate – billed charges less a meager percentage, usually – and the carrier adjudicates the claim without regard to the terms of the network contract, and allows its claim at 200% of Medicare. That leaves a hefty gap between what the carrier will reimburse and what the plan has paid – and in some instances the carrier’s opinion of the plan’s allowable amount may not even rise to the level of the specific deductible, rendering the claim denied in full since it hasn’t met the attachment point.
If this has never happened to you, good – but The Phia Group is in a prime position to have seen these issues pop up over and over again. In fact, one group even sued The Phia Group because the group’s stop-loss carrier denied a claim for this exact reason! It could be funny if it weren’t so sad.
Moral of the story? As we so often implore… read your contracts. Make sure you understand what your carrier is going to pay, and not pay, and how that aligns with the allowances in the SPD. It might surprise you what you find.
Feel free to contact us at PGCReferral@phiagroup.com if you’d like some assistance.
By: Jon Jablon, Esq.
The concept of “discretionary authority” within a plan document can be somewhat esoteric. After all, Plan Administrators have to make decisions sometimes; even if the SPD doesn’t explicitly provide the Plan Administrator with the discretionary authority to interpret the provisions of the SPD (which it always should), practically speaking, the Plan Administrator could not possibly administer the plan without exercising some degree of discretion.
Let’s break down what discretionary authority really is, and what it really isn’t. The easiest way is to give a real-life example of something that our consulting department has worked on extensively; here are the facts: a VIP of the plan was driving while intoxicated after an evening work function. The police report would later provide that despite being intoxicated (as tested at the scene), the driver was obeying all traffic rules and did not cause the accident; instead, the accident was caused when a pickup truck slid on some ice, through a stop sign, and t-boned the intoxicated driver’s car. Again – not the intoxicated driver’s fault. But, the SPD language provides that the plan will not pay any expenses for injuries sustained while a plan member is driving while intoxicated. Not caused by the intoxication – but simply while the driver is intoxicated. This is not uncommon, and of course is designed to disincentivize employees from driving while intoxicated.
Eventually, it came time for the Plan Administrator to review the claims and the circumstances under which they arose. The Plan Administrator cited the Plan’s standard discretionary authority language – giving the Plan Administrator the discretion to interpret the terms of the plan and decide questions of fact – and ultimately determined that the member’s intoxicated driving, while not ideal, did not cause the accident, and the Plan subsequently paid the claims. The issue arose when stop-loss denied the claim down the line; the carrier’s denial noted not that the claim was not payable due to a strict interpretation of the SPD (which should have been the reason), but instead the carrier gave the denial reasoning that the Plan Administrator did not have the discretion to make this determination. That incensed the Plan Administrator, since the Plan Administrator felt that the discretionary authority language in the SPD was proof that it did, in fact, have this discretion. (After all, what is that language for, if not to give discretion to the Plan Administrator?!)
Despite the carrier’s odd choice of wording, the carrier is technically correct. A Plan Administrator’s discretion is not absolute; it extends to applying the terms of the SPD or making factual determinations. In this case, the SPD was clear, and the Plan Administrator incorrectly used its discretion to override the terms of the SPD, which is not the purpose of that language. By that logic, the Plan Administrator would have the authority to arbitrarily pay or deny any claims, which is certainly not the intent of ERISA. And what about stop-loss?! Just imagine how a plan could ever be underwritten if that were the case. The fact is, the Plan Administrator’s discretion may be broad, but it does not allow the Plan Administrator to choose to cover something that is explicitly excluded.
Instead, the function of the discretionary authority language is for the Plan Administrator to be able to interpret provisions that may be ambiguous or unclear in any way. It’s effectively an extension of plan language, rather than a vehicle for changing plan language; ideally, the SPD language will be drafted as clearly as possible, but it’s just not realistic to expect the language to perfectly account for every conceivable situation. A good way to conceptualize discretionary authority is like a court making decisions about what it felt the drafters of the Constitution actually meant. The courts can’t change the Constitution, but they can decide what they think it means. Same goes for the Plan Administrator.
If you need help interpreting plan language, or if you need help understanding the extent of a Plan Administrator’s discretion, or anything else, please don’t hesitate to get in touch with The Phia Group’s consulting department, at PGCReferral@phiagroup.com.
By Philip Qualo, J.D.
In general, employers should review and revise their employee handbooks at least annually to account for changes in local, state, and federal laws and workplace safety requirements. As employers begin to focus on reviewing their employee handbooks in preparation for a… hopefully better… 2021, many are pondering how to update their handbooks to adequately respond to the challenges presented by the COVID-19 pandemic and continuing racial tensions sparked by the murder of George Floyd. Although employers have generally been quick to adopt and enforce policies addressing COVID-19-and diversity related issues, the rapidly changing guidance and dramatic shift in cultural perspectives has also necessitated swift revisions as best practices and requirements continue to change from day to day. In finalizing our own employee handbook for the upcoming year, we can share two important tips employers may want consider in reviewing and updating their employee handbooks in these challenging times.
Tip #1: Limit the Handbook to Static COVID-19 Language Where Possible
As updating an employee handbook multiple times within a fiscal year can be an administratively burdensome task, a best practice is to ensure all policies included or updated in the handbook are relevant, or static, for the duration of the applicable fiscal year. This has been simple in most years, however, in response to the COVID-19 pandemic, the federal government passed a series of comprehensive laws with rapidly approaching expiration dates aimed at protecting American workers by regulating group health plans and providing for new leave paid entitlements, such as the Families First Coronavirus Response Act (FFCRA). In addition to FFCRA, state and local guidance and laws continue to be updated at an unpredictable frequency that often necessitates a quick and temporary change to employment policies changes in order to comply work safety work requirements.
In order to avoid the challenge of updating and re-releasing multiple times throughout these unprecedented times, it may be helpful to limit specific references to COVID-19. We chose to use terms such as “Public Health Emergency” or “Pandemic” where possible. If COVID-19 has taught us anything, it is that life is unpredictable. Now that we have collectively experienced and continue to endure this pandemic, including language in an employee handbook referencing an employer’s responsibility to contain a public health emergency or pandemic could apply to other critical situations that pose a threat to future safety.
For policies with an approaching expiration date, or that are likely to change frequently based on changing guidance, it may be helpful to generally refer to them in the employee handbook and detail them in a referenced platform or notice that can be updated with ease. For example, we use an intranet platform to house our most up to date COVID-19 policies which allows for quick enhancements and immediate notification to employees. Although any platform accessible to all employees would be appropriate, an employer should take the additional step of distributing, announcing, or where applicable, requiring sign-off for each and every change to document compliance with notification requirements.
Tip #2: Closely Review and Update Anti-Harassment, Nondiscrimination and Sexual Harassment Policies
In the “Black Lives Matter” and “MeToo” era, organizations are taking the extra step of ensuring all policies and employment practices reflect their organizations commitment to diversity inclusion. As such, we encourage employers pay special attention to their anti-harassment, non-discrimination, and sexual harassment policies to ensure proper reporting, investigation, and anti-retaliation protocols are documented and in place. These policies send a message to employees about expected behavior. In the event of a claim against the organization, they also help to demonstrate that the organization takes its obligations seriously. Social media policies are similarly becoming a focus of concern for many employers in this day and age, when a single unwise employee post or public statement can subject the organization to a litany of negative publicity to their places. As demonstrated by the increasingly popular wave of “Karen” videos that have gone viral in recent months, employers may want to consider establishing or updating their policies to clearly reflect the handling of employees involved in large scale publicity due to inflammatory behavior or comments that could shed a negative light on the employer.
We hope these tips are helpful and provide some insight on how to enhance your employee handbook in challenging times.
In this episode, Ron Peck and Brady Bizarro guide you through a chaotic week for healthcare news. What did we learn (if anything) from the first presidential debate? With COVID-19 infecting the President and much of the West Wing, what can we learn from the President’s experimental treatment? Would self-funded plans cover this treatment? What impact could all of this have on the Affordable Care Act lawsuit? Join us to find out!
Click here to check out the podcast! (Make sure you subscribe to our YouTube and iTunes Channels!)
We hear a lot of chatter in the self-funded industry about “plan mirroring.” The idea is that a stop-loss carrier will adopt the same language as what is in the SPD, in effect “mirroring” the language, and that gets rid of what we at Phia like to call “hard gaps,” where the plan and carrier are working off different language, leading to situations where the plan must pay claims but the carrier may deny them. The point of mirroring the SPD’s language is so the plan never needs to worry about those kinds of gaps.
But there are other kinds of gaps, too. Gaps tend to arise when different entities are interpreting the same language, as well (we call those “soft gaps”) – and it is crucial to keep in mind that a policy that mirrors the plan’s terms is not the same as the carrier adopting the plan’s interpretation of those terms.
Let’s talk about an example. We have mentioned this particular situation numerous times; it’s not because we’re too lazy to think of new examples, but because it keeps on happening! The SPD excludes any benefits paid for services performed by a family member. A plan member has a great uncle who is a surgeon, and elects to have him perform the surgery partially because of the great price he has offered, and partially because he knows and trusts him. As far as the plan member is concerned, this is a win-win. The claim is sent to the health plan, and the Plan Administrator uses its discretion to determine that “family member” does not include someone as attenuated as a great uncle (since the Plan Administrator interprets that term “family member” to refer to the immediate family), so the plan pays the claim, and expects that the carrier will agree, since the policy “mirrors” the plan.
Well, you can guess what happens next.
The claim goes to the stop-loss carrier, and the carrier denies the claim because its interpretation of “family member” is broader than the Plan Administrator’s interpretation, indeed including great uncle within the class of “family members.” The carrier denies the claim. The plan is both confused and angry, and thus begins a protracted fight between the plan/TPA/broker and the stop-loss carrier, caused by the carrier’s overly-salesy and idealistic explanation to the plan, TPA, and broker what mirroring actually entails.
In short, plan mirroring entails using the same language, but it does not necessarily entail thinking the same things. The carrier adopted the same exclusion that the plan uses, but the carrier cannot control how the plan interprets that exclusion, nor can the plan be underwritten based on what interpretations of the plan language the Plan Administrator could conceivably make in the future. The carrier, after all, is not a psychic – and because of that, it is the carrier’s responsibility to make absolutely sure the health plan understands what “mirroring” really entails, and what it doesn’t entail. The concept of plan mirroring in a stop-loss policy is not quite as straightforward and magical as it seems. It is certainly useful to minimize the gaps in the language used, but it’s not a panacea.
This applies just as clearly, if not more so, in the level-funded arena, where level-funded plans expect to have their expenses capped based on a guarantee that the carrier will cover all their claims above the aggregate deductible. When there is a difference in interpretation that leads to a denial, the plan is left holding the bill, and often has no idea why – especially when level-funded plans are marketed essentially as programs that mimic fully-insured policies. The important difference is that in a fully-insured policy, the plan sponsor pays its monthly premium and there is no possibility of being on the hook for claims – whereas in a level-funded program, the plan sponsor can lose its expected reimbursement if the stop-loss carrier doesn’t agree with the Plan Administrator’s discretionary decision.
Plan mirroring provisions are sometimes marketed to make a stop-loss policy airtight for the plan, but don’t be fooled by the hype: there is always still the potential for a gap somewhere along the way. Make sure you read and understand your contracts and policies before you sign, and if possible, have them reviewed by an expert!
Nick Bonds, Esq.
As the Supreme Court of the United States wraps up its first full term with Associate Justice Brett M. Kavanaugh rounding out the Roberts Court’s conservative majority comes to a close, we have a number of high-profile opinions to dissect.
In addition to the customary tumult baked into an election year, this SCOTUS session deliberated while the coronavirus pandemic raged and the resurgent wave of Black Lives Matter protests swept the nation and the world. Amidst this background, the Court delivered opinions on issues as wide-ranging and politically charged as presidential powers, Native American sovereignty and land rights, faithless elector laws and the Electoral College, and Dreamers and immigration law. Of particular interest to employers and sponsors of health plans, were decisions regarding abortion rights, contraception coverage, and protections for gay and transgender employees. These latter cases will claim our spotlight for now.
In June Medical Services v. Russo, the Court struck down a Louisiana abortion law that was virtually identical to the Texas law it previously struck down in the 2016 case Whole Woman’s Health v. Hellerstedt by a margin of 5-3. The Louisiana law, like the Texas law before it, required doctors performing abortions to have admitting privileges at nearby hospitals, but had the effect of shuttering nearly every abortion provider in the state. In the 2016 case, a majority of the Court held that the law placed an undue burden on access to abortion. Chief Justice John Roberts dissented in the 2016 decision, and supporters of the Louisiana law hoped that the new lineup on the Supreme Court’s bench would deliver them a victory this term. Chief Justice Roberts disappointed them, however, relying on the legal principal of stare decisis and falling back on the precedent established by the 2016 case to rule against the nearly identical Louisiana law in a 5-4 decision.
The Court’s big case on contraception coverage was the culmination of a seven-year legal battle known as Little Sisters of the Poor v. Pennsylvania. In a 7-2 (arguably a 5-2-2) decision, the Supreme Court upheld a regulation from the Trump administration that essentially exempted employers who cite religious or moral objections from the Affordable Care Act’s contraceptive coverage mandate. Writing for the majority, consisting of the Court’s conservative bloc, Justice Clarence Thomas held that the Trump administration was acting within its authority to provide exemptions for employers with “religious and conscientious objections.” Justices Elena Kagan and Stephen Breyer agreed with their conservative colleagues that the Trump administration had the authority to create these exemptions, but they reasoned that lower courts should examine whether the decision was “arbitrary and capricious” and invalid under the Administrative Procedure Act. Justice Ruth Bader Ginsburg, joined by Justice Sonya Sotamayor, wrote a fiery dissent, arguing that the Court failed to balance religious freedom with women’s health. As a result of the Court’s ruling, employers objecting to the coverage of contraceptives on religious or conscientious grounds may decline to cover contraceptives for their employees, and the Obama-era accommodation process that would still allow employees to access contraceptives without cost-sharing, is now optional.
Lastly, in a 6-3 decisions, the Court ruled that the Civil Rights Act of 1964 protects gay and transgender workers from discrimination in the workplace. Justice Neil Gorsuch wrote in Bostock v. Clayton County that Title VII of the Civil Rights Act prohibits employers from firing their workers for being gay, bisexual, or transgender. Justice Gorsuch took pains to make clear that the Court’s decision in Bostock was specifically targeted on Title VII and no other federal laws prohibiting discrimination “on the basis of sex,” but the Court’s rationale here will almost certainly echo into other litigations debating the application of that key phrase in other areas of law. Though the issue in Bostock was the hiring and firing of LGBTQ employees, the case has implications for employer’s health and benefit offerings and is likely to be at the heart of future litigation in this arena.
All of these rulings will be making their effects felt over the coming months, both practically and politically. We are here to help and ready to answer any questions stemming from these decisions.
By: Philip Qualo, J.D.
Just when the United States was starting to adjust to a new COVID-19 reality, where bejeweled face masks, social distancing and hand sanitizer have become as fundamental to our existence as water, current events have yet again set us down a new trajectory in these unprecedented times. The May 25th murder of George Floyd, a Black man who was unarmed and handcuffed at the time of his death at the hands of law enforcement sparked a series of national protests that has called on the world to reexamine policies and practices that disproportionately impact people of color. The protests have spawned into a national movement in the U.S. that has aimed at reforms in law enforcement practices and legislative accountability. There is a very important arena, however, where racial disparities are not being discussed at this time, and that is in healthcare. Disparate access to affordable, yet effective, healthcare has and continues to have disproportionately negative impact on people of color. In most cases, access to healthcare can be the difference between life and death.
Despite the passage of the Affordable Care Act in 2010, racial disparities in healthcare continue to be a troubling phenomenon in the U.S. Black men and women face 40 percent and 57 percent higher hypertension rates than White men and women, respectively. The death rate from breast cancer for Black women is 50 percent higher than for White women. On average, 25 percent of Latinx children aged 6–11 years are considered obese, compared to 11 percent of White children. Asthma prevalence is also highest among Black and Native American communities, and Black children have a 260 percent higher emergency department visit rate and a 500 percent higher death rate from asthma compared to White children. Native American, Latinx, and Black communities have the highest percentages of adults with diabetes.
Even more troubling, the infant and maternal mortality rates for Black babies and mothers are far higher than those of White babies and mothers. In the U.S., based on 2016 data, White babies die before their first birthday at a rate of 4.9 per 1,000, and White women die from pregnancy and childbirth-related causes at a rate of 13 per 100,000. While those numbers are far higher than other wealthy countries, the picture is far worse for Black babies and mothers. Black babies die before their first birthday at a rate of 11.4 per 1,000, and Black moms die from childbirth-related causes at a rate at a rate of 42.8 per 100,000 – more than double and triple the rates of White babies and moms, respectively.
There is no one solution that can fix this problem. Recognizing that these disparities exist, is something we all must do before we can contemplate how to remedy this systemic issue. In reviewing these troubling statistics, the only solace I find is an overwhelming feeling of being blessed to work for The Phia Group. At Phia, ensuring every American is insured is not enough; we are firm in our belief that we need to reduce the cost of care at a national level. Racial disparities in healthcare will continue to grow with escalating costs, as low income minorities struggle to maintain equal access to affordable coverage and basic healthcare that would likely identify many of the above listed health issues before they grow into lifelong, chronic, and costly conditions. As workforces are growing more and more diverse by the day, this is certain to be a reality to many employers that offer health coverage to their employees. Therefore, improving racial inequality is not only a matter of civil rights, but a matter that must be taken seriously by the healthcare industry in our collective efforts to keep costs low, and access to coverage affordable for all.
By: Philip Qualo, J.D.
The Nation’s response to the COVID-19 pandemic called on employers to exercise greater flexibility and understanding for employees impacted by COVID-19. For the most part, the series of legislations enacted since the pandemic hit the U.S. have been aimed at expanding unemployment, group health plan coverage, leaves of absence, and providing financial support to struggling employers and Americans faced with an economy that evaporated overnight. However, plan sponsors offering benefits on a pre-tax basis through Internal Revenue Services (IRS) Section 125 cafeteria plans struggled to correlate the nationwide call to provide flexible options employees with the strict terms of their cafeteria plans.
Section 125 cafeteria plans are required to maintain employee pre-tax elections for benefits offered through the plan for the full plan year, with very few exceptions. The type of benefits offered through a cafeteria plan generally include employer-sponsored health coverage, Health Flexible Spending Arrangements (Health FSAs) and Dependent Care Assistance Programs (DCAPs). The IRS also imposes strict limitations on when midyear changes to those elections may be made. As employers have been forced to deal with mandatory shutdowns, furloughs, and newly enacted leave requirements, most plan sponsors found themselves with little guidance on how to handle requested changes to elections made before COVID-19 became a household name.
After much anticipation, the IRS finally released much needed guidance on May 12, 2020. In IRS Notice 2020-29, the IRS provides for increased flexibility with respect to midyear elections under a Section 125 cafeteria plan during calendar year 2020 due to COVID-19. The Notice applies to cafeteria plans that offer employer-sponsored health coverage, FSAs and DCAPs. The Notice permits an employer to amend its cafeteria plans to allow employees to:
Notice 2020-29 does not require cafeteria plans adopt these midyear elections. An employer that decides to amend their cafeteria plan to allow for any of the above midyear election changes must adopt a plan amendment. It should be noted that any amendment to a cafeteria plan made under pursuant to the Notice is only valid through December 31, 2020.
It is important to note that an employer is not required to provide unlimited election changes but may, in its discretion, determine the extent to which such election changes are permitted and applied, provided that any permitted election changes are applied on a prospective basis only, and the changes to the plan's election requirements do not result in failure to comply with the nondiscrimination rules applicable to Section 125 cafeteria plans.
In determining the extent to which midyear election changes are permitted and applied, an employer may wish to consider the potential for adverse selection of health coverage by employees. To prevent adverse selection of health coverage, an employer may wish to limit elections to circumstances in which an employee's coverage will be increased or improved as a result of the election.