Legislative updates

A final rule from the Department of Labor titled “Implement SECURE Act and Related Revisions to Employee Benefit Plan Annual Reporting on the Form 5500” has left the Office of Management and Budget.
 
According to a description of the rule, it is likely to include guidance on the implementation of Group of Plans reporting pursuant to Section 202 of the SECURE Act. The Department of Labor released certain form revisions last year but indicated that it was evaluating public comments on elements of the September 2021 proposal related to 1) Defined Contribution Group reporting under the SECURE Act and related audit issues, 2) new Schedule MEP (Multiple-Employer Retirement Plan Information)  reporting requirements, 3) financial improvements to the Schedule H, 4) changes in participant counts related to plan audit requirements, 5) reporting for multiple employer welfare arrangements that file Form M-1, and 6) questions on pension plan compliance.

Earlier this week, President Biden announced his intent to extend the national emergency concerning the COVID-19 pandemic through May 11, 2023. President Trump initially declared a national emergency at the beginning of the COVID-19 outbreak in March 2020. Shortly after President Biden took office, the national emergency was extended for one year through February 28, 2022. President Biden extended the national emergency for a second time on February 18, 2022, until February 28, 2023.

Beginning March 1, 2020, the national emergency declaration has provided relief to health and welfare plans by extending the following deadlines:

• HIPAA special enrollment periods
• 60-day election period for COBRA continuation coverage
• Date for making COBRA continuation coverage premium payments
• Date for individuals to notify a health plan of a qualifying event or determination of disability
• Date that individuals can make a claim for benefits under the plan's claims procedures (extending the runout period for reimbursement by health plans, health FSAs, or HRA plans until after the pandemic has subsided)
• Date for individuals to perfect an incomplete claim
• Dates for appealing denied benefits and for external review of claims denials
• Date that a group health plan sponsor or administrator must provide a COBRA election notice

As clarified in Notice 2021-01, the Department of Labor, the Internal Revenue Service, and the Department of Treasury explained the extension of deadlines 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

 If the national emergency ends on May 11, 2023, as planned, the extension of deadlines would end on July 10, 2023. Normal deadlines for the events listed above will apply as of that date. President Biden has indicated that he intends to end both the public health emergency and the national emergency on May 11, 2023.

Senator Ted Cruz (R-TX) has reintroduced the Student Empowerment Act. The bill would allow public, private, and religious school students to use 529 savings accounts to cover K-12 expenses—including expenses related to tutoring, testing fees, and educational therapies for students with disabilities.

This credit applies to qualified plans (defined contribution and defined benefit plans under IRC Sec. 401(a) and 403(a)), and SEP and SIMPLE plans.

Representative Andy Biggs (R-AZ) has introduced H.R. 107, the Freedom for Families Act, which proposes the following.

• Provide that distributions from health savings accounts (HSAs) during periods of qualified caregiving are not includible in gross income
• Remove the requirement that an individual be covered under a high deductible health plan in order to contribute to an HSA
• Increase the annual contributions limits to $9,000 for single coverage and $18,000 for family coverage

Under the proposal, periods of qualified caregiving are defined as any period during which an individual is on leave or not employed because of the following reasons.

• Birth of the employee’s child and the period required to care for such child
• Placement of a child with the employee for adoption or foster care
• Caring for the employee’s spouse, son, daughter, or parent, because of a serious health condition
• A serious health condition that makes the employee unable to perform the functions of her position
• Certain emergencies as a result of covered active duty or notification of order to covered active duty in the Armed Forces by the employee’s spouse, son, daughter, or parent

The bill has been referred to the House Committee on Ways and Means.

Retirement legislation has been a welcome area of bipartisan cooperation in the U.S. Congress, marked by a history of Republican and Democratic bill co-sponsorship and support. A recent example is the Setting Every Community Up for Retirement Enhancement Act—the SECURE Act—passed and signed into law in 2019. The SECURE Act has been hailed as the most important retirement enhancement legislation in more than a decade.

On December 29, 2022, the Consolidated Appropriations Act of 2023 (CAA 2023)—which serves to fund the federal government for a full year—was enacted. Included in CAA 2023 is a provision granting a two-year extension allowing high deductible health plans (HDHPs) to waive the deductible for telehealth and other remote care services without causing plan participants to lose the ability to contribute to a health savings account (HSA). The two-year extension is in effect January 1, 2023, through December 31, 2024.

Highlights regarding the extension are as follows:

• Telehealth services do not need to be preventive or related to COVID-19 to qualify for the relief;
• An employer is not required to waive the deductible for telehealth services;
• The relief applies on a monthly basis rather than a plan year basis. As a result, non-calendar year HDHPs that provide first dollar coverage for telehealth services must modify their plan design mid-year effective January 1, 2025;
• Employers who offer a fully-insured HDHP should contact their insurance carrier to confirm the insurer will continue to provide first dollar coverage for telehealth services; and
• Employers who will continue to waive the deductible for telehealth services should communicate this extension to individuals covered under a HDHP.

Yesterday, President Biden signed the Consolidated Appropriations Act of 2023 into law, which included the SECURE 2.0 Act of 2022. As previously announced, both the Senate and the House approved the Consolidated Appropriations Act of 2023, last week.

The House of Representatives has passed the Consolidated Appropriations Act of 2023, HR 2617, today with a 225-201-1 vote. Included in this bill is the SECURE 2.0 Act of 2022. Following the Senate’s approval on December 22, 2022, the bill will now be presented to the President for his signature.

The Senate has approved the Consolidated Appropriations Act, 2023 (CAA 2023), by a 68-29 vote. Included in this bill is the SECURE 2.0 Act of 2022.