The Washington Report
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January 12, 2022
Note to Subscribers
Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline.
Executive/Judicial
President to Deliver State of the Union March 1
President Biden is scheduled to deliver his first State of the Union address to Congress on March 1, 2022.
Supreme Court Hears Oral Arguments on COVID-19 Vaccine Mandates
On January 7, 2022, the Supreme Court heard oral arguments on a pair of federal COVID-19 vaccine mandates for private businesses and health care workers. The Washington Report will provide an update on the outcome of the Supreme Court decision when available.
COVID-19
HHS, CMS, and DOL Release FAQs on COVID-19 At-Home Tests; Insurance Companies and Group Health Plans Must Cover Cost Beginning January 15, 2022
On January 10, 2022, the Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Centers for Medicare and Medicaid Services (CMS) released guidance in the form of Frequently Asked Questions (FAQs) on at-home COVID-19 tests. The DOL released FAQs About Affordable Care Act Implementation (ACA) Part 51, Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Implementation. HHS and CMS released Frequently Asked Questions: How to get your At-Home Over-The-Counter COVID-19 Test for Free.
Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the Food and Drug Administration will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover eight free over-the-counter at-home tests per covered individual per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.
Please refer to the FAQs for other provisions and specific details.
The HHS news release is available here.
The HHS and CMS FAQs, How to get your At-Home Over-The-Counter COVID-19 Test for Free, are available here.
The DOL’s FAQs About ACA Part 51, Families First Coronavirus Response Act and Coronavirus Aid, Relief, and Economic Security Implementation, are available here.
OSHA Officially Withdraws Expired Healthcare ETS; Continues to Work on Permanent Version
On December 27, 2021, the Occupational Safety and Health Administration (OSHA) announced it was officially withdrawing the non-recordkeeping portions of its original COVID-19 health care emergency temporary standard (ETS) but stated the agency is continuing to focus attention on a permanent version of the ETS. On June 21, 2021, OSHA adopted a health care ETS in settings where they provide health care or health care support services. The ETS was set to expire in six months, which prompted the agency announcement. OSHA stated it “intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking.”
The Statement on the Status of the OSHA COVID-19 Healthcare ETS (and corresponding information) is available here.
Health
EBSA Publishes FAB on Enforcement Policy on Disclosure Requirements for Group Health Plan Service Providers
On December 30, 2021, the Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) published Field Assistance Bulletin (FAB) 2021-03, which announces a temporary enforcement policy regarding the new fee transparency disclosure requirements added to ERISA for persons providing brokerage services and consulting to ERISA group health plans.
According to the DOL, the FAB is intended to support the efforts of service providers who have been “working diligently to comply with the new statutory requirements by providing stakeholders with an assurance that the department will be focused on helping service providers comply with the new requirements, and will focus its enforcement activities on cases in which covered service providers do not act in accordance with a good faith, reasonable interpretation of the statute. The FAB also contains a set of questions and answers that, pending further guidance, are designed to explain the department’s view about what constitutes a good faith, reasonable interpretation of the statute with respect to several key issues that had been raised by stakeholders.”
The news release is available here.
FAB 2021-03 is available here.
HHS Releases Notice of Benefit and Payment Parameters for 2023; Publishes Premium Adjustment Percentage and Other Related Guidance
On December 28, 2021, the Department of Health and Human Services (HHS) released a proposed rule on the 2023 Notice of Benefit and Payment Parameters as required by the Affordable Care Act. The proposed rule includes proposed payment parameters and provisions related to the risk adjustment and risk-adjustment data validation programs, as well as proposed 2023 user fee rates for issuers offering qualified health plans (QHPs) through federally facilitated Exchanges and state-based Exchanges on the federal platform. This proposed rule also proposes requirements related to prohibiting discrimination based on sexual orientation and gender identity; guaranteed availability; the offering of QHP standardized options through Exchanges on the federal platform; requirements for agents, brokers, web-brokers, and issuers assisting consumers with enrollment through Exchanges that use the federal platform; verification standards related to employer-sponsored coverage; Exchange eligibility determinations during a benefit year; special enrollment period verification; cost-sharing requirements; Essential Health Benefits; actuarial value; QHP issuer quality improvement strategies; accounting for quality improvement activity expenses and provider incentives for medical loss ratio reporting and rebate calculation purposes; reenrollment; and requirements related to a new state Exchange improper payment measurement program. This proposed rule also seeks comments on how HHS can advance health equity through QHP certification standards and otherwise in the individual and group health insurance markets, and how HHS might address plan choice overload in the Exchanges. Comments on the proposed rule must be received by January 27, 2022.
On the same day, HHS also published the Premium Adjustment Percentage, Maximum Annual Limitation on Cost Sharing, Reduced Maximum Annual Limitation on Cost Sharing, and Required Contribution Percentage for the 2023 Benefit Year.
The news release is available here.
A Fact Sheet is available here.
The proposed rule is available here.
The Premium Adjustment Percentage, Maximum Annual Limitation on Cost Sharing, Reduced Maximum Annual Limitation on Cost Sharing, and Required Contribution Percentage for the 2023 Benefit Year is available here.
IRS Releases Guidance on Methodology for Calculating QPA in 2022 as Part of No Surprises Act
On December 28, 2021, the Internal Revenue Service (IRS) released Revenue Procedure 2022-11, which provides the indexing factor to be used by group health plans and health insurance issuers to calculate the qualifying payment amount (QPA) for items or services provided on or after January 1, 2022, and before January 1, 2023. Temporary regulations, jointly issued with HHS, the DOL, and the Office of Personnel Management in July 2021, provide the methodology for calculating the QPA, which is generally the plan’s median contracted rate for the same or similar item or service, indexed for inflation. Those temporary regulations provide that the Department of the Treasury and IRS will identify the annual indexing factor in guidance, rounded to 10 decimal places.
This guidance is in response to the No Surprises Act, which was signed into law on December 27, 2020, as part of the Consolidated Appropriations Act, 2021. The No Surprises Act is designed to protect patients from large “surprise” medical bills incurred from emergencies, air ambulance services, and from services and procedures that are performed by out-of-network providers at in-network facilities.
Revenue Procedure 2022-11 is available here.
IRS Releases Adjusted Applicable Dollar Amount for PCORTF Fee for Insured and Self-Insured Health Plans
On December 21, 2021, the IRS released Notice 2022-04, which provides that the adjusted applicable dollar amount that applies for determining the Patient-Centered Outcomes Research Trust Fund (PCORTF) fee for policy years and plan years ending on or after October 1, 2021, and before October 1, 2022, is equal to $2.79. Section 4375 imposes a fee on the issuer of a specified health insurance policy for each policy year ending after September 30, 2012, and before October 1, 2029. Section 4376 imposes a fee on the plan sponsor of an applicable self-insured health plan for each plan year ending after September 30, 2012, and before October 1, 2029. The fee imposed by Sections 4375 and 4376 (added to the Code by the Affordable Care Act) helps to fund the PCORTF and is calculated using the average number of lives covered under the policy or plan and the applicable dollar amount for that policy year or plan year.
For additional information, please see the Aon bulletin, IRS Issues Adjusted PCORI Fee for Plan Sponsors, found in the Publications section of this newsletter.
IRS Notice 2022-04 is available here.
Retirement
IRS Releases 2022 Covered Compensation Tables
On January 5, 2022, the Internal Revenue Service (IRS) released Revenue Ruling 2022-02, which provides the compensation tables for calculating certain benefits under qualified pension, profit-sharing, and stock bonus plans for plan year 2022. For purposes of determining covered compensation for 2022, the taxable wage base is $147,000.
IRS Revenue Ruling 2022-02 is available here.
Other HR/Employment
EBSA, IRS, and PBGC Release Information Copies of the 2021 Form 5500 Series Annual Return/Report and Related Instructions
On December 29, 2021, the Department of Labor’s Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released informational copies of the 2021 Form 5500 Annual Return/Report and related instructions — including the Form 5500-SF. The IRS also released the 2021 Form 5500-EZ and instructions, which are posted on the EBSA website. Pension and welfare benefit plans required to file an annual return/report regarding their financial conditions, investments, and operations, generally satisfy that requirement by filing the appropriate Form 5500, including any required schedules and attachments, under the all-electronic ERISA Filing Acceptance System II.
The Changes to Note section of the 2021 instructions for each of the forms highlights important modifications to the forms, schedules and instructions. These changes include a limited number of updates to the instructions to implement certain annual reporting changes related to the Setting Every Community Up for Retirement Enhancement (SECURE) Act amendments of ERISA and the Internal Revenue Code that apply to multiple-employer defined contribution pension plans (including pooled employer plans). Proposals for those 2021 updates were included in a September 2021 Federal Register Notice and finalized in a Federal Register Notice published on December 29, 2021. The September 2021 notice included a broader range of form and instruction changes proposed for the 2022 reporting year, including changes implementing a consolidated filing option for certain groups of defined contribution retirement plans as directed by Section 202 of the SECURE Act. Those broader proposed changes are not included in the 2021 instructions and will be the subject of one or more separate and later final notices. Please refer to the EBSA and IRS guidance for specific details regarding all changes and updates.
The news release is available here.
Information copies of the forms, schedules, and instructions are on the EBSA website, available here.
The EBSA Federal Register Notice is available here.
Aon Publications
2022 Limits for Benefit Plans
Each year, the U.S. government adjusts the limits for retirement plans, Social Security, Medicare, and other benefit programs to reflect price and wage inflation and changes in the law. As a result, employee benefit plans must be adapted annually to accommodate the new limits. All of the numbers in this report are official unless otherwise indicated.
The 2022 Limits for Benefit Plans bulletin is available here.
IRS Permanently Extends Due Date for Sending Form 1095-C to Individuals
The Internal Revenue Service (IRS) published a Proposed Rule in the Federal Register which permanently provides employers and insurers a 30-day extension to furnish Forms 1095-B and 1095-C to individuals.
For the 2021 reporting year and all subsequent years, the federal deadline for furnishing the Form 1095-C to individuals is March 2, except for leap years (in which case the deadline is March 1) and years in which the deadline falls on a weekend. While the Proposed Rule is not final, the IRS has indicated that employers may rely upon the Proposed Rule until it is finalized.
The Aon bulletin is available here.
IRS Issues Adjusted PCORI Fee for Plan Sponsors
On December 21, 2021, the IRS issued Notice 2022-04 announcing the applicable Patient-Centered Outcomes Research Institute (PCORI) fee for plan years that end on or after October 1, 2021, and before October 1, 2022 (e.g., the applicable PCORI fee for 2021 calendar year plans).
The Aon bulletin is available here.