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Agencies Issue FAQs Regarding Coverage of Over the Counter COVID-19 Diagnostic Tests

Posted on by Stacy Barrow

On December 2, 2021, President Biden announced that federal agencies would soon issue guidance regarding the availability of coverage/reimbursement from group health plans and health insurance carriers for individuals who purchase over the counter, at-home COVID-19 diagnostic tests (“OTC COVID-19 tests”).  Accordingly, on January 10, 2022, the agencies released “FAQs About Affordable Care Act Implementation Part 51, Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Implementation” which, among other things, requires group health plans and health insurance carriers to reimburse participants, beneficiaries, or enrollees (“Individuals”) for no less than eight (8) OTC COVID-19 tests per calendar month beginning on January 15, 2022 (i.e., for tests purchased on or after January 15, 2022).

Background

During the COVID-19 public health emergency, the FFCRA requires group health plans (self-funded, fully-insured, grandfathered, and non-grandfathered plans, but not excepted benefits such as dental or vision) and health insurance issuers (“Plans and Carriers”) to cover testing or certain other items or services intended to diagnose COVID-19 without cost sharing (deductibles, copays, or coinsurance), prior authorization, or other medical management requirements.  It also permits the agencies to implement the FFCRA through sub-regulatory guidance, program instruction, or otherwise.  The CARES Act expanded the FFCRA to, among other things, include a broader range of reimbursable COVID-19 diagnostic items and services that must be covered without cost-sharing, prior authorization, or medical management during the public health emergency. 

In 2020, the agencies implemented several FAQs intended to serve as statements of policy to implement the above-referenced requirements under the FFCRA and CARES Act.  Since that time, the FDA has authorized at-home OTC COVID-19 diagnostic tests that individuals can self-administer and self-read to diagnose COVID-19.  Accordingly, per the agencies, the FAQs issued on January 10, 2022 are intended to address both the FDAs approval of at-home OTC COVID-19 tests and the President’s request for additional guidance on group health plan coverage for these tests to address the ongoing COVID-19 public health emergency.

FAQ Guidance

Pursuant to the FAQs, Plans and Carriers must cover OTC COVID-19 tests that meet the criteria specified under the FFCRA even if they are not ordered by a health care professional, and must cover such tests without imposing cost-sharing, prior authorization, or medical management requirements.  This is so even if there is no order from a health professional for an Individual.

Coverage by the plan may be accomplished by directly reimbursing Individuals for their purchase upon submission of a claim by the Individual, or by reimbursing the entity who sold the OTC COVID-19 test directly, though the agencies strongly encourage plans to adopt the latter approach.

Note, however, there is no requirement for Plans or Carriers to provide coverage of OTC COVID-19 tests that are intended for employment testing, such as weekly testing an unvaccinated Individual is required to undergo pursuant to the OSHA Emergency Temporary Standard (“ETS”) or an employer’s own mandated testing program.

Plans and Carriers are required to reimburse OTC COVID-19 tests purchased from any retailer or pharmacy if the test meets the FFCRA statutory criteria, but if the test is administered without a health care provider’s assessment or order for testing and purchased from out-of-network pharmacies or retailers, then the Plan or Carrier may limit reimbursement to the lower of the actual price or $12 per test if the Plan or Carrier arranges for direct coverage (meaning the Individual who purchases the OTC COVID-19 test is not required to seek reimbursement post-purchase or make any up-front out-of-pocket expenditures) of OTC COVID-19 tests that meet the FFCRA criteria through both its pharmacy network and a direct-to-consumer shipping program.  Per the agencies, the direct-to-consumer shipping program may be provided through one or more in-network provider(s) or another entity designated by the Plan or Carrier.

In order to limit reimbursements for tests purchased from non-preferred providers, Plans and Carriers must ensure there are an adequate number of retail locations (in-person and online) with access to OTC COVID-19 tests and communicate necessary information about the direct coverage program, including when it is available and which retail pharmacies are available.

Per the agencies, whether access is adequate is determined based on all relevant facts and circumstances, including where Individuals are located and current utilization of the Plans’ or Carrier’s pharmacy network by Individuals.  Further, if there are significant delays for individuals to receive the OTC COVID-19 tests, such as through the shipping program, the Plan or Carrier must allow Individuals to purchase (and be reimbursed for) their OTC COVID-19 tests from any retailer.

The agencies also recognize the important need for adequate testing to be available to health care providers who are diagnosing and treating COVID-19, and that everyone has reasonable access to OTC COVID-19 tests.  Thus, to prevent stockpiling and provide adequate safeguards, the agencies permit Plans and Carriers to limit OTC COVID-19 tests purchased by Individuals without a health care provider’s involvement or assessment, the agency provides a safe harbor from agency enforcement action for Plans or Carriers that limit the number of OTC COVID-19 tests eligible for reimbursement per Individual to no less than eight (8) tests per 30-day period or per calendar month.  Plans and Carriers are not permitted to limit Individuals to a smaller number of tests over a short period of time (such as limiting Individuals to four (4) tests per 15-day period).  Plans can choose to be more generous by reimbursing a larger number of OTC COVID-19 tests (i.e., more than 8) per calendar month if they prefer.

Testing for Employment Purposes

Plans and Carriers are permitted to address suspected fraud and abuse, such as taking reasonable steps to ensure OTC COVID-19 tests are purchased for an Individual’s (or their covered family member’s) own personal use as long as the steps do not create significant access barriers.  This may include requiring attestations that the OTC COVID-19 test was purchased by the Individual for personal, non-employment related use, will not be reimbursed by another source, and will not be made available for resale as long as the attestation process is reasonable and does not result in undue delay of reimbursement.  Plans and Carriers may also require reasonable documentation as proof of purchase, such as the UPC code from the OTC COVID-19 test, when claims are submitted.

Finally, Plans and Carriers may assist Individuals by providing education and information resources to support Individuals seeking OTC COVID-19 testing as long as the materials clearly indicate the Plan or Carrier is required to cover all OTC COVID-19 tests that meet FFCRA criteria (subject to the safe harbors referenced previously).  The FAQs provide some examples of potential education and information resources Plans and Carriers may use.

What Does This Mean for Employers?

Employers are encouraged to work with their carriers or third-party administrators and stop-loss carriers to ensure these new requirements are implemented and to determine whether the plan will implement any of the permitted safe harbors so that this can be effectively communicated to employees and their family members.

The agencies clarified that they will not take enforcement action against Plans or Carriers for modifying health insurance coverage mid-year to meet these requirements or for failing to meet the 60-day advance notice requirements (for changes made to information required to be included in SBCs) if notice of these changes is provided as soon as reasonably practicable.

Finally, employers should clearly articulate to employees that the employer’s testing policy adopted pursuant to the OSHA ETS, if any, is not subject to this requirement and, employees are expected to pay out of pocket for weekly COVID-19 tests without seeking reimbursement from the employer’s group health plan if the employer does not pay for the applicable testing.  Further, pursuant to the OSHA ETS, while the employer may allow an OTC COVID-19 test to be used for purposes of applicable employment testing, the test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

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About the Authors.  This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act.  Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

This notice is a service to our clients and friends.  It is designed only to give general information on the developments actually covered.  It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.

Benefit Advisors Network and its members are not attorneys and are not responsible for any legal advice.  To fully understand how this or any legal or compliance information affects your unique situation, you should check with a qualified attorney.

© Copyright 2022 Benefit Advisors Network. All rights reserved

2022 Advice and Reminders for Comp and Benefits Managers

Posted on by Bobbi Kloss, BAN Director of Human Capital Management

Trends and developments to follow in the year ahead

By Stephen Miller, CEBS

January 5, 2022

s the new year gets underway,SHRM Online has collected the following predictions from experts on how compensation, benefits and workplace culture are likely to change.

Take Steps to Counter the Great Resignation

Employers facing worker shortages are now open to enacting certain changes, such as:

  • Marketing the company as a “Best Place to Work.” With the rise in remote work, thecompetition is no longer just about the company next door, but also about the company across the country.
  • Adopting a total rewards strategy. This involves expanding benefits beyond traditional health, dental, vision, disability and life insurance plans.
  • Considering increased salaries if possible. Is your company paying competitively for the work it expects?
  • Relaxing policies as appropriate. Amazon, for instance, is no longer screening for marijuana during drug testing.
  • Being creative with work/life balance benefits. The pandemic showed that office employees can work virtually from anywhere in the country or the world and be just as productive as long as they have accommodations and flexibility.

—Bobbi Kloss is the director of human capital management services for the Benefit Advisors Network, a national network of independent employee benefits brokerage and consulting companies.

Expect Challenges Around DE&I and the Future of Work

Many workforce trends that will continue into the new year have implications for diversity, equity and inclusion (DE&I) strategies and outcomes. Examples include the following:

  • Hybrid workplaces could lead to disparities. Having some employees working remotely and others performing their jobs onsite can create subtle inequities. Companies will need to be intentional about tracking promotions, pay scales and opportunities to ensure that remote employees are not treated less favorably.
  • The Great Resignation shows no signs of stopping. In 2021, we saw people leave their jobs in droves in search of more money, more flexibility and more happiness. In response, we’ll see employers pressured to make changes such as offering increased wages, hiring incentives and competitive benefits to attract talent, and they’ll also focus on internal mobility, reskilling and upskilling to retain existing employees.
  • Companies can no longer ignore mental health. The COVID-19 pandemic worsened workers’ mental health and emotional well-being. To create an environment that supports mental health, companies can appoint a senior leader in charge of mental health initiatives, offer mental health benefits that are on par with physical health benefits, ensure easy access to resources without stigma and measure how well they’re meeting employees’ needs.
  • Parental leave will take center stage. The pandemic brought to light the challenges working parents and caregivers face. We’ll continue to see discussions around parental leave as workers demand better policies that put families first.

—Mandy Price is CEO and co-founder of Kanarys, a technology company that provides organizations with tools to address DE&I challenges.

Address Virtual Care and Health Equity Issues

Employers will seek increased telehealth availability and improved mental health while working toward health equity—ensuring the same access and quality of health care to all employees, including those from historically disadvantaged groups. Among these trends:

  • Virtual health is here to stay, but integration with in-person care is key. Virtual health has a growing role in primary care and the management of chronic conditions. Harnessing its full value will mean helping patients to integrate care they received in person at a doctor’s office or clinic with care they receive via a telehealth service, as these providers may not be sharing clinical data. It will also be important to create a level playing field with regard to how insurers reimburse care providers.
  • Virtual mental health services are expanding. The pandemic has exacerbated long-standing challenges pertaining to mental health and emotional well-being, including lack of locally available therapists and the stigma that often prevents people from seeking in-person care. Employers have responded by providing digital therapy, which can bridge access gaps for employees. Employers, however, must remain focused on the quality of these resources.
  • Increased health equity is a focus. Employers are seeking to achieve health equity by offering inclusive and affordable health benefits and well-being programs, using health provider networks that are representative of the population, and analyzing claims for signs of unequal treatment. The aim is to mitigate differences in health outcomes across the workforce, including among those in under-resourced or marginalized groups.

—Ellen Kelsay is president and CEO of Business Group on Health.

Reminder: Expiring Benefits Plan Relief Provisions Under pandemic relief rules, employers can let participants in health care flexible spending accounts (FSAs) or dependent care FSAs carry over unused balances from a plan year ending in 2021 to a plan year ending in 2022, or extend to 12 months the grace period for spending unused FSA funds for plan years ending in 2021. Employers can choose to provide either or neither of these extensions. Other relief provisions ended at the close of 2021, even though the pandemic has not ended. Expired relief provisions include: The amount that employees can reduce their salary to fund a dependent care FSA goes back to the statutory limit of $5,000 in 2022, down from $10,500, for single taxpayers and married couples filing jointly. It reverts back to $2,500 for a married person filing separately, down from $5,250. Employees can no longer change their salary reduction elections to a health or dependent care FSA in the middle of the year unless the change in election is due to a change in status event such as marriage, divorce or new child; such midyear election changes were permitted in 2021. If an employee leaves a job in 2022 without using all the dollars in a health FSA, the employee will have to forfeit that unused amount; in 2020 and 2021, employers could allow terminated employees to access those unused amounts for health expenses until the end of the plan year. High-deductible health plans linked to health savings accounts (HSAs) will no longer be able to subsidize telehealth services before the deductible limit is met. In 2020 and 2021, insurance coverage that subsidized the cost of telehealth services pre-deductible did not prevent a worker from making HSA contributions. Despite these relief provisions ending as 2022 begins, it’s important to show employees the value of continuing to participate in employer-sponsored FSA and HSA programs. —William Sweetnam is the legislative and technical director at the Employers Council on Flexible Compensation.


Related SHRM Article:

As Work Changed in 2021, Employee Pay and Benefits Stepped Up, SHRM Online, December 2021

6th Circuit Court of Appeals Dissolves 5th Circuit’s Stay of OSHA Emergency Temporary Standard for COVID-19 Vaccine and Testing; OSHA Plans to Implement Beginning January 10, 2022

Posted on by Stacy Barrow

On December 17, 2021, the United States Court of Appeals for the 6th Circuit (6th Circuit) dissolved the stay of OSHA’s November 5, 2021, Emergency Temporary Standard (ETS) for private employers with 100 or more employees issued by the United States Court of Appeals for the 5th Circuit (5th Circuit).  As a result of the 6th Circuit’s decision, OSHA announced that it intends to move forward with implementing the ETS. OSHA indicated it will not issue citations for noncompliance with its November 5, 2021, ETS before January 10 (which is now the deadline for employers to, among other things, develop their written COVID-19 vaccination policies). Further, if an employer is exercising reasonable, good faith efforts to come into compliance with ensuring its employees are fully vaccinated or submit to weekly testing, OSHA will not issue citations for any employees who are not fully vaccinated before (or if the employer is not testing prior to) February 9, 2022. 

Note, the 6th Circuit’s order only impacts private employers with 100 or more employees, it does not address the ETS for Health Care Workers or the COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors, both of which have been separately enjoined in other lawsuits.  Currently, the mandate for health care workers has been enjoined in twenty-four states and the federal contractor mandate has been enjoined nationwide.

OSHA ETS

As a reminder, the ETS originally required employers with 100 or more employees to develop and implement a mandatory, written COVID-19 vaccination policy by December 5, 2021, or a written policy requiring employees to either be vaccinated or produce a negative COVID-19 test result and wear a face covering at work. Employers were originally required to begin enforcing the policy on January 4, 2022, meaning most employees of covered employers would have to submit to regular testing and wear a face covering or be fully vaccinated by January 4, 2022.

The ETS permits covered employers to allow for reasonable accommodation for employees who cannot be vaccinated and/or wear a face-covering due to a disability, as defined by the ADA, or if vaccination, and/or testing for COVID-19, and/or wearing a face-covering conflicts with an employee’s sincerely held religious belief, practice, or observance.

Further, the ETS requires employers to provide employees with time off for obtaining their vaccinations.  Specifically, the ETS requires employers to provide employees with a reasonable amount of paid time (up to 4 hours at their regular rate of pay per dose, as applicable) to travel to and receive their COVID-19 vaccine dose(s).  Further, employers are required to provide reasonable time and paid sick leave to employees who need the time to recover from the side effects of either dose, as applicable, of the vaccine.  

Litigation Background and 6th Circuit’s Decision

The OSHA ETS was immediately challenged by a number of petitioners, including states and private companies, seeking to permanently enjoin enforcement of the ETS.  On November 6, 2021, the 5th Circuit temporarily stayed enforcement of the ETS pending briefing by the parties and expedited judicial review. 

After completing its expedited review, on November 12, 2021, the 5th Circuit affirmed its initial stay, holding that petitioners met all four factors to establish the need for further stay, and ordered OSHA to take no further steps to implement or enforce the ETS pending adequate judicial review of the request for permanent injunction. 

Given the number of legal challenges in multiple federal jurisdictions, a “multi-circuit lottery” occurred on November 16, wherein the 6th Circuit Court of Appeal was assigned to hear the consolidated cases.  Just over a month later (after briefing by the parties), on December 17, 2021, the 6th Circuit issued an order dissolving the 5th Circuit’s stay, finding, among other things, that OSHA’s statutory mission to ensure safe and healthy working conditions for workers gives the agency broad authority to promulgate standards to meet this mission, including the authority to address viruses and infectious diseases in the workplace. 

What Does This Mean for Employers?

While the case is expected to be appealed to the United States Supreme Court (“Supreme Court”), there is no guarantee the Supreme Court will grant certiorari to review the decision or, if the Supreme Court does grant certiorari, that it will overturn the 6th Circuit’s decision.  Moreover, OSHA intends to move forward with implementing the ETS unless or until the Supreme Court decides otherwise.  Accordingly, if they have not already done so, covered employers are encouraged to begin developing their written policies, notifying their employees whether they will be expected to be fully vaccinated by February 9, 2022 (if the employer is not implementing a testing option), or communicating how their testing option will work beginning on February 9, 2022, for those who are allowing a testing option. 

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About the Authors.  This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act.  Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

This email is a service to our clients and friends.  It is designed only to give general information on the developments actually covered.  It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.

Benefit Advisors Network and its members are not attorneys and are not responsible for any legal advice.  To fully understand how this or any legal or compliance information affects your unique situation, you should check with a qualified attorney.

© Copyright 2021 Benefit Advisors Network. All rights reserved.

Wishful thinking: Brokers predict 2022’s top headlines

Posted on by Bobbi Kloss, BAN Director of Human Capital Management

If the pandemic were to magically disappear on 12/31, what news would benefits advisors like to see make headlines in 2022?

By BenefitsPRO Editors | December 29, 2021 at 09:46 AM

If the pandemic were to mysteriously disappear on the last day of 2021, what big trends or topics would you like to see take its place in the headlines during 2022?

Extra, extra!

Here are some themes I think it would be nice to see:

Reiterating the importance of maintaining/resuming preventive services that were disrupted by the COVID-19 pandemic. For example, the pandemic led to a significant decrease in cancer screening, which could mean that some early cancers may have gone undetected, leading to later diagnoses and worse (and more costly) outcomes. Getting preventive services back on track should be a major priority.

The other thought I had was a focus on embracing and expanding employee access to mental health benefits. It’s no secret the pandemic wreaked havoc on the average person’s mental health. Many even turned to drugs and alcohol to cope. So it should come as no surprise to employers when they see a major increase in demand for mental health benefits. Nor should it be surprising to employers to find themselves falling behind in attracting and retaining top employees should they fail to provide the appropriate resources.

Here’s a headline I hope to see in the near future:

“Employers refocus efforts on improving employee health care consumerism, see major breakthrough: benefits literacy rates climb, health care costs plunge”

Matt Derus, content attorney & market analyst, Zywave

Refocus

In 2022, I hope that as benefits professionals, we will stop and reflect on what access actually means. Having insurance or being eligible for a health plan does not equal access to care. Unfortunately, it is not enough to just offer a benefit for the sake of offering it; that’s shortsighted, expensive and unsustainable.

We have to focus on the outcomes we’re trying to achieve, and build the programs from there. When we do that, we are better able to address (or plan around) weak links early on. Focusing on access and outcomes means we have to understand the supply chain. In health care, as we’re seeing today with mental health resources, the strength or weakness of each link of the chain affects access to care. We also see these issues in other areas of health care, including critical access to specialists. On a related note, when we fail to diversify our vendors, there’s so much we miss–issues that could have been addressed early on that were not seen or contemplated.

Uche Enemchukwu, co-founder and CEO, Nelu Diversified Consulting Solutions

Addition by subtraction?

Here’s the message I’d like to see from Mark Zuckerberg in 2022:

“Since its inception, Facebook has done a world of good as a conduit of social networking, helping to establish and re-establish relationships. But people today can connect in a myriad of different ways. Where Facebook was once a unique, singular beacon of constructive pathways, it has turned dark. It’s morphed into an ugly ‘too big to fail’ behemoth.

“Though I’m immensely proud that I achieved my goals, a toxic atmosphere has permeated my organization, both inside and out: racism, sexism, political and religious antagonism/hatred, homophobia, etc. Also, the crass monetization of those very things. I’m a wealthy man because of Facebook. And because I am, I can afford to shut it down, which I’m doing so effective immediately (Dec 31, 2021).

“With the pandemic now over, please take advantage of every opportunity to meet your friends and loved ones in person, and cherish the time you and your fellow citizens of the world have to spend together in unity and harmony. Life’s too short for impersonal and irrational hatred. Peace and love to all!”

Jason Marcewicz, content and communications specialist, Advanced Medical Strategies LLC

Looking ahead

I’d love to see better HSA investment vehicles. Target-date funds have changed 401(k)s by making it easy, and by increasing allocation to stocks, which do better over time, all with low fees. Something similar for HSA dollars could help boost HDHP enrollments, the percentage of people who invest their HSA balances, and HSA savings. As little as $150/month, invested to hedge health care inflation, goes a long way to neutralizing out-of-pocket costs in retirement.

Joe Andelin, founder, Olavi Group

Outside the box

If fueled by economic stagnation and monetary inflation, 2022 will drive employers to seek alternative funding strategies. The introduction of cost transparency will inject a new sense of “consumerism” at the C-suite level, resulting in fundamental change and executing on long-term strategic initiatives. We will also see a hastening of larger benefit practices also embracing the health care cost-containment train.

As a result of greater pricing transparency, the PPO value will begin to weaken not only for employers, but also for providers. Through more direct engagements, providers will strengthen relationships with stakeholders (employers), driving greater value for each party while benefiting the community as a whole. Patients benefit by gaining access to quality providers at little to no cost, with some expectation of an improved health care experience.

Doug Hetherington, CEO & program architect, HealtH2Business

Accentuate the positive

Although I predict 2022 headlines to continue grasping at the ugly to attract audiences with clickbait, my evolutionary story in 2022 dreams of a less radical society with words like “harmony,” “generosity,” “kindness,” and “honesty” dominating the headlines. Particularly at this challenging time, let’s all work to emphasize the positive, reflect on the constructive and ignore the unpleasant.

Let’s change “If it bleeds, it leads” to “Good, better, best….never let it rest.”

Rina Tikia, managing director, Risk Strategies Company

Time to reconnect

Poof! It’s January 1st, 2022 and all of those hopeful pleas for normalcy to return have suddenly been answered. The phrases “masking up,” “covid testing,” “quarantining,” “social distancing,” etc. aren’t quite a distant memory but are less prevalent. Now that we can return to more “normal” conditions, there are plenty of initiatives I’m excited to see reoccur in the workplace:

  • On-site biometric screenings so employees can be proactive about their health. We’ve seen too many employees defer preventive and wellness visits. Let’s catch those potentially dangerous and costly conditions early!
  • Provide in-person dietician-led sessions to teach employees some healthy recipes and prep ideas to set them up for a successful day of eating. In addition to Domino’s Pizza stock price soaring over the past 18 months, so did people’s waist sizes. The U.S. already had an issue with obesity pre-COVID; lets get in front of this issue and help people eat healthier diets.
  • Organize yoga in the park to stretch our minds and bodies.
  • Help employees relax with chair massages.
  • Invite employees out for happy hour, meals or appetizers as a way to reconnect with employees.
  • Plan a “bring your child to work” day as a fun way to show off your workplace to your family and let your coworkers meet your children.

As we head into the new year, I’m excited to help employers get back to some in person activities that promote healthy physical and mental living while reestablishing the human connection.

Brian Lacher, vice president, employee benefits, Nielsen Benefits Group

The business of health equity

I’d love to see us focus on health equity as a solution to cost waste and quality deficiencies. Employers should be at the center of leading this effort, as they are uniquely positioned to leverage their own data to get a view on race/ethnicity, medical claims, short-term disability etc. They are paying more than $22,000 per family in premiums, therefore having the financial leverage with medical systems and health plans to get real action steps in place. It should not be left up to the health care system to “own” this, as it has been for our lifetimes and beyond. The problem has to be disrupted by purchasers/patients and employers at the top!

Frankly, centering health equity is centering our front-line doctors who are burnt out, depressed and disenfranchised. There are many solutions created and led by people of color who consider these issues, yet they aren’t getting in the door at the rate of other innovators.

Equity is the top economic, social, and human-centered opportunity of this era! Those who think of it and approach it as merely an option will contribute to capping our potential in this country, and will be accountable for the many lives lost and harmed physically, emotionally, and financially. Bad care costs us billions upon billions. This is a business issue.

Jessica Brooks Woods, President & CEO, Pittsburgh Business Group on Health Founder

Wishful thinking

“HR strategists are given an extra week of paid time off” “Ping pong tables are back in the rec room” “Mask? What’s a mask?”

Bobbi Kloss, director, Human Capital Management Services for the Benefit Advisors Network (BAN)

Be happy

I believe one ideal will ring true… people will find their happiness.

We just went through a time that gave us the awareness of what we truly value in our lives, it’s time to take action and achieve. Life is too short.

I believe happiness should be free or at least low-cost. I do believe there will be more cost-effective mental health solutions that give people much easier and affordable access to therapy. It’s no longer a taboo subject, and if it is to you, I urge you to take an internal look and realize everyone has struggles. No one has a perfect mindset all the time, doesn’t our society laugh at “happy people” all the time anyway? That just shows how normal it is to not be the best version of ourselves.

It’s time we take care of each other and our neighbors and seek to understand and respond rather than to judge. Plus, it feels better when we can fill each other’s cups. Let’s be happy together.

Ed Ligonde, executive vice president, Nielsen Benefits Group

Back on track

Multiple studies have demonstrated that when the pandemic hit, people delayed critical preventive health care, and many continue to do so. Moving into a 2022 without COVID-19, it would be great to see everyone get back on track with their health and well-being and get the care they may have put off for the past 18+ months. Ideally, this would start with biometric screenings to measure any changes since early 2020. Along the same lines, I would envision a surge in wellness and related program utilization as we now have even more capabilities than we did pre-pandemic to personalize employees’ experiences to get the right content and care for their health and well-being goals.

Marcia Otto, vice president, product strategy, Health Advocate

Roaring 20’s, take 2

I’d like to see more headlines focusing on economic growth, prosperity, employment gains and increased savings rates for all Americans. The data we’re seeing today amid inflation, rising health care costs, and more is painting a bleak picture of what tomorrow may bring. At the same time, I think that all of this will help to push many to just do better – and hopefully be nicer. Here’s to brighter days ahead, and a fun Roaring 20’s 2.0.

Derek Winn, benefits consultant, Business Benefits Group

Time to hit the books

After the holiday vacations are over, it’s back to school with health literacy in 2022. As new transparency rules are in place, multi-generational employees will be looking to get more from their benefits, and ongoing education will be critical in health care. Despite ongoing efforts by employers and advisors alike, it’s important to understand that health care is still complicated for most employees and consumers.

Advisors should be ready to support clients by promoting ongoing education to employees and improving the consumer experience with their benefit plans by leveraging technology, engagement, and decision support tools. Similar to consumers shopping online for nearly everything they purchase, they should have the same access and information for health care, written in language blue collar, white collar and everyone in between can easily understand. While some consumers–usually those of the younger generations – are more comfortable with technology, the reality is they still rely on their providers for guidance and direction. Let’s get back to helping employees take control of their health care journey.

Denise Stefanoff, interim executive director, Benefit Advisors Network (BAN)

Time to hit the books

After the holiday vacations are over, it’s back to school with Health Literacy in 2022. As new transparency rules are in place, multi-generational employees will be looking to get more from their benefits, and ongoing education will be critical in healthcare. Despite ongoing efforts by employers and advisors alike, it’s important to understand that health care is still complicated for most employees and consumers. Advisors should be ready to support clients by promoting ongoing education to employees and improving the consumer experience with their benefit plans by leveraging technology, engagement, and decision support tools.

Similar to consumers shopping online for nearly everything they purchase, they should have the same access and information for healthcare, written in language blue-collar, white-collar, and everyone in between can easily understand. While some consumers – usually those of the younger generations – are more comfortable with technology, the reality is they still rely on their providers for guidance and direction. Let’s get back to helping employees take control of their healthcare journey

Bobbi Kloss, director, human capital management services, Benefit Advisors Network (BAN)

IRS Proposes Permanent 30-day Extension to ACA Reporting Deadline

Posted on by Stacy Barrow

On November 22, 2021, the IRS filed a Notice of Proposed Rulemaking (“Proposed Rule”) that among other things, provides for an automatic 30-day extension of the deadline for applicable large employers (“ALEs”) to furnish annual Forms 1095-C to individuals for calendar years beginning after December 31, 2021.  Further, the Proposed Rule allows ALEs to voluntarily adopt this extension for calendar years beginning after December 31, 2020, which means this would apply to the calendar year 2021 Forms 1095-C, which are due in 2022.

Generally, the deadline is January 31 each year, and current regulations allow the IRS to grant an extension of time of up to 30 days to furnish Forms 1095-B and 1095-C to individuals for good cause shown; however, recognizing the current January 31 deadline is difficult to meet, the Proposed Rule eliminates the good cause shown standard and simply allows for an automatic 30-day extension to March 2, 2022.  In years where the deadline falls on a weekend or holiday, the forms are due the next business day.  

The deadline to file the Forms 1094-B or C and 1095-B or C with the IRS are not extended and will remain February 28 for paper filings and March 31 if filed electronically, though pursuant to current regulations, companies may receive an automatic 30-day extension of time to file the forms with the IRS by submitting Form 8809, Application for Extension of Time to File Information Returns, on or before the due date for filing the forms.

Additionally, because the penalty for the individual mandate is currently $0, for any calendar year in which it remains $0, the Proposed Rule provides relief (consistent with relief provided for tax years 2019 and 2020) from furnishing Forms 1095-B to individuals, if the responsible reporting entity:

  1. Posts a clear and conspicuous notice in location on its website that is reasonably accessible to individuals stating that individuals may receive a copy of their 1095-B upon request, accompanied by an email address, phone number and a physical address the request can be sent;
  2. Furnish an individual with a Form 1095-B within 30 days of a request; and
  3. Retain the notice in the same location of its website until October 15 – or the first business day following October 15 if October 15 falls on a weekend or holiday – of the next calendar year. This would be October 15, 2023 for the tax year 2021 Form 1095-B.

The website notice must be written in plain, non-technical terms and with letters of a font size large enough, including any visual clues or graphical figures, to call a viewer’s attention that the information pertains to tax statements reporting that individuals had health coverage.  Per the IRS a statement or link on the company’s main page reading “Tax Information”, which takes users to a secondary page that includes a statement in capital letters such as “IMPORTANT HEALTH COVERAGE TAX DOCUMENTS”, would meet this requirement.  This relief from providing the B-series forms typically applies to insurance companies (who are required to file and furnish Forms 1095-B to participants in their fully insured plans), non-ALEs with self-insured plans, and ALEs who provide coverage under a self-insured plan to individuals who were not full-time employees during any part of the year (e.g., part-time employees, or retirees or COBRA participants in the year following retirement or termination of employment).

ALEs are still required to furnish Form 1095-C to their full-time employees. They must also complete Part III if the employee is enrolled in self-insured coverage. Further, the relief from furnishing Form 1095-B does not extend to IRS reporting.  Forms 1095-B must still be submitted to the IRS, as applicable. 

Finally, consistent with Notice 2020-76, per the Proposed Rule, the IRS intends to eliminate the good faith effort to comply relief that was in effect from tax years 2015-2020.  The good-faith effort to comply provided reporting entities relief from accuracy-related penalties if they could show a good faith effort to comply. However, for the calendar year 2021 reporting and beyond, reporting entities will no longer have this relief available and must ensure accurate information is reported. Employers who are penalized for accuracy-related errors may have an opportunity to appeal under the “reasonable cause” standard, which is stricter than the good faith standard.

Conclusion

Based on the Proposed Rule, ALEs have until March 2, 2022, to furnish Forms 1095-C to individuals, but still must meet the February 28 (paper filing) or March 31, 2022 (electronic filing) deadlines to file Forms 1095-C with the IRS.  Moreover, as long as the individual mandate penalty remains $0, insurance carriers, non-ALEs with self-funded plans, and ALEs with self-funded plans who provide coverage to part-time employees or non-employees, are not required to furnish Forms 1095-B to individuals if they meet the requirements for posting information regarding how individuals may receive copies of their Form 1095-B.

Further, because there is no longer good-faith relief from reporting errors, it is important for employers to review the Forms 1094-B or C or 1095-C before they are filed with the IRS to ensure information is accurate and correct any inaccurate information as soon as possible after discovery of the error.

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About the Authors.  This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on ERISA-governed and non-ERISA-governed retirement and welfare plans, executive compensation, and employment law.  Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

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