Are you an employer that offers or provides group health coverage to your workers? Does your health plan cover outpatient prescription drugs — either as a medical claim or through a card system? If so, be sure to distribute your plan’s Medicare Part D notice before October 15.
Medicare began offering “Part D” plans — optional prescription drug benefit plans sold by private insurance companies and HMOs — to Medicare beneficiaries many years ago. People may enroll in a Part D plan when they first become eligible for Medicare.
If they wait too long, a late enrollment penalty amount is permanently added to the Part D plan premium cost when they do enroll. There is an exception, though, for individuals who are covered under an employer’s group health plan that provides creditable coverage. (“Creditable” means that the group plan’s drug benefits are actuarially equivalent or better than the benefits required in a Part D plan.) In that case, the individual can delay enrolling for a Part D plan while he or she remains covered under the employer’s creditable plan. Medicare will waive the late enrollment premium penalty for individuals who enroll in a Part D plan after their initial eligibility date if they were covered by an employer’s creditable plan. To avoid the late enrollment penalty, there cannot be a gap longer than 62 days between the creditable group plan and the Part D plan.
To help Medicare-eligible plan participants make informed decisions about whether and when to enroll in a Part D drug plan, they need to know if their employer’s group health plan provides creditable or noncreditable prescription drug coverage. That is the purpose of the federal requirement for employers to provide an annual notice (Employer’s Medicare Part D Notice) to all Medicare-eligible employees and spouses.
Federal law requires all employers that offer group health coverage including any outpatient prescription drug benefits to provide an annual notice to plan participants.
The notice requirement applies regardless of the employer’s size or whether the group plan is insured or self-funded:
- Determine whether your group health plan’s prescription drug coverage is creditable or noncreditable for the upcoming year (2022). If your plan is insured, the carrier/HMO will confirm creditable or noncreditable status. Keep a copy of the written confirmation for your records. For self-funded plans, the plan actuary will determine the plan’s status using guidance provided by the Centers for Medicare and Medicaid Services (CMS).
- Distribute a Notice of Creditable Coverage or a Notice of Noncreditable Coverage, as applicable, to all group health plan participants who are or may become eligible for Medicare in the next year. “Participants” include covered employees and retirees (and spouses) and COBRA enrollees. Employers often do not know whether a particular participant may be eligible for Medicare due to age or disability. For convenience, many employers decide to distribute their notice to all participants regardless of Medicare status.
- Notices must be distributed at least annually before October 15. Medicare holds its Part D enrollment period each year from October 15 to December 7, which is why it is important for group health plan participants to receive their employer’s notice before October 15.
- Notices also may be required after October 15 for new enrollees and/or if the plan’s creditable versus noncreditable status changes.
Preparing the Notice(s)
Model notices are available on the CMS website. Start with the model notice and then fill in the blanks and variable items as needed for each group health plan. There are two versions: Notice of Creditable Coverage or Notice of Noncreditable Coverage and each is available in English and Spanish:
Employers who offer multiple group health plan options, such as PPOs, HDHPs, and HMOs, may use one notice if all options are creditable (or all are noncreditable). In this case, it is advisable to list the names of the various plan options so it is clear for the reader. Conversely, employers that offer a creditable plan and a noncreditable plan, such as a creditable HMO and a noncreditable HDHP, will need to prepare separate notices for the different plan participants.
Distributing the Notice(s)
You may distribute the notice by first-class mail to the employee’s home or work address. A separate notice for the employee’s spouse or family members is not required unless the employer has information that they live at different addresses.
The notice is intended to be a stand-alone document. It may be distributed at the same time as other plan materials, but it should be a separate document. If the notice is incorporated with other material (such as stapled items or in a booklet format), the notice must appear in 14-point font, be bolded, offset, or boxed, and placed on the first page. Alternatively, in this case, you can put a reference (in 14-point font, either bolded, offset, or boxed) on the first page telling the reader where to find the notice within the material. Here is suggested text from the CMS for the first page:
“If you (and/or your dependents) have Medicare or will become eligible for Medicare in the next 12 months, a federal law gives you more choices about your prescription drug coverage. Please see page XX for more details.”
Email distribution is allowed but only for employees who have regular access to email as an integral part of their job duties. Employees also must have access to a printer, be notified that a hard copy of the notice is available at no cost upon request, and be informed that they are responsible for sharing the notice with any Medicare-eligible family members who are enrolled in the employer’s group plan.
CMS Disclosure Requirement
Separate from the participant notice requirement, employers also must disclose to the CMS whether their group health plan provides creditable or noncreditable coverage. To submit your plan’s disclosure, use the CMS online tool and follow the prompts. The process usually takes only 5 or 10 minutes to complete. It is due with 60 days after the start of the plan year; for instance, for calendar year plans that will be March 1, 2022. If the plan’s prescription drug coverage ends or its status as creditable or noncreditable changes, submit a new disclosure within 30 days of the change.
By Kathleen A. Berger
Originally posted on Mineral
Many employees have the option to choose between their employer’s plan and another program where they meet the eligibility requirements (i.e., spouse’s, domestic partner’s, or parent’s plan). A Cash in Lieu of Benefits program, or cash-out option, offers an incentive for those employees to waive the employer coverage and instead enroll in the other plan. The incentive is in the form of a cash payment added to their paycheck. Properly implementing a Cash in Lieu of Benefits program is crucial, as unexpected tax consequences could occur otherwise.
The Internal Revenue Service (IRS) requires a Section 125 plan be in place to be a qualified cash-out option. If the plan is not set up under an IRC Section 125 plan, the plan will be disqualified and employees who elect coverage under the health plan will be taxed on an amount equal to the amount of cash they could have received for waiving coverage.
The IRS has ruled that when an option is available to either elect the health plan, or to receive a cash-out incentive, then the premium payment to the insurance company becomes wages. The reasoning is that when an employer makes payments to the insurance company where the employee has the option of receiving those amounts as wages, the employee is merely assigning future income (cash compensation) for consideration (health insurance coverage). Therefore, the payment is treated as a substitute for the health insurance coverage. By setting up an IRC Section 125 plan, the employer is offering a choice between cash and certain excludable employer-provided benefits, without adverse tax implications.
There must be a Plan Document in place and nondiscrimination requirements must be followed, including annual nondiscrimination testing, in order to be a qualified Section 125 plan. To meet nondiscrimination rules, Cash in Lieu of Benefits must be offered to all employees equitably. To be sure an employer is not over incentivizing employees to drop the plan, which could impact the nondiscrimination participation requirements, the monthly cash benefit should not exceed $200-$300.
When a Section 125 plan already exists (Premium Payment Plan, Health Care Spending Account, Dependent Care Spending Account), the plan can be amended to add the cash out feature. Where no Section 125 plan is in place, it is standard to have an attorney provide this service. It is important to note that, although the Section 125 plan protects the employees electing coverage from taxation, the cash-out incentive is an after-tax benefit.
As always with any IRS-qualified plan, proper documentation is essential. An employee should only be allowed to waive coverage when there is another plan available, and proof of enrollment is provided. If there is a subsequent loss of that coverage, HIPAA Special Enrollment Rights will allow entry onto the plan, and the cash-out incentive will cease.
Cash in Lieu of Benefits funds cannot be used to purchase individual health coverage. For companies over 20 lives and Medicare is secondary coverage, the plan should not be structured to incentivize employees over 65 to opt out of the employer plan to enroll in Medicare.
Another factor to consider is the impact to employers considered Applicable Large Employers (ALE) and subject to the affordability determination and reporting under the Affordable Care Act (ACA). An ALE is an employer averaging 50 or more full-time plus full-time equivalent employees for the preceding 12 months. If a cash out option is offered without an IRS qualified Cash in Lieu of Benefits plan, the payment must be included in the affordability calculation.
There are also Fair Labor Standards Act (FLSA) implications. Any opt-out payments made by an employer to an employee must be included in an employee’s regular rate of pay and therefore is used in calculating overtime compensation for non-exempt employees.
These considerations should be reviewed with a tax expert and/or ERISA attorney to determine if a Cash in Lieu of Benefits program is the right option for your organization. These professionals, along with a Section 125 Plan Administrator, can provide the necessary guidance to ensure the program will satisfy compliance requirements. For further information on this topic, please contact your Johnson & Dugan team.
By Jody Lee, Johnson & Dugan
City and County of San Francisco Minimum Compensation Ordinance
Any company with 5 or more employees and contracts with the City and County of San Francisco needs to be aware of the wage law that has been in effect for several years, and the recent amendment that now includes stricter enforcement. The Minimum Compensation Ordinance (MCO) covers most City service contractors as well as tenants at the San Francisco International Airport. The law generally requires covered employers to provide to their covered employees:
- No less than the MCO hourly wage in effect:
For contracts entered into on or after October 14, 2017, the minimum hourly compensation rates effective July 1, 2019 are:
- $17.66/hour – For-Profit entity
- $16.50/hour – Non-profit entity
- $16.50/hour – Public entity
For contracts in effect prior to October 14, 2017, the minimum hourly compensation rates effective July 2, 2019 are:
- $15.59/hour for work performed within the City of San Francisco (SF Minimum Wage)
- $10.77/hour for work performed outside of the City of San Francisco
Rates are subject to change, refer to the OLSE website for the most current information: www.sfgov.org/olse/mco
- 12 paid days off per year (or cash equivalent)
Time off allowed for vacation, sick leave, or personal necessity, and part-time employees are allocated paid days off on a prorated basis.
- 10 days off without pay per year.
Days off of for part-time employees are allocated on a prorated basis. The PTO accrual rate is 0.04615 hours per hour worked and can be used as vacation or sick leave. PTO hours are vested and can be cashed out at termination.
- The employer must post the Minimum Compensation Ordinance poster in a location where employees can read it easily.
- Employees must be provided a Know Your Rights form for signature.
Failure to meet the requirements could result in penalties, with a look-back period of 10 years when a complaint is filed. If you are not in compliance and want to avoid penalties, there are options to minimize your liability. Any audit based on a complaint will include a review of your employee handbook and your payroll records.
To review the November 21, 2019 amended rules, Click Here.
California law AB1554, signed into law by Governor Newsom on August 30, 2019, describes a new requirement for employers to advise participants in a Flexible Spending Account (FSA) of claim deadlines before the end of the plan year. Per the law: “This bill would require an employer to notify, in a prescribed manner, an employee who participates in a flexible spending account of any deadline to withdraw funds before the end of the plan year.”
Two different forms must be used, one of which can be electronic. Examples of notification options are “(1) Electronic mail communication. (2) Telephone communications. (3) Text message notification. (4) Postal mail notification. (5) In-person notification.”
Incorporating the claim filing deadline in your annual FSA open enrollment communications would satisfy this requirement as long as it is provided in two forms of the suggested methods. Terminated employees must also be notified of the claim filing deadline. This could be done in exit paperwork, verbally in an exit interview or sent electronically.
A poster could also be posted in an area that is accessible to all employees and should include the annual claim filing deadline as well as the deadline to file after the last day of employment, if mid-year. Click Here for a sample poster.
Your Johnson & Dugan team can work with you to incorporate this notice in your communications and meet this new requirement.
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Clifford Der, East West Administrators
We will be discussing alternative funding from traditional Self-Funding to Medical Expense Reimbursement Plans. We will also address any legal questions you may have regarding your liability as an employer offering a fully insured program versus a self-funded program.
11:45 a.m. – 12:00 p.m. Registration
12:00 p.m. – 1:00 p.m. Seminar & Complimentary Buffet Lunch
Location: Mistral Restaurant and Bar | 370-6 Bridge Parkway | Redwood Shores, CA 94065
Click Here To Register
About the Presenter:
Clifford Der, East West Administrators – Clifford has been a member of the National Association of Health Underwriters for more than 40 years. His extensive background in healthcare benefits includes developing the Chinese Community Health Plan (EPO-a first in the country), the first acupuncture plan, the development of the Medical Expenses Reimbursement Plans along with custom designed Partial Self-funded Health Plans.