Seyfarth Synopsis: On Wednesday afternoon, the Senate voted 90-8 to approve HR 6201 without changes. The law generally takes effect no later than 15 days after HR 6201 is signed (expected soon) and would sunset on December 31, 2020.

In somewhat of a surprise move, the Senate voted overwhelmingly to adopt HR 6201 (described here and here) without change.

We understand many employers have already been approached by their third-party administrators asking for their consent to adopt these changes. In fact, many employers are considering waiving cost-sharing for all COVID-19 treatment (not just treatment relating to the screening). If employers have not yet been contacted by their TPAs, they should consider reaching out.

Further, employers should consider how the plan design change needs to be made. In our experience, it is not uncommon for companies to delegate legally required changes to a sub-committee or to HR professionals. Depending on the plan’s amendment procedures, it may be possible to amend the plan by issuing a “Summary of Material Modifications.”

Congress has already announced its intention to quickly take up another COVID-19 relief bill. We will monitor for the potential impact on plan sponsors and keep you apprised.

Seyfarth Synopsis: Late Monday night, the House passed a technical corrections package to HR 6201. While most of the changes related to the Bill’s paid sick leave, unemployment insurance and tax credits provisions (click here for a summary of those changes), there was one small change to the health insurance section: The package clarified that plans must provide no-cost coverage for telehealth services related to coronavirus testing. This post explores the implications of that seemingly minor change.

 As noted in our prior blog post, HR 6201 would require health plans of all shapes and sizes to cover COVID-19 testing and any related office visits or hospital admissions, at no cost to participants. The technical corrections added a parenthetical clarifying that plans would be required to provide “coverage, and shall not impose any cost sharing” for telehealth services related to COVID-19 testing. While this is seemingly a simple addition, it creates a number of questions, including:

  • If a plan does not currently offer a telehealth option, will it be require to add a telehealth service?
  • If a plan presently covers telehealth through a contracted stand-alone vendor (e.g., Teladoc, MD Live), will it be required to also cover telehealth visits with traditional providers (e.g., primary care physicians)?
  • If a plan expands coverage to offer telehealth for medical services relating to COVID-19 screenings, is it required, under the MHPAEA, to also offer telehealth services for mental health or substance abuse counseling?
  • Will vendors be able to code COVID-19-screening related telehealth “visits” so that plans may identify circumstances where cost-sharing must be waived? If not, can a plan instead establish a reimbursement vehicle (e.g., a health reimbursement arrangement) to offset the associated costs?

While not at the core of these provisions, questions remain as to whether plans may waive cost-sharing for all telehealth services (those COVID-19 related or otherwise) without impacting the status of a high deductible health plan. (IRS guidance issued last week clarified that fees may be waived for all services relating to COVID-19, but it did not address telehealth more broadly, which has increased in popularity as participants seek to avoid hospitals and doctors’ offices).

We will continue to monitor and provide additional updates on HR 6201 as it moves to the Senate.

Visit our COVID-19 Resource Center for an extensive overview of workplace considerations relating to the coronavirus.

Seyfarth Synopsis: Late Friday evening, the House of Representatives overwhelmingly passed a bill (HR 6201) targeted to provide relief for individuals impacted by the spread of SARS-CoV-2, the coronavirus that causes COVID-19. The bill addresses paid sick leave and the expansion of FMLA. This post, however, is aimed at the provisions applicable to employers’ medical plans.

From a benefits perspective the bill appears to apply broadly to all medical insurance plans, whether insured, self-funded, group or individual coverage. It also applies to Medicare, Medicaid, TRICARE, Tribal insurance, etc. The bill is sweeping enough to bring in all employer-sponsored group health plans (and multiemployer plans), including those that may still be grandfathered under the Affordable Care Act.

Notably, the law also contains federal funding to cover testing for the uninsured. This is helpful as many employers have inquired about members of their workforce who do not meet their major medical plans’ eligibility criteria, but under current law it could be impermissible to offer a plan covering COVID-19 testing only and nothing more. If federal funding is available for this population, employers will feel some relief about trying to design a solution.

The bill focuses on the expansion of access to testing for the SARS-CoV-2 virus, or any other virus that could cause COVID-19, through “in vitro diagnostic products” approved by the FDA. Those are lab tests using blood or tissue samples. Such testing is to be covered without any cost-sharing requirements. That is, free.

While the bill is not so expansive as to directly cover all medical treatment following a diagnosis of COVID-19, it does cover all items and services furnished to an individual during health care provider office visits, urgent care center visits, and emergency room visits that result from an order for or administration of such testing for COVID-19. To be covered without cost-sharing, these items and services must be related to the furnishing or administration of the testing or to the evaluation of the individual to determine if s/he needs testing.

If the plan doesn’t provide first dollar coverage for this type of testing and related services, it appears the plan would have to be modified to offer coverage. And if the plan imposes any form of cost-sharing, that would need to be waived.

While President Trump has thrown his support behind the Bill, resulting in support from the House Republicans as well, there have been mixed signals from the Senate. Majority Leader McConnell has expressed his intent to take up the Bill early this week, and at that point the timing (and substance) of a final law should become more clear.

Visit our COVID-19 Resource Center for an extensive overview of workplace considerations relating to the coronavirus.

Seyfarth Synopsis: The SARS CoV-2 virus (“coronavirus”) has been declared a global pandemic by the World Health Organization. It’s fair to say that none of us have ever experienced a pandemic, or at least not on this level. So how this outbreak will impact our daily lives is yet to be fully understood, and is evolving day-to-day. As employee benefit counsel, we know that there are certain filing and disclosure deadlines coming up. It’s been reported that the IRS is preparing to extend the April 15 income tax filing deadline, so that raises the question – what other upcoming IRS, DOL or retirement plan deadlines might also need to be extended?

As we are seeing, the impact of the coronavirus is far-reaching. Employees are asking to (or being asked to) work from home, schools are closing for extended periods, restrictions on public gatherings and events are in place and necessities are flying off store shelves. While the government’s immediate concerns focus on paid sick leave, relief for hourly workers, food assistance, access to and coverage of the cost of coronavirus testing, and enhanced unemployment insurance, there are a number of items relating to employer-sponsored retirement plans to keep in mind as we navigate this unprecedented situation:

  • End of Initial Remedial Amendment Period for 403(b) Plans. Tax-exempt employers have until March 31, 2020 to adopt an IRS pre-approved 403(b) plan document or adopt a custom plan document to fix any plan document errors retroactively to 2010. This is a one-time “free-pass” so to speak. After that deadline passes, any document errors will need to be corrected under the IRS’s Voluntary Correction Program, which requires payment of a fee and possible other sanctions. So this is an immediate deadline that the IRS can (and should) defer. Hopefully we’ll hear from then soon about this one.
  • Close of IRS Determination Letter Program Window for Hybrid Plans. Last year, the IRS issued guidance re-opening its determination letter program to hybrid plans (e.g., cash balance plans and pension equity plans) for a limited 12-month period. That period is set to expire on August 31, 2020. It’s unclear at this point whether the IRS would consider extending this limited submission window.
  • SECURE Act Guidance. The SECURE Act contains a number of provisions impacting employer-sponsored retirement plans, many of which are already in effect. There are many unanswered questions about how to actually administer the changes and incorporate them into existing employer-sponsored retirement plans, and additional guidance is needed. Our understanding is that Treasury is working on guidance. However, it is unclear at this point what, if any, impact the coronavirus outbreak will have on this process, as potential government office closures loom and resources are shifted to focus on more immediate virus-related relief.
  • Retirement Plan Periodic Notice and Filing Requirements. Retirement plans are subject to numerous notice and filing requirements, including annual fee notices and annual Form 5500 filing requirements. While some of the deadlines for sending such notices or making such filings are a ways down the road, if offices are to close or business operations otherwise disrupted, it would be a good idea for the IRS and DOL to extend notice and filing deadlines well in advance. For example, if the commencement of the annual independent audit for qualified retirement plans is delayed, will the reports be ready for filing with the annual Form 5500? For that matter, will the Form 5500 itself be ready in time for filing?
  • Qualified Disaster Relief. In the past, the IRS has provided disaster relief for victims of certain hurricanes, wildfires and other natural disasters which have manifested themselves as a physical scorch on the earth. This relief has generally included an increased limit for plan loans, as well as the availability of qualified distributions up to a certain amount without the 10% early withdrawal penalty (and the ability to recontribute such distributions for a period of time after the distribution). It is unclear whether IRS will issue similar disaster relief for those impacted by the coronavirus.
  • Currently Under Audit? What should you do if your retirement plan is currently under an IRS or DOL audit and you are unable to meet the agency’s response deadline? The first thing that you should do is to drop the agent working on your case a note. You could call and leave a voicemail, but we prefer our clients documenting such a communication in writing. We are confident that neither the IRS nor DOL agent you are working with will strictly enforce any response deadlines in this current environment, but it would be nice if the agencies issued some announcement to that effect. Perhaps they will shortly. We can be assured that both the IRS and DOL are wrestling with this pandemic just as we all are.

So there are many other questions and few or no immediate answers. We will be monitoring this situation and will be sure to communicate any developments that arise. In the meantime, we extend our best wishes to all our readers as the current situation unfolds.

Seyfarth Synopsis: One of many COVID-19 benefits-related concerns focused on the ability of individuals covered under High Deductible Health Plans to have services to diagnose or treat the coronavirus covered before their deductible is met. The IRS has listened to the concerns and just issued guidance in response.

As aficionados of the benefits space know, a covered person under a High Deductible Health Plan (HDHP) cannot get medical services covered under the plan (other than preventive services, like the flu vaccine) before satisfying his/her deductible. The deductibles tend to be set at a very high level; hence the name “High Deductible” health plan. If services are covered before the deductible is met, the plan will fail to be a HDHP, rendering the covered person ineligible to make tax-favored contributions to a Health Savings Account (HSA) for that year.

Last week, America’s Health Insurance Plans (AHIP), a trade association that includes most major carriers and third-party administrators, announced that they would offer clients the opportunity to modify their plan designs to waive all cost-sharing for services relating to COVID-19 testing and treatment. Many TPAs also offered to waive fees for all telemedicine services (COVID-19 or otherwise), to reduce foot traffic in doctor’s offices where a patient is at greater risk of contracting the virus. While this was welcome news, it created much uncertainty for sponsors of HDHPs who wondered whether waiving cost-sharing would impact HSA eligibility for enrollees.

In Notice 2020-15, the Internal Revenue Service has issued welcome relief to individuals who have medical coverage under an HDHP (which constitute roughly 50% of commercial insurance policies). The IRS called the COVID-19 outbreak a “public health emergency” and stated that until further notice, a medical plan intended to be an HDHP will not fail to be an HDHP if it covers medical costs associated with testing and treating COVID-19 without application of the deductible or otherwise-applicable cost-sharing.

So, once testing kits are more widely available, an individual will be able to take the test and submit the cost of the testing to the HDHP without worry of losing eligibility for his/her HSA for 2020. Moreover, under this guidance it appears all other related care (hospitalization, office visits, etc.) could also be covered without cost-sharing.

Unfortunately, the guidance did not address whether telemedicine may be offered at no cost (pre-deductible) to a participant in an HDHP, except in the context of a coronavirus-related service. More guidance would be welcome in this space, but in the interim plan sponsors should proceed with caution and should consider whether to continue imposing some sort of cost-sharing for this benefit.

Seyfarth Synopsis: Recently a “whistleblower” leaked that the IRS had internally announced an upcoming modification to the very popular voluntary correction program (“VCP”) that would have been a significant disincentive for plan sponsors to use the VCP to report and correct plan disqualification errors. The leak went viral and sent benefits counsel and other retirement plan providers into a tizzy. Well it seems that the whistleblower may have gotten it wrong.

On February 25, a story hit the Internet that an anonymous IRS whistleblower reported that the IRS had informed its agents that in order to clear the backlog of VCP submissions, agents were instructed to enforce deadlines and automatically refer submissions for examination (e.g., IRS audit) if other VCP requirements were not timely met. For example, if an IRS deadline to provide additional information was not met or if the plan sponsor and IRS could not agree on an acceptable correction method, the plan would automatically be referred for IRS examination.

This put all of us into a real dither. The VCP was established almost 30 years ago and was a welcome relief to plan sponsors who discovered operational or plan document mistakes. Before the VCP was established, a plan sponsor faced the difficult choice to either sweep the mistake under the rug and hope for the best, or to apply to the IRS for a “closing agreement.” Given that obtaining a closing agreement was no certainty, might be costly and corrective measures and sanctions were very much uncertain, it should be no surprise the approach many sponsors took – sweep, bury, hope and pray.

So when the IRS established what eventually evolved into the VCP, good-intentioned plan sponsors now had a way to bring plan mistakes out into the light of day and fashion a correction without all the uncertainty of seeking a closing agreement. This is why everyone reacted strongly to the news that agents were encouraged to refer submissions for examination when a disagreement arose or delays ensued. Threatening plan sponsors with referral for an IRS audit seemed a bit of a “throwing the baby out with the dirty bathwater” approach to the problem.

It looks like the whistleblower’s interpretation of the directive may have been misguided. At the recent Tax-Exempt Entity/Governmental Entity (TE/GE) National Meeting in Washington DC, a senior TE/GE official clarified that the VCP was not being changed, and that agents were only reminded that they already had discretion to seek examination of an underlying plan if inquiries and requests for additional information were ignored or if the negotiation of an appropriate correction became deadlocked. The senior TE/GE official also stated that the cooperative attitude of the IRS was not changing, although it is hard to know how this might play out if, for example, the IRS makes a request than cannot be answered timely.

So it seems the IRS does not want the VCP to go the way of the do-do bird, and is painting the whistleblower as misinterpreting the internal discussions. Or perhaps it was just a hoax intentionally perpetrated to distract from the real news in the employee benefits world – the SECURE Act will require plans and plan sponsors to consider the numerous changes required or available to their retirement benefit plans? We doubt that Congress will open an investigation to find the truth, so we’ll all be left to wonder! In any event, here’s a link to a recent Legal Update on the SECURE Act we prepared so that you can start thinking about which changes you want to make to your retirement plans. It’s a good read!

Seyfarth Synopsis: Because everything has a coronavirus angle now….this blog post covers various issues and considerations plan sponsors and administrators should keep in mind as the coronavirus outbreak continues to escalate.

 While this list is by no means exclusive (and may be added to over time), here are a few steps plan sponsors can take to ensure they aren’t caught flat-footed if community spread continues:

  • HIPAA Privacy and Security.

o Non-HIPAA Medical Inquiries. It is not outside of the realm of possibility that if workers for your company test positive for COVID-19, your organization may be contacted by public health authorities seeking information about the worker’s symptoms, who they may have interacted with in the workforce, and where they may have traveled. Or, companies may seek to obtain verification from a worker returning from an at-risk country that the worker isn’t showing any symptoms of coronavirus. It’s important to understand that most of these types of inquiries are not governed by HIPAA because the request does not include a request to the health plan (the covered entity) for protected health information (PHI). That said, other employment laws or privacy laws may come into play (e.g., ADA restrictions on medical exams or inquiries, OSHA concerns, etc.). For a more detailed consideration of employment considerations, see the link below to our coronavirus website.

o Health Plan Disclosures to Public Health Entities. Even so, it’s possible that the CDC, HHS or a state agency may directly request information from the health plan to determine whether other persons have experienced symptoms consistent with COVID-19. HIPAA generally permits a health plan to disclose PHI to a public health authority to prevent or control the spread of an infectious disease. Such a public health authority can also request that the health plan disclose such PHI to a foreign government agency. If a health plan is unsure whether this permitted use exception applies, it could always seek an authorization from the participant to disclose the information. To be clear, even though an exception would permit a health plan sponsor to disclose PHI without the participant’s consent in this context, other HIPAA rules continue to apply, including the minimum necessary rule (limiting the scope of the disclosure) and the record-keeping requirements (tracking such disclosures and making them available upon request).

o HIPAA Policies – Remote Work Planning. Many health plan HIPAA privacy and security policies limit or prohibit employees within the HIPAA “firewall” from bringing home materials containing PHI or from accessing EPHI or creating paper copies of PHI remotely. Health plan administrators should consider whether to relax this requirement (and amend their policies accordingly) to facilitate remote-working/quarantine-type situations. To ensure proper safety standards exist (and depending on the nature/scope/sensitivity of PHI workers will be accessing), some health plan administrators might determine that it is appropriate to invest in equipment (software, locking file cabinets, etc.) to facilitate this remote-work shift.

  • Health Plan Coverage

o TPA Emergency Coverage Contingencies. Certain third-party administrator contracts contain catastrophic event clauses that permit the TPA to take certain actions in the event of a government-declared emergency. These measures can include waiving prior authorization requirements, paying non-network providers at the network rate, and loosening time limits for filing claims/appeals. Regardless of whether your agreement contains such provisions, plan sponsors should consider engaging their TPA in a discussion about contingency planning so that both parties are aligned and prepared.

o Medical Air-Evacuations. Medical air evacuations (especially non-network medical evacuations) can be one of the higher-cost services covered by health plans. Plan sponsors should review their health plan, stop-loss and BTA policies to determine whether adequate coverage exists in the event there is a need to transport a participant from a remote domestic location or from an international location to the US.

o What About Those Surgical Masks? While the title of the blog post was an attempt at humor, because it asks the question, we felt obliged to answer. Surgical masks might be covered as an eligible medical expense, depending on the circumstances (including whether they’re used for general prevention or due to personal illness or the need to treat a family member who has illness). Same goes for hand sanitizer. Purchasing surgical masks while healthy and not near people who have contracted the virus (which the CDC has asked the public not to do) would generally not be covered. If in doubt, request a letter of medical necessity.

  • Disability/Leave Policies

o Will Quarantine-Related Leaves Be Covered? If a person contracts COVID-19, that illness would often be covered by a company’s sick/disability leave policy (and if a family member contracts COVID-19, leave to care for that family member could be covered by the FMLA). That said, many company policies will not cover a quarantine-type circumstance (e.g., where a person has been exposed to a high-risk individual or is returning from a high-risk area but is not yet showing symptoms). Companies should consider how to handle these circumstances. While a detailed discussion is beyond the scope of this blog, see below for additional Seyfarth resources.

For a more extensive overview of workplace considerations relating to coronavirus, Seyfarth maintains a coronavirus legal issues and trends website:

By Namrata Kotwani and Ian H. Morrison

Seyfarth Synopsis: On February 26, 2020, the Supreme Court unanimously affirmed the Ninth Circuit’s ruling in Intel Corp. Investment Policy Committee, et al. v. Sulyma. 589 U.S. ___ (2020), holding that plan participants must read plan disclosures to have the “actual knowledge” required to trigger ERISA’s shorter 3-year limitation period for breach of fiduciary duty claims. ERISA’s 3-year statute of limitations is triggered when a plaintiff has “actual knowledge” of the alleged breach (29 U.S.C. § 1113(2)); however, without actual knowledge, a 6-year limitations period applies. The Court found that plan participants who have access to plan disclosures but do not read them cannot be said to have “actual knowledge ” of their contents. This interpretation of “actual knowledge” reduces protections conferred by proper disclosures on diligent fiduciaries, and will raise fact questions in many cases where plaintiffs had access to disclosures that clearly put them on notice of alleged fiduciary breaches.

Plaintiff Christopher Sulyma filed a putative class action in October 2015, alleging that Intel’s investment committee and other plan administrators breached their fiduciary duties by utilizing “alternative investments” that lagged behind high-performing index funds. The Northern District of California granted summary judgment to the committee based on plan disclosures that clearly revealed the disputed investments and were published more than three years before the plaintiff filed suit. The Ninth Circuit reversed the ruling, finding that Sulyma’s deposition testimony that he did not recall reviewing plan disclosures created a dispute of fact as to his “actual knowledge” and precluded summary judgment.

Affirming the Ninth Circuit, the Supreme Court unanimously found in an opinion authored by Justice Alito that although ERISA does not define “actual knowledge,” it plainly requires awareness of the “relevant facts” provided in the plan’s disclosures. In addition, Congress’s language in ERISA clearly identifies whether a particular statute of limitations is triggered by what a plaintiff actually knows or what he reasonably should know. The language in § 1113(2), however, clearly notes that only a plaintiff’s “actual knowledge” triggers the 3-year limitations period for a fiduciary breach action, rather than what he should have known from disclosures provided to him.

Justice Alito, however, stressed that that a participant’s assertion that he did not know about the disclosed information related to the alleged breach might not be the end of the story. “Actual knowledge” may be proved through inference from circumstantial evidence. For instance, electronic records may show that a plaintiff reviewed plan disclosures and acted in response. If a plaintiff’s denial of knowledge is “blatantly contradicted” by the factual record, the Supreme Court instructed trial courts to act accordingly.

The case provides succor to the plaintiffs’ bar because the Court could have found that mere delivery of plan disclosures triggers the three-year limitations period. While disclosures are not an automatic shield, they form an important part of the defense in most cases. To rebut claims of lack of knowledge, plans may wish to consider adopting electronic procedures to confirm that participants have reviewed disclosures, such as requiring participant acknowledgments.

Seyfarth Synopsis: The Director of HIPAA enforcement agency cautions that many covered entities are not meeting the basic HIPAA requirements and sees “low-hanging fruit” for enforcement activity.

The Director of the Office for Civil Rights at HHS, Roger Severino, recently gave an interview to Law360 about his office’s enforcement of the Health Insurance Portability and Accountability Act (“HIPAA”). Severino noted, “for enforcement purposes, there’s still a lot of low-hanging fruit.” He observed that many covered entities subject to HIPAA are not covering the basics of HIPAA compliance, such as conducting a comprehensive risk analysis and providing sufficient HIPAA training.

While enforcement activity in some federal government agencies has shifted under the current administration, enforcement of HIPAA has continued to be strong. Severino warned he “expect[s] that the number of cases brought to enforcement will also be fairly substantial this year.”

What can covered entities, such as employer group health plans, do?

First and foremost, make sure you have conducted (and documented) a thorough risk analysis. If it has been a while, you will want to dust it off and update it along with your full HIPAA security policies. Technology and the way we work evolves quickly. Covered entities are always adding new places where protected health information may be stored — new tablets here, a new copier there. Some of these changes may be subtle, but reviewing and updating the risk analysis may remind you of changes or help you identify areas that could impact HIPAA compliance and/or would be helpful to include in the risk analysis.

Reviewing OCR’s audit protocol provides good insight into the types of questions you’ll be asked in the event of a HIPAA audit. Reviewing that in advance can help you conduct your own internal audit to help gauge and improve HIPAA compliance.

Finally, one of the greatest protections a covered entity has against a HIPAA breach is its workforce. Make sure your workforce receives HIPAA training upon initial entry into a role with access to protected health information and that they also receive periodic refresher training. Practical examples as well as tailoring the training for the particular group can help make the HIPAA training more effective and, hopefully, will help avoid HIPAA breaches in the first place so you can avoid your organization being part of next year’s OCR statistics.

Seyfarth Synopsis: In a recent Chief Counsel Memorandum (“CCM”), the IRS stated that on audit, agents should pursue plan disqualification for a failure to produce a signed plan document. The IRS was responding to a 2018 Tax Court decision that held that the failure to produce the signed plan document would not subject the plan to disqualification upon the finding of creditable evidence that the document had been signed.

A core principle, if not “the” core principle, of the Code’s tax-qualification requirements is that a retirement plan must be a “written program . . . established and maintained by an employer” to provide for the retirement of eligible employees. Heck, that’s been the rule since before ERISA was even adopted. See Treasury Reg § 1.401(a)(2), originally adopted in 1956.

So what happens when an employer cannot produce the original signed plan document, or even a copy of that signed document? The IRS will tell us that the failure to satisfy a tax-qualification requirement results in plan disqualification: the IRS’s nuclear option. Blow it up! In fact, just recently the IRS published a chief counsel memo (CCM 2019-002) in which it sought to limit the application of a 2018 Tax Court ruling which excused the requirement to produce an executed plan document under the circumstances presented, adding that IRS agents should pursue plan disqualification if a signed plan document cannot be produced on audit.

For sure, the facts presented to the Tax Court were (or at least, should be) unique: the employer’s premises were flooded destroying plan records and the plan’s accountants had its computers seized by both the IRS and Department of Labor.

So what’s the take away from the CCM? Move your operations to a flood zone or work with a crooked accountant? Or, not worry about it and assume that should the plan ever be audited, your IRS examiner either won’t notice or care that you don’t have a signed copy? Both creative approaches, but of course not.

Rather, it would be easier to just make sure your qualified retirement plan documents are all timely signed by an authorized party and safely filed away (hard and electronic files). If you cannot locate a signed copy of a plan document, consider using the IRS voluntary correction program (VCP) to remedy the failure so that this never becomes an issue for you. The VCP fees are inexpensive when compared with the trauma of a threatened plan disqualification.

That said, if you choose to move to a flood zone, have I got a realtor for you!