KMK Law Management Rights Blog

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 ...

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 ...

The United States Supreme Court recently agreed to hear two ERISA class-action cases next term that were decided by the lower courts in favor of plan participants. First, the Supreme Court agreed to review Retirement Plans Committee of IBM et al. v. Larry W. Jander, an employer stock-drop case from the Second Circuit.  IBM workers claimed that IBM’s Retirement Plans Committee breached its fiduciary duty by allowing workers’ retirement funds to be invested in artificially-inflated IBM stock. The Second Circuit applied the “more harm than good” standard that was set forth ...

In another recent Revenue Procedure (Rev. Proc. 2019-19), the Employee Plans Compliance Resolution System (“EPCRS”) program was expanded to permit the correction of certain additional failures through the Self-Correction Program (“SCP”). Before this new ruling, the ability to use SCP was more limited The expanded EPCRS provides the following:

• Plan sponsors can now self-correct certain loan defaults without having to report the failure as a deemed taxable distribution to the participant. A correction may be made by either reamortizing the outstanding loan balance or ...

In a recent Revenue Procedure (Rev. Proc. 2019-20), the IRS announced the limited expansion of the determination letter program for individually designed plans.  The program is limited to (1) certain cash balance plans and (2) retirement plans that merge as the result of a corporate transaction.  The window for determination letter submissions for eligible cash balance plans will run from September 1, 2019 to August 31, 2020.  Submissions for merged plans will begin on September 1, 2019 and will be ongoing.

This opportunity is especially important for cash balance plans since the IRS ...