DOL

The Department of Labor (DOL) has issued Compliance Assistance Release 2022-01 pertaining to the use of cryptocurrencies as plan investments in 401(k) plans. In it, the DOL cautions fiduciaries to exercise extreme care before considering the addition of cryptocurrency options in a plan’s investment menu and elaborates that the failure to remove an imprudent investment option from a menu of options is a breach of fiduciary duty.

The DOL expresses concerns about significant risks and challenges related to fraud, theft, and loss due the following factors

• Speculative and volatile investments due to early stage of development
• Ability for participants to make informed investment decisions due to the unique nature of cryptocurrencies and lack of investor knowledge
• Custodial and recordkeeping concerns related to the asset not being held in a trust or custodial account but rather, stored as “lines of computer code in a digital wallet”
• Valuation concerns with reliability and accuracy, citing disagreements by experts
• Evolving regulatory environment that could result in unlawful transactions or inadequate disclosures

The DOL intends to conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies and related products—including those within brokerage windows and take “appropriate action” to protect the interests of plan participants and beneficiaries.

In March 2020, the President declared a national emergency effective March 1, 2020, due to the COVID-19 outbreak. The national emergency was extended for one year until February 28, 2022. On February 18, 2022, the President once again extended the national emergency until February 28, 2023.

The extended national emergency provides relief to health and welfare plans related to the following.

• COBRA notices (i.e., employer and employee), payment, and election
• HIPAA special enrollment requests
• Claims and appeals request and claims perfection

As clarified in Notice 2021-01, the Department of Labor, the Internal Revenue Service, and the Department of Treasury explained the disregarded period applies on a person-by person basis and cannot exceed one year, as follows:

• one year from the date an individual was first eligible for relief, or
• 60 days after the announced end of the National Emergency.

Employers should continue to monitor deadlines pursuant to prior guidance.

The Department of Labor has published a Request for Information (RFI) seeking what actions, if any, the department should take to protect retirement savings from risks associated with climate change. According to a DOL news release, the RFI follows President Biden’s Executive Order on Climate-Related Financial Risk, which directs the department to identify actions it can take under ERISA and other relevant laws to safeguard the life savings and pensions of U.S. workers and families from threats of climate-related financial risk. The DOL previously issued a proposed rule “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights”, however the RFI deals with a broader set of questions than the proposed rule and is a different initiative. The RFI’s comment period will run for 90 days after publication in the Federal Register.

Group health plans and health insurance issuers must provide benefits for certain items and services related to testing for the detection and diagnosis of COVID-19, including over-the-counter (OTC) COVID-19 tests. The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act require that these services be provided without imposing cost-sharing requirements, prior authorization, or other medical management requirements.

On February 4, 2022, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) issued Frequently Asked Questions (FAQs). These FAQs provide additional guidance on the requirement to provide coverage for OTC COVID-19 tests without a prescription or individualized clinical assessment from a health care provider.

The FAQs provide guidance in the following areas.

• Limits on Coverage: Plans or issuers may limit reimbursement to the lesser of the actual price of the test, or $12 per test. Each covered participant, beneficiary, or enrollee may be reimbursed for at least 8 tests per 30-day period (or per calendar month). The plan or issuer must calculate the reimbursement based on the number of tests in a package.
• Direct-to-Consumer Coverage: Plans or issuers that provide direct coverage of OTC COVID-19 tests through both a pharmacy network and a direct-to-consumer program, and otherwise limits reimbursement for OTC COVID-19 tests from nonpreferred pharmacies or other retailers to the lesser of the actual price of the test, or $12 per test, will not be subject to enforcement action. To provide adequate access, the plan or issuer must make OTC COVID-19 tests available through at least one direct-to-consumer shipping mechanism and at least one in-person mechanism. The direct-to-consumer mechanism may include online or telephone ordering, but the plan or issuer must cover the cost of shipping.
• Impact of Supply Shortage: Plans or issuers will not be out of compliance if they temporarily cannot provide adequate access because of a supply shortage.
• Fraud or Abuse: Plans or issuers may take reasonable steps to prevent, detect, and address fraud and abuse. For example, a plan or issuer can require tests to be purchased from an established retailer, substantiate the purchase by carefully reviewing receipts and documentation, and require the individual to attest that the product will not be resold.
• Self-Collected Sample with Lab Processing: OTC COVID-19 tests must be self-administered and self-read without the involvement of a health care provider. The OTC COVID-19 coverage rules do not apply when an individual sends the specimen to be processed in a laboratory. These tests must be ordered by a health care provider.
• FSA/HRA/HSA: The cost of OTC COVID-19 tests purchased after January 15, 2022, are eligible for reimbursement from a group health plan or issuer.  Individuals may not seek reimbursement more than once for the same medical expense. When notifying individuals about any direct coverage or reimbursement, the plan or issuer must include a reminder stating that the same medical expense may not be submitted to a health flexible spending account FSA), health reimbursement arrangement (HRA), or health savings account (HSA).

Further developments, including any clarifying guidance will be shared.

The Department of Labor has published in the Federal Register several inflation-adjusted penalty amounts for certain failures associated with qualified retirement plans.

On January 10, 2022, the Department of Labor’s Employee Benefits Security Administration, issued a new set of FAQs. This latest set of FAQs address questions relating to COVID-19 testing and diagnosis that must be covered by group health plans and health insurance issuers without cost sharing pursuant to the Families First Coronavirus Response Act (FFCRA). The FAQs require group health plans (GHPs) and health insurance issuers (issuers) to reimburse a participant or direct pay a provider for the cost of over-the-counter COVID-19 tests beginning January 15, 2022. The FAQs also provide the following information.

December 30, 2021 – The Department of Labor’s Employee Benefits Security Administration (EBSA), the IRS, and the Pension Benefit Guaranty Corporation (PBGC) jointly released the 2021 Form 5500, Annual Return/Report of Employee Benefit Plan, 2021 Form 5500-SF, Annual Return/Report of Small Employee Benefit Plan, and their respective instructions. The IRS likewise released the 2021 Form 5500-EZ, Annual Return of a One-Participant Retirement Plan or Foreign Plan, and instructions.

December 28, 2021 – The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a notice with final forms revisions for Form 5500, Annual Return/Report of Employee Benefit Plan, and Form 5500-SF, Annual Return/Report of Small Employee Benefit Plan, relating to annual reporting changes for multiple-employer plans (MEPs) and pooled employer plans (PEPs). It specifically revises the Form 5500 and Form 5500-SF instructions for the 2021 reporting year for multiple-employer plans. It is effective for plan years beginning on or after January 1, 2021.

December 22, 2021 – The Department of Labor’s Employee Benefit Security Administration (EBSA) has issued a supplemental statement to a June 2020 Information Letter. The letter addressed whether plan fiduciaries should offer private equity investments as investment options in individual account defined contribution plans. The 2020 letter indicated that such plans could potentially include managed asset allocation funds with a private equity component, but pointed out that a plan fiduciary should take into account whether it is prudent to include such an investment, particularly if it is a component of a plan’s qualified default investment alternative (QDIA).

Leadership from the House Committee on Education and Labor and its Subcommittee on Health, Employment, Labor and Pensions have introduced the Retirement Improvement and Savings Enhancement (RISE) Act to expand worker access to a secure retirement.