Business Insights, Research & Perspectives

The EEOC has revised its “Equal Employment Opportunity is the Law” poster. The poster was revised to include information about the Americans with Disabilities Act Amendments Act of 2008 (ADAA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and updates from the Department of Labor.  Two versions of the poster are available: one is an ‘all-in-one’ current edition, and the other is a supplement for an existing posting.  Information relating to GINA must be posted by 11/21/09; the ADAA information became effective 1/1/09. 

Following are highlights of the 2010 cost-of-living adjustments (COLAs) issued by the IRS, applicable to defined benefit and defined contribution plans.  You will note that, by and large, there are no adjustments for 2010.  A COLA is based on the cost of living index; which has dropped; and thus, there are no increases for 2010.

The Obama Administration has had 8 months to place people into administrative roles.  We are now deemed to get a flavor for how things will be handled. 

Amid the flurry of health-related activity ranging from H1N1 preparedness, to health system reform, the Obama Administration has found time to begin placing its mark on retirement savings, as well.  Within a span of just of couple of days, the IRS issued several Retirement and Savings Initiatives; and, the DOL issued a Field Assistance Bulletin, all in an effort to facilitate individual savings.  Following is a brief summary of some of these pronouncements.  It is important to note that these are not new laws; rather, interpretations of existing law.

Final regulations were issued relating to employer comparable contributions to health savings accounts (HSAs).  These rules basically follow the proposed regulations issued in 2008. 

The IRS has provided new guidance on its website relating to the COBRA subsidy, and particularly the obligation of a COBRA-subsidy eligible individual to notify the plan if he/she becomes ineligible for the subsidy.  An individual becomes ineligible for the COBRA subsidy when, among other things, he/she becomes eligible for other group health plan coverage or Medicare.  Notably, this guidance states that anyone who suspects that an individual may be receiving the COBRA subsidy but is eligible for other group health coverage or Medicare, to report this information to the IRS on the Form 3949-A, Information Referral.

On August 24th and 25th, 2009, respectively, the Department of Health and Human Services (HHS) and the Federal Trade Commission (FTC) (“Agencies”) issued interim and final regulations relating to breach notification of personal health information.  These regulations become effective on September 23rd and 24th, 2009; however, both Agencies have indicated that they will honor a “non-enforcement policy” for six months from the date of issuance.  In effect, this non-enforcement policy will be in place until February 24th and 25th, 2010; thereafter, affected entities must be fully in compliance.  While these two sets of rules are similar, they are not identical.

A few weeks ago, the Massachusetts Division of Health Care Finance and Policy (DHCFP) issued proposed regulations relating to the Employer Fair Share Contribution (FSC) rules. The proposed rules make several technical changes to the rules that became effective January 1, 2009 (see  Massachusetts Fair Share Requirement Relaxed and Massachusetts Fair Share Filing – Streamlined).  In summary, the FSC rules impose an annual financial fee assessment ($295 per employee) upon employers who do not provide, or contribute toward, health coverage for their employees.

CMS has clarified, by way of theirUser Guide, that they consider health reimbursement arrangements (HRAs) to be a group health plan, for purposes of the Medicare Secondary Payor rules; and thus, subject to the Medicare Mandatory Reporting Requirement.  Responsible reporting entities (“RREs”) of HRAs do not need to register with CMS at this time. HRA data will not be collected for reporting until after October 1, 2010. HRA-only RREs must register with CMS by May 1, 2010 to allow enough time for testing to be completed before production files are due.

On July 20, 2009, the Department of Labor issuedField Assistance Bulletin (FAB) 2009-02, providing some welcome relief to 403(b) plans.  Many 403(b) plans are now subject to the Form 5500 annual filing requirement.  One of the outstanding questions has been, How will the plan sponsor gather information relating to contracts over which the employer has no authority or discretion?