ERISA News

Legislation to promote retirement plan lifetime income options has been reintroduced by Representatives Donald Norcross (D-NJ) and Tim Walberg (R-MI). The Lifetime Income For Employees (LIFE) Act of 2022 would modify the qualified default investment arrangement rules under ERISA to allow annuity investments as part of a default in employer-provided 401(k) plans. The proposal is intended to provide employees with a steady guaranteed income during retirement and allow greater peace of mind that their income will last throughout retirement.

The Internal Revenue Service (IRS) has released proposed regulations relating to required minimum distributions from qualified plans, section 403(b) annuity contracts and custodial accounts, individual retirement accounts and annuities (IRAs), and eligible deferred compensation plans under Internal Revenue Code Section 457.

The proposed regulations are being updated in part to accommodate changes made by the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act). Comments on the proposal can be made up to 90 days after publication in the Federal Register.

The Pension Benefit Guarantee Corporation (PBGC) has updated the “What’s New for Employers & Practitioners” page of its website to indicate that the audit selection methodology has been revised. The PBGC’s Standard Terminations Q&A states that plans with a participant count of more than 1,050 are selected for audit. Plans with less than 1,050 participants may be randomly selected for audit. Further, plans may be selected for audit if the PBGC has reason to believe that there is a problem or if all plan assets were distributed without filing a Standard Termination Notice (PBGC Form 500) in accordance with the standard termination regulations.

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.

The Securities and Exchange Commission (SEC) has issued a proposed rule “Shortening the Securities Transaction Settlement Cycle”. The SEC notes in a press release that it is proposing to shorten the settlement cycle for most broker-dealer transactions from two business days after the trade date (T+2) to one business day after the trade date (T+1). The changes are designed to improve efficiency and reduce transaction risks. The proposal includes rules directed at broker-dealers and investment advisers that would shorten the process of confirming and affirming the trade information necessary to prepare transactions for settlement. The proposal solicits comments on challenges associated with and recommendations for achieving a same-day settlement cycle.

The SEC will accept public comments for the longer of 1) 60 days following the release of the proposed rule on the SEC’s website, or 2) 30 days following the publication of the proposed rule in the Federal Register.

The Securities and Exchange Commission (SEC) has released a proposed rule “Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies”. According to the press release, the proposed rule would require advisers and investment companies to implement written cybersecurity policies and procedures designed to 1) address cybersecurity risks that could harm advisory clients and fund investors, and 2) publicly disclose significant risks and incidents. The proposed rule would also implement new recordkeeping requirements for advisers and funds to improve the availability of cybersecurity-related information and to help facilitate the SEC’s enforcement capabilities.

The SEC will accept public comments for the longer of 1) 60 days following the release of the proposed rule on the SEC’s website, or 2) 30 days following the publication of the proposed rule 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 Child Health Savings Account Act of 2022 (H.R. 6507), introduced by Beth Van Duyne (R-TX) in the House of Representatives, would expand HSA contribution eligibility requirements by allowing parents to contribute and deduct up to $3,000 each year to their childrens’ HSAs.

The HSA will be treated as the parent’s HSA until the child reaches age 18. At that time, it would become the child’s HSA. As the bill is currently drafted, any distributions taken out of the HSA before the child’s 18^th birthday would be included in the parent’s taxable income. Nonqualified distributions would also be subject to an additional 20 percent penalty tax. Once the child turns 18, distributions would be considered qualified only if they were taken while the child was not a dependent on the parent’s insurance (the child could be treated as the parent’s dependent for certain permitted insurance, but not for the parent’s health plan).

If the child were to become disabled or die, the parent would no longer be able to make contributions, but could roll over any HSA assets to their own IRA or HSA, or to another child’s HSA.

If enacted, this legislation would become effective for tax years beginning after the date of enactment. Any progress of the bill through Congress will be monitored, and details provided as they become available.

The Family Plus Health Care Act of 2022 (H.R. 6508), introduced by Beth Van Duyne (R-TX) in the House of Representatives, aims to expand group health plan coverage by requiring plans to offer participants the option of enrolling their parents in the plan, as long as the parents are not eligible to enroll in either Medicare or Medicaid.

The cost of the parents’ group health plan coverage would be excluded from the gross income of the employee participating in the plan. Self-employed individuals would be allowed to claim a deduction for the amount that they paid to insure their parents.

The term ‘parent’ includes an individual’s biological parent, a stepparent, and a parent by adoption, but does not include a spouse’s parent. If enacted, this legislation would apply to any amounts paid or incurred after the bill’s date of enactment.

The IRS has issued Notice 2022-7, which contains updated guidance on factors used in certain defined benefit (DB) pension plan minimum funding and present value calculations. Updates include the corporate bond monthly yield curve, the corresponding spot segment rates used under Internal Revenue Code Section (IRC Sec.) 417(e)(3), and the 24-month average segment rates under IRC Sec. 430(h)(2). IRC Sec. 417 contains definitions and special rules for minimum survivor annuity requirements in DB plans. IRC Sec. 430 addresses minimum funding standards for single-employer DB plans.