Upcoming key compliance deadlines and reminders for fourth quarter 2021

This week, much of the country is feeling autumn’s first chill and the long days of summer are officially behind us. As many employer plan sponsors turn their eyes toward upcoming open enrollment periods, a number of welfare plan reporting and disclosure deadlines also loom for calendar year and non-calendar year plans between now and the turn of the calendar to 2022.

We’ve continued, for this fourth quarter reminder, to separate our entries into three categories: standard federal deadlines, select state and local deadlines, and pandemic-related reminders. Within each category, we follow our typical chronological approach. Deadlines may or may not be applicable to your group depending on employer and plan characteristics.

Here are potential action items for the fourth calendar quarter (through Dec. 31, 2021).

STATE FEDERAL DEADLINES

Oct. 3 - Distribute notice of Qualifying Small Employer Health Reimbursement Arrangement (QSEHRA) For employers offering calendar year QSEHRAs

  • Applies to small employers (not subject to the ACA employer mandate) who sponsor a QSEHRA, in lieu of any other group medical coverage, that reimburses employees for individual market medical insurance premiums on a tax-free basis.

  • The notice must be provided to each "eligible employee" regardless of enrollment status and must include the employee's maximum HRA benefit for the year, among other information. The notice is due at least 90 days before the beginning of the new plan year. The deadline above is for employees who are eligible for the upcoming calendar year; for those who gain eligibility at a later date, the notice should be provided no later than the date the employee gains eligibility to participate in the QSEHRA.

  • A model notice is available from your Lockton account service team.

Oct. 3 - Distribute notice of Individual Coverage Health Reimbursement Arrangement (ICHRA) For employers offering calendar year ICHRAs

  • Applies to employers of any size who offer an ICHRA, in lieu of any other traditional group medical coverage, that reimburses employees for individual market medical insurance premiums or Medicare premiums.

  • The notice must be provided to each "eligible employee" regardless of enrollment status. It must include information about the benefits provided by the ICHRA and the effect of the ICHRA coverage on the ability to qualify for federal subsidies in an individual market.

  • The notice is due, generally speaking, at least 90 days before the beginning of the new plan year. The deadline above is for employees who are eligible for the upcoming calendar year; for those who gain eligibility at a later date, the notice should be provided no later than the date the employee gains eligibility to participate in the ICHRA.

  • A model notice is available from your Lockton account service team.

Oct. 4 - Submit Medicare Part D subsidy application to Centers for Medicare & Medicaid Services (CMS) to obtain Part D subsidy for 2022 plan year For calendar year retiree drug plans

  • Applies to ERISA and non-ERISA plans seeking federal subsidies for providing retiree drug coverage. Generally, the application deadline is 90 days prior to the beginning of the plan year. CMS has set the deadline this year as Oct. 4, 2021, for plan years beginning Jan. 1, 2022.

  • An extension of approximately 30 days can be requested from CMS prior to the application deadline.

Oct. 14 - Distribute notices of creditable and/or non-creditable coverage If not provided in the prior 12 months

  • Provide to employees, retirees and dependents enrolled in Medicare and also enrolled (or seeking enrollment in) the employer's group medical plan.

  • Most employers supply these notices at open enrollment, and such notices are deemed given for the next 12 months unless there's a material change in the creditable or non creditable nature of the coverage. Thus, if distributed in enrollment packets during the prior 12 months (and there's no material change in the Rx coverage), the mid-October deadline may be ignored.

  • These notices may be combined with other notices but must be "conspicuous." There must be a text box atop the packet noting in 14-point font that the packet includes a Medicare Part D notice.

  • The notice may be mailed or hand-delivered; electronic distribution is possible, but special consent rules apply.

Oct. 15 - File Form 5500 for the prior calendar year plan year, if filing under an extension from a July 31 deadline

  • Applies to ERISA plans.

  • Form 5500 extensions are available by filing a Form 5558 with the DOL on or before the filing’s initial due date. Calendar year plans with a July 31, 2021, deadline for 2020 Forms 5500 and that obtained a 2-1/2 month extension via Form 5558 should file by Oct. 15.

Dec. 15 - Distribute summary annual reports (SARs), if Form 5500 for a calendar year plan was filed under an extension.

  • A summary of the plan’s financial performance for the previous plan year, as reflected in the plan’s Form 5500 for that plan year, must be sent to participating employees, former employees, COBRA beneficiaries, and Qualified Medical Child Support Order (QMCSO) recipients. The SAR must be provided within two months after the Form 5500 filing deadline.

  • The SAR requirement does not apply to self-funded plans that pay benefits exclusively from the employer’s general assets, even if those assets include employee contributions, as long as the contributions are made through a Section 125 cafeteria plan.

  • SAR language is rather standard, and the disclosures may be made according to DOL’s requirements for electronic disclosure, if desired.

Dec. 31 - Self-insured state and local government health plans submit optional opt-out election to CMS For calendar year plans, describing election to opt out of certain requirements

  • Sponsors of self-insured plans maintained by non-federal government entities may opt out of the Mental Health Parity Act, Newborns and Mothers Health Protection Act, Women's Health and Cancer Rights Act, and Michelle's Law.

  • The plan must provide notice of the opt out to participants at the time of enrollment, and on an annual basis, prior to the beginning of each plan year.

  • The opt-out election is made online and includes specific requirements. The CMS website and your Lockton account team have model notice language.

Dec. 31 - Distribute annual Women's Health and Cancer Rights Act notice For calendar year plans

  • Applies to ERISA and non-ERISA plans. Self-insured state and local governmental plans may opt out.

  • Notice must be provided to participants (employees and retirees), COBRA and other beneficiaries receiving benefits and alternate recipients under QMCSOs. This notice is typically distributed at initial enrollment and then annually prior to each plan year.

  • Including this notice in the annual enrollment packet is appropriate and typical as long as the notice is "prominent." Electronic disclosure is permitted in accordance with DOL requirements.

Dec. 31 - Distribute notice of premium assistance under Medicaid or the Children's Health Insurance Program (CHIP) For calendar year plans

  • Applies to ERISA and non-ERISA plans.

  • The notice must be provided to each employee, regardless of eligibility or enrollment status, and is best provided as a separate document, even if offered with enrollment materials. It should be provided by the last day of the plan year preceding the year to which the notice relates.

  • A model notice is available through your Lockton account service team and is updated periodically by federal authorities.

SELECT STATE AND LOCAL DEADLINES

Oct. 30 - Make San Francisco HCSO contributions for prior calendar quarter

  • For employers subject to the San Francisco Healthcare Security Ordinance.

  • Quarterly contributions, if due for the quarter ending Sept. 30, are due by Oct. 30. Self-funded employers have the option of utilizing an annual true-up method in lieu of quarterly contributions. The true-up contributions are due in February of each year for the prior year.

Nov. 15 - Dec. 15 - File Massachusetts Health Insurance Reporting Disclosure (HIRD) form

  • Applies to any employer that reported six or more employees in any Massachusetts unemployment wage report during the past 12 months. The employer must file the HIRD form through the Massachusetts Department of Revenue web portal, MassTaxConnect.

  • The disclosure is made during the filing period of Nov. 15 – Dec. 15, annually.

PANDEMIC-RELATED REMINDERS – OUTBREAK PERIOD REQUIREMENTS

In April 2020, and again in February 2021, federal authorities issued guidance under which welfare benefit plans are required to suspend the running of certain action periods related to COBRA elections and premium payments, HIPAA special enrollment requests, and submission of claims, appeals and requests for third-party review of denied medical claims. Generally, any given action period (e.g., the 60 days a COBRA qualified beneficiary has to elect COBRA after the plan sends the COBRA election packet) is suspended until the earlier of:

  • The date that is 12 months after the date the suspension began (although it is unclear whether, with respect to COBRA premium payment due dates for example, each monthly due date is extended for a year after the extension applicable to the month before).

  • The date that is 60 days after the president rescinds the presidential national emergency declaration related to COVID-19. That declaration is still in effect.

The following disclosures relate to this outbreak period guidance.

As soon as practicable, if required - Re-issue or supplement notices or disclosures regarding certain COBRA deadlines, HIPAA special enrollment request deadlines, and claims/appeals submission deadlines

  • Federal “outbreak period” guidance indicates that plan disclosures issued prior to or during the pandemic may need to be reissued or amended if such disclosures failed to provide accurate information regarding the time in which participants and beneficiaries are required to take action, specifically if the prior disclosures did not adequately describe the effect of federal “outbreak period” guidance on COBRA, HIPAA special enrollment and claims/appeals action periods and deadlines.

  • NOTE: While federal authorities made this admonition in their February 2021 guidance, it will be difficult to accomplish on account of vagaries in that guidance, particularly with respect to how to calculate the date on which the running of the relevant action periods begins again. Lockton has prepared a model notice for consideration by its clients. Contact your account service team.

As soon as practicable, if required - Alert individuals to the impending loss of protections, benefits or rights under a plan due to expiration of “outbreak period” protections, and provide notice of other healthcare coverage options, such as ACA marketplaces

Federal “outbreak period” guidance recommends where plan fiduciaries know, or should reasonably know, that the end of the relief provided under that guidance may cause a participant or beneficiary to lose protections, benefits or rights under the plan, that the administrator or other fiduciary should consider affirmatively sending a notice regarding the end of the individual’s relief period and reminding the individual of the availability of healthcare coverage in an ACA marketplace. Including with such notice, the standard federal marketplace notice, which typically is provided within 14 days of new hire, should be adequate for this latter purpose.

Various times - Adjust COBRA election and premium payment, HIPAA special enrollment request, and plan claim, appeal and request for third-party review due dates

  • To accommodate and comply with the federal “outbreak period” guidance, plan administrators will need to adjust the running of relevant action periods and deadlines with respect to affected participants and beneficiaries.

  • See our original alert (opens a new window) from April 2020 and our updated alert (opens a new window) from March 2021 for more information.

Various times - Provide ERISA-related notices and disclosures

  • Federal “outbreak period” guidance gave plan administrators leeway, where that leeway is necessary, to provide ERISA-related notices and disclosures (e.g., COBRA election packets) to plan participants and beneficiaries later than would otherwise be required, as long as the administrator provides the notices and disclosures as soon as practicable. Administrators are also granted wider latitude to provide these notices and disclosures via email or a continuously available website. See our alert (opens a new window) for more information.

  • It seems unlikely, this late into the pandemic, that tardy notices and disclosures will be acceptable to federal regulators.

Note: Generally, when a filing deadline or notice obligation falls on a Saturday, Sunday or federal holiday, the filing or notice may be filed or distributed on the next day that is not a Saturday, Sunday or federal holiday. This general rule may or may not hold true for state-imposed deadlines.

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Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's Compliance Services group are not privileged under the attorney-client privilege.

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