Employer health plans must pay the cost of a COVID-19 vaccine

As many have likely heard, multiple COVID-19 vaccine candidates have rapidly reached the final stages of development and are showing extraordinary effectiveness. The vaccines are beginning to be submitted to the FDA for emergency approval before hitting the market. This means that employers need to start thinking about how this will affect their workplace benefit plans now.

As my colleague Charlie Plumb recently wrote, employers are generally permitted to implement mandatory vaccine policies that require employees to be vaccinated before returning to the workplace. Assuming no disability or religious exception applies, the next question is this: Who has to pay for it?

Surprisingly, the answer is pretty simple: Employer-sponsored group health plans (whether fully- or self-insured) will be required to pay the full cost of the vaccine for employees covered under the plan with no cost-sharing (copay, coinsurance, deductible) to the employee.

A. GENERAL PREVENTIVE SERVICE RULES

As employee benefits professionals and insiders are inevitably aware, the Affordable Care Act (the “ACA”) already requires group health plans and insurers to cover certain “preventive care” items with no cost-sharing (also called first-dollar coverage), such as the flu vaccine. These items are generally listed on the HealthCare.gov website.

The typical process for an item to be classified as a “preventive service” starts with certain governmental groups, such as the CDC or the United States Preventive Services Task Force making a “recommendation” (although it is not as much a recommendation as a requirement) that an item should be classified as a preventive service. The item must then receive first-dollar coverage under a group health plan or policy starting with the first plan year that begins one year after the date the recommendation is made. Also, first-dollar coverage is generally only required when participants receive care from an in-network provider.

B. ACCELERATED COVERAGE TIMELINE FOR COVID-19 VACCINE

Because of the ensuing pandemic, Congress found this timeline unacceptable. The CARES Act modified the preventive service rules for the COVID-19 vaccine in early March before any sign of a vaccine was in sight. The CARES Act requires group health plans to provide first-dollar coverage of COVID-19 vaccines within 15 business days after the vaccine receives an “A” or “B” rating from the United States Preventive Services Task Force or receives a recommendation from the Advisory Committee on Immunization Practices of the CDC.

Just to reemphasize, plans generally have at least a year after a new item is added to the preventive services list to provide first-dollar coverage. But now, first-dollar coverage for a COVID-19 vaccine is required within 15 business days after the applicable governmental recommendations are made. Therefore, plan sponsors need to keep an eye out for these recommendations to ensure that their health plans are being administered properly (and are properly amended to reflect this requirement).

C. FULL COVERAGE REQUIRED FOR OUT-OF-NETWORK VACCINE

Also distinct from the traditional ACA preventive care rules, group health plans and insurers must pay the full cost of COVID-19 vaccines regardless of whether administered in- or out-of-network. In a joint interim final rule published by the Departments of Treasury, Labor, and Health and Human Services, plans and insurers are required to pay out-of-network providers a “reasonable” reimbursement rate in order to provide a “meaningful” benefit to participants and, presumably, to entice enough providers to administer the vaccine. A reasonable rate is generally the prevailing market rate, the Departments say. The Departments deem the amount paid under Medicare to be reasonable. Finally, providers who are participating in the CDC COVID-19 Vaccination Program are prohibited from balance billing (also known as surprise billing) vaccine recipients.

D. THE BOTTOM LINE

The big implication of these rules is that employers will have to bear the full cost of the vaccine for each employee covered under its health plan. To the extent an employer is going to mandate employees to become vaccinated before returning to the workplace, employers will have to weigh the cost of requiring employees to become vaccinated (when some employees might not have gotten the vaccine otherwise) against the costs of possible continued loss in productivity due to an ill workforce or employees working from home.

IRS Announces Relief for Certain Form 1094/1095 Reporting Requirements

In a similar move as in previous years, the IRS has issued relief from certain Form 1094-C and 1095-C reporting requirements under the Affordable Care Act (the “ACA”) relating to employee health plans, as well as relief from certain reporting-related penalties.

As a refresher, the ACA generally requires four forms to be produced each year, and the names are anything but intuitive:

  • Form 1094-B: This is essentially a transmittal form used by insurance carriers to report the individual statements (Form 1095-B) to the IRS.
  • Form 1095-B: This form is used to report certain statutorily-required information to the employee under a fully-insured policy about his or her coverage.
  • Form 1094-C: This is used by applicable large employers (“ALEs”) to report whether the employer offered minimum essential coverage and to transmit the employee statements (Form 1095-C) to the IRS.
  • Form 1095-C: Finally, this form is used by ALEs to report certain statutory-required information to employees about their employer-sponsored health coverage.

Which form your plan would be required to file or furnish depends on whether you are an ALE., and how you fill out the form and whether you offer fully-insured or self-insured coverage. Large employers who are self-insured are typically going to use just Forms 1094-C- and 1095-C.

Extended Deadline for Participant Statements:

The IRS has extended the deadline for furnishing Forms 1095-B and 1095-C to individuals. The typical deadline to report 2019 plan information is January 31, 2021. However, the new relief extends the deadline to March 2, 2021. The extension is automatic, and the IRS has indicated that no further extensions will be granted, and it will not respond to such requests.

No Extension for IRS Filings:

Be aware that this extension does not apply to the 1094-B and 1094-C filings with the IRS. The deadline for submitting these filings to the IRS will remain March 1, 2021 (since the original due date of February 28 falls on a Sunday), for paper filings and March 31, 2021, for those filing electronically. However, while the automatic extension does not apply to these deadlines, filers may still request an extension from the IRS.

Penalty Relief:

Recognizing that the main purpose of Forms 1095-B and 1095-C was to allow an individual to compute his or her tax liability relating to the individual mandate, and because the individual mandate has been reduced to zero, the IRS has granted relief from furnishing certain documents to individuals.

The IRS indicated that it will not assess penalties for failure to furnish a Form 1095-B if two conditions are met. First, the reporting entity must post a prominent notice on its website stating that individuals may receive a copy of their 2020 Form 1095-B upon request, along with an email address, physical address, and phone number. Second, the reporting entity must furnish the 2020 Form 1095-B to the responsible individual within 30 days of receipt of the request. The statements may be furnished electronically if certain additional requirements are met.

The same reporting relief does not extend to ALEs who are required to furnish Form 1095-C. This form must continue to be furnished to full-time employees, and penalties will continue to be assessed for a failure to furnish Form 1095-C. However, the relief does generally apply to furnishing the Form 1095-C to participants who were not full-time employees for any month of 2019 if the requirements above are met. This would typically include part-time employees, COBRA continuees, or retirees.

Note that while these requirements for furnishing the 1095-B and 1095-C to individuals has been modified, these forms must still be transmitted to the IRS along with their Form 1094 counterparts.

Good-Faith Relief for Errors in Reporting:

In the final piece of good news from the IRS, it announced relief from penalties for incorrect or incomplete information on any of these forms. This relief applies to both missing and inaccurate taxpayer identification numbers and birthdays, as well as other required information.

The reporting entity must be able to show that it made a good faith effort to comply with the reporting requirements. A successful showing of good faith will show that an employer made reasonable efforts to prepare for the reporting requirements and the furnishing to employees, such as gathering and transmitting the necessary information to the person preparing the forms.

However, the relief does not apply to reporting entities that completely fail to file or furnish the forms at all.

Finally, and importantly, the IRS has indicated that this will be the last year that it will provide this good faith reporting relief.

New IRS Guidance on Suspension of RMDs

And just as we thought that the new coronavirus guidance was beginning to slow down, the IRS proved us wrong.

On June 23, 2020, the IRS issued new guidance on the waiver of required minimum distributions (“RMDs”) from certain qualified retirement plans.

I. General Background

As a refresher, section 401(a)(9) of the Internal Revenue Code requires certain qualified retirement plans, including 401(k) plans, to make RMDs starting on the employee’s required beginning date. Back in December, the SECURE Act made a change to when RMDs are required to be made:

OLD RULE: Under the old rule, participants were generally required to start taking RMDs from a retirement plan by April 1 following the later of (a) the calendar year they reach age 70 ½; or (b) the calendar year they retire.

NEW RULE: Under the new SECURE Act rule, for people who attain age 70 ½ after December 31, 2019, the age for RMDs increases to 72. Individuals who attain 70 ½ on or before December 31, 2019 are not affected (i.e., the old rule continues to apply).

II. CARES Act Relief for RMDs

As you might remember, on March 27, 2020, the CARES Act waived RMDs otherwise required in 2020. However, because the CARES Act was not enacted until March 27 of this year, some people who took their RMD earlier in the year may have missed the boat on the waiver. However, as we were expecting, on June 23 the IRS issued guidance to provide relief for those individuals.

In the June 23 guidance, the IRS permits anyone who already who took an RMD in 2020 from certain plans to roll those funds back into the plan. Under the normal rules, rollovers must be made within 60 days from the date of a distribution, but last week’s new guidance extends this 60-day window for any RMD already taken this year to August 31, 2020. For example, if a participant received a single-sum distribution in January 2020, part of which was treated as ineligible for rollover because it was considered an RMD, that participant will now have until August 31, 2020 to roll over that part of the distribution. You probably should notify anyone who falls into this category of this extended deadline.

The waiver applies to the typical defined contribution plans, such as 401(k) and 403(b) plans, as well as IRAs. The relief does not apply to defined benefit plans.

The notice also provides rollover relief for additional payments that would not otherwise be eligible for rollover:

• Distributions to a plan participant paid in 2020 (or paid in 2021 for the 2020 calendar year in the case of an employee who has a required beginning date of April 1, 2021) if the payments would have been RMDs in 2020 (or for 2020) if it weren’t for the 2020 waiver.
• For a plan participant with a required beginning date of April 1, 2021, distributions that are paid in 2021 that would have been an RMD for 2021 but for the RMD waiver.

Therefore, the guidance waives the RMD for 2020 even if the employee’s required beginning date is April 1, 2021. For example, if an employee attained age 70 ½ before January 1, 2020, and retires in the 2020 calendar year, that employee’s required beginning date is April 1, 2021. Because of the CARES Act, the employee is not required to receive an RMD for 2020 before April 1, 2021 but nonetheless must still receive the RMD for the 2021 calendar year by December 31, 2021. If the employee receives a distribution during 2021, then that distribution is treated as an RMD for the 2021 calendar year to the extent the total RMD for 2021 has not been satisfied even if the distribution is made on or before April 1, 2021 (and, accordingly, is not eligible for rollover). However, because of the June 23 guidance, once the RMD for 2021 has been satisfied, any subsequent amounts distributed in 2021 that would otherwise not be eligible rollover distributions may be rolled over consistent with the rules provided in the guidance.