KMK Law Management Rights Blog

On October 22, 2019, the Department of Labor issued proposed rules intended to relax the current (and, in many respects, outdated) electronic disclosure rules. The proposed rules offer additional e-disclosure options and have the potential to save ERISA plans significant time and money. Notably, the proposed rule includes a new, voluntary safe harbor which would allow employers to make retirement plan disclosures via website, subject to certain requirements such as participant notifications and specific website standards. The rule would permit default electronic delivery ...

Has your employee sought premium tax credits (PTCs) for coverage under a health insurance marketplace? If so, this could be an opportunity for you to reduce your ACA penalty risk. When an employer receives notice from a health insurance marketplace that an individual is eligible for PTCs, the best course of action is to read the notice carefully and ask plenty of questions: What is the deadline to appeal? Is this individual still an employee? Are you an applicable large employer under the ACA? Is the employee full-time or part-time?  Was affordable, minimum value coverage offered to ...

In our August Monthly Minute, we touched on the precarious future of drug accumulator programs in light of recently released guidance that appeared to significantly limit their application and usefulness from a cost-management perspective.  Some of those fears have just been put to rest – for the time being. On August 26, 2019, new guidance was released that acknowledged certain ambiguities about the treatment of drug manufacturer’s coupons in circumstances other than in which there is a medically appropriate generic equivalent available. Although the new ...

On September 19, 2019, the final regulations were published making 401(k) hardships easier for participants. Although there are no major departures from last year’s proposed regulations, plan administrators will want to be aware of several key updates, including –

• The list of safe harbor expenses that are considered to satisfy the “immediate and heavy financial need” threshold has been expanded: the home casualty hardship reason is not limited by IRC 165(h)(5) and need not be in a federally declared disaster area, and expenses incurred as a result of certain federally ...

The DOL recently released a final rule intended to provide small businesses with greater access to quality and affordable retirement plans.  The new rule, effective September 30, 2019, clarifies that a small employer group (association) -- such as employers in the same locale or particular industry/trade -- can band together and offer a defined contribution retirement plan to their employees through an Association Retirement Plan (“ARP”).  This significantly relaxes the “commonality” standard previously required for separate employers to offer a combined retirement ...

What tax treatment applies when a participant fails to cash a distribution check?  In Rev. Rul. 2019-19, the IRS recently confirmed that the distribution is taxable in the year distributed, whether or not the check is cashed.  Thus, when a distribution is made to an individual and the individual could cash the check, the amount is included in income (provided that no exception to income inclusion applies), subject to withholding, and the distribution must be reported on a 1099-R for the year of distribution.  What’s more, the result is the same whether the individual keeps the ...

Accumulator programs have become a popular utilization management technique that enables health plans to exclude the cost of drug manufacturer coupons or copay assistance cards when calculating a participant’s out of pocket costs. In essence, these programs allow health plans to more accurately determine a participant’s true out of pocket costs, as opposed to amounts that are subsidized by drug companies.  However, in recently released regulations (effective 2020), HHS appears to have limited the use of such programs to circumstances in which there is also an available and ...

By July 31, 2019, health insurance policy issuers and sponsors of self-insured health plans must report and pay the annual PCORI fee on Form 720. The good news is that the PCORI fee is only effective for policy and plan years ending after Sept. 30, 2012, and before Oct. 1, 2019, meaning that the July 31, 2019 payment will be the last PCORI payment for plan years ending in October, November and December 2018. (A July 2020 PCORI payment will still be due for those plans with plan years ending from January 2019 through September 2019.) The amount of the PCORI fee is equal to the average number of ...

Are you responsible for the actions of the prior members of the retirement plan committee? Fiduciaries have a duty to remedy the continuing effect of their predecessors’ breach if they know of the breach. But what type of knowledge is required for liability to attach? In Fuller v. SunTrust Banks, Inc., a federal court evaluated whether actual or constructive knowledge is sufficient. The court found that successor fiduciaries must have actual knowledge of their predecessors’ breach to be held liable. In so finding, the court rejected plaintiffs’ reliance on ...

Effective July 17, 2019, the IRS expanded the list of preventive care benefits permitted to be provided by an HDHP without a deductible, as described in IRS Notice 2019-45. The expanded list is in response to President Trump’s Executive Order 13877 which called for guidance to expand the ability of patients to select HDHPs used alongside HSAs that cover low-cost preventive care to help maintain health status for individuals with chronic conditions. The new guidance signifies a departure from prior guidance which generally did not treat benefits intended to treat existing ...