|November was a busy month in the employee benefits world. President Trump nominated Alex Azar for Secretary of the U.S. Department of Health and Human Services (HHS).
The Internal Revenue Service (IRS) updated its guidance on employer shared responsibility penalty assessments and released guidance on Qualified Small Employer Health Reimbursement Arrangement (QSE HRA) implementation and administration. The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), the IRS, and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2017 Form 5500 annual return/report and related instructions.
The U.S. House Republicans introduced a tax reform bill called the “Tax Cuts and Jobs Act” that, if passed, would impact multiple aspects of the tax code. The DOL issued a final rule to delay the applicability date of its rule that amends claims procedure requirements of ERISA-covered employee benefit plans that provide disability benefits.
The DOL released guidance for group health plans impacted by Hurricane Maria and California wildfires. The DOL and IRS jointly announced deadline extensions for those affected by Hurricane Maria. The IRS provided additional guidance on leave-based donation programs’ tax treatment.
UBA released three new advisors in November:
UBA updated existing guidance:
IRS Updates Guidance on Play-or-Pay Penalty Assessments
To comply with the Patient Protection and Affordable Care Act (ACA), “large” employers must offer their full-time employees health coverage, or pay one of two employer shared responsibility / play-or-pay penalties. The IRS determines the penalty each calendar year after employees have filed their federal tax returns.
The IRS recently indicated on its “Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act” webpage that, in late 2017, it plans to issue Letter 226J to inform large employers of their potential liability for an employer shared responsibility payment for the 2015 calendar year.
IRS Releases Guidance on QSE HRA Implementation
In December 2016, the 21st Century Cures Act (Cures Act) became law. The Cures Act allows certain small employers to reimburse individual health coverage premiums up to a dollar limit through health reimbursement arrangements called “Qualified Small Employer Health Reimbursement Arrangements” (QSE HRAs). Although the provision went into effect on January 1, 2017, the IRS did not issue detailed guidance regarding QSE HRA implementation at that time.
On October 31, 2017, the IRS released Notice 2017-67, providing guidance on the implementation and administration of QSE HRAs.
Advance Informational Copies of 2017 Form 5500 Annual Return/Report
The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) released advance informational copies of the 2017 Form 5500 annual return/report and related instructions.
Specifically, the instructions highlight the following modifications to the forms, schedules, and instructions:
Be aware that the advance copies of the 2017 Form 5500 are for informational purposes only and cannot be used to file a 2017 Form 5500 annual return/report.
The U.S. House Introduces Tax Reform Bill
The U.S. House Republicans introduced a tax reform bill (H.R.1-115th Congress) called the “Tax Cuts and Jobs Act” that, if passed, would impact multiple aspects of the tax code. Many of these changes relate to employee benefit plans, particularly in relation to certain fringe benefits.
DOL Delays Disability Claims Procedure Regulations’ Applicability Date
The U.S. Department of Labor (DOL) issued a final rule to delay the applicability date of its rule that amends the claims procedure requirements of ERISA-covered employee benefit plans that provide disability benefits. The DOL is delaying the applicability date from January 1, 2018, to April 1, 2018. The DOL’s Fact Sheet contains a summary of the regulation’s requirements.
DOL Provides Guidance for Group Health Plans Impacted by Hurricane Maria and California Wildfires
The DOL issued a news release to recognize that plan participants and beneficiaries may encounter problems due to Hurricane Maria and the California Wildfires. The DOL advises plan fiduciaries to make reasonable accommodations to prevent workers’ loss of benefits and to take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.
The DOL also acknowledged that there may be instances when full and timely compliance by group health plans may not be possible due to physical disruption to a plan’s principal place of business. The DOL’s enforcement approach will emphasize compliance assistance, including grace periods and other relief where appropriate.
DOL and IRS Provides Deadline Extensions for Those Affected by Hurricane Maria
The DOL and IRS announced deadline extensions to provide plan participants, beneficiaries, and employers affected by Hurricane Maria with additional time to make health coverage and benefits decisions.
Under the extension, group health plans have additional time to comply with certain deadlines affecting COBRA continuation coverage, Health Insurance Portability and Accountability Act of 1996 (HIPAA) special enrollment, claims for benefits, appeals of denied claims, and external review of certain claims. Under the extension, participants and beneficiaries have additional time to make claims for benefits and appeal denied claims.
IRS Provides Additional Guidance on Leave-Based Donation Programs’ Tax Treatment
In recent months, the IRS provided guidance for employers who adopt leave-based donation programs to provide charitable relief for victims of Hurricane and Tropical Storms Irma and Maria. This month, the IRS issued Notice 2017-70 which extends the guidance to employers’ programs adopted for the relief of victims of the California wildfires.
These leave-based donation programs allow employees to forgo vacation, sick, or personal leave in exchange for cash payments that the employer will make to charitable organizations described under Internal Revenue Code Section 170(c).
The employer’s cash payments will not constitute gross income or wages of the employees if paid before January 1, 2019, to the Section 170(c) charitable organizations for the relief of victims of the California wildfires. Employers do not need to include these payments in Box 1, 3, or 5 of an employee’s Form W-2.
Question of the Month
Q. Under the ACA, what employers must report information on Form W-2 and what information must be reported?
A. The ACA requires employers to report the cost of coverage under an employer-sponsored group health plan. Reporting the cost of health care coverage on Form W-2 does not mean that the coverage is taxable.
Employers that provide “applicable employer-sponsored coverage” under a group health plan are subject to the reporting requirement. This includes businesses, tax-exempt organizations, and federal, state and local government entities (except with respect to plans maintained primarily for members of the military and their families). Federally recognized Indian tribal governments are not subject to this requirement.
Employers that are subject to this requirement should report the value of the health care coverage in Box 12 of Form W-2, with Code DD to identify the amount. There is no reporting on Form W-3 of the total of these amounts for all the employer’s employees.
In general, the amount reported should include both the portion paid by the employer and the portion paid by the employee. See the chart below from the IRS’ webpage and its questions and answers for more information.
The chart below illustrates the types of coverage that employers must report on Form W-2. Certain items are listed as “optional” based on transition relief provided by Notice 2012-9 (restating and clarifying Notice 2011-28). Future guidance may revise reporting requirements but will not be applicable until the tax year beginning at least six months after the date of issuance of such guidance.
Form W-2 Reporting of Employer-Sponsored Health Coverage