Our Practice. Contact MARCH Author, Laura Westfall, New York , Kenneth A. Raskin.

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1 MARCH 2015 IRS Clarifies That After-Tax HRAs and Other Individual Health Insurance Payment Arrangements Generally Violate the Affordable Care Act; Limited Transition Relief Available Author, Laura Westfall, New York , Any employer who offers an arrangement that reimburses employees (or pays directly) for premiums or other medical costs of individual health insurance coverage, including a health reimbursement account ( HRA ) provided in connection with such coverage, should take note of recently-issued IRS Notice , which confirms that such arrangements are generally not permissible under the Affordable Care Act (the ACA ). Notice clarifies that even if employees are taxed on the value of the amounts paid or reimbursed under such an arrangement, the employer could be subject to substantial excise taxes for such arrangement s failure to satisfy the ACA s requirements. Limited transition relief is available under Notice to certain small employers who maintain such arrangements through June 30, 2015, for certain S-corporation arrangements with 2% shareholder employees, and for certain Medicare and TRICARE-related reimbursement arrangements. This article identifies the types of arrangements that are no longer permissible under the ACA and describes the transition relief provided by Notice Ever since the ACA s enactment in 2010, employers and practitioners have questioned whether (and in what circumstances) an employer could still use an HRA or other form of arrangement designed to pay or reimburse employee premiums for (or other medical expenses relating to) individual health insurance obtained through the public exchanges, Medicare or TRICARE. This question has been the subject of prior agency guidance, including DOL FAQs about Affordable Care Act Implementation Part XI, issued in January 2013; IRS Notice , issued in September 2013, DOL FAQs about Affordable Care Act Implementation Part XXII, issued in November 2014; and IRS FAQs issued in December Our Practice We advise public, private, taxable and tax-exempt clients on a wide variety of issues related to the design, preparation, communication, administration, operation, merger, split-up, amendment and termination of all forms of employee benefit plans and executive compensation programs and related funding vehicles. The firm has defended clients in significant high-profile ERISA litigation matters, including 401(k) plan stock drop cases and other breach-offiduciary-duty class actions. Contact Kenneth A. Raskin Chair of the Employee Benefits & Executive Compensation Practice New York kraskin@kslaw.com Page 1 of 7

2 After-Tax Arrangements Notice reiterates the conclusion set forth in previous guidance: that employer arrangements that provide reimbursements or payments which are used to obtain medical care (regardless of whether such amounts relate to health insurance premiums or to other medical expenses) are generally considered to be group health plans under ERISA, which are subject to but will fail to satisfy the ACA s market reforms (such as the ACA s annual dollar limit prohibition and its preventive services requirements), unless such arrangements can be integrated with another group health plan (as detailed in IRS Notice ). However, Notice goes beyond the scope of previous guidance by clarifying that such arrangements are generally considered group health plans subject to the ACA s market reforms, even if the employer treats the reimbursements or payments made under such arrangements as taxable income to the employee. Notice further clarifies that such arrangements cannot be integrated with an individual health insurance policy in order to satisfy the ACA s market reforms, and that maintaining such a noncompliant arrangement will trigger excise taxes to the employer under the ACA of up to $100 per day per affected individual, until the arrangement is corrected or discontinued. Further, large employers subject to the ACA s employer pay or play rules who were hoping to use such arrangements in connection with individual health insurance coverage for purposes of satisfying the employee coverage obligations of those pay or play rules should note that Notice specifically states that such arrangements cannot be integrated with individual coverage for purposes of satisfying those coverage obligations. INSIGHT: Notice states that an arrangement in which an employer increases an employee s compensation in order to assist that employee with payments for individual market coverage is still permissible (e.g., because it is not a group health plan that would be subject to the ACA s market reforms), so long as the arrangement does not condition the increase in compensation on the employee s purchase of individual health insurance coverage, and the employer does not endorse a particular policy, form or issuer of health insurance coverage. Notice specifically states that providing employees with information about public insurance exchanges or premium tax credits is not an endorsement of a particular policy, form or issuer of health insurance. However, employers who intend to offer such arrangements going forward should be wary of engaging in behavior that could be interpreted as an endorsement. Transition Relief for Small Employers Notice provides that small employers not subject to the ACA s employer pay or play rules (e.g., employers that had less than 50 full-time employees, including full-time equivalents, during the prior calendar year) that may have arrangements to reimburse employees, or to pay premiums directly, for individual health insurance will not be subject to excise taxes resulting from the failure of such arrangements to satisfy the ACA s market reforms during the period from January 1 through June 30, 2015 (such employers were not subject to excise taxes for 2014 under separate transition relief). However, the transition relief provided by Notice is not available where such arrangements reimburse employees for other medical expenses (in addition to premiums) relating to such coverage. Page 2 of 7

3 Transition Relief for S Corporations S corporations are permitted by existing IRS guidance to pay for or reimburse premiums for individual health insurance covering a 2% shareholder employee (generally, an employee of an S corporation that owns, directly or through attribution, more than 2% of the outstanding stock, or the total combined voting power of all stock, of such corporation). The amounts so paid or reimbursed by the S corporation must be included in the 2% shareholder employee s income, but the 2% shareholder employee may generally deduct such amounts. Notice states that such arrangements will not be subject to excise taxes under the ACA for failure to satisfy the ACA s market reforms until further guidance is issued (and at least through the end of 2015). However, this transition relief is limited: Notice also states that if an S corporation maintains more than one such arrangement for different employees (whether or not such employees are 2% shareholder employees), the arrangements will be aggregated and treated as a single arrangement covering more than one active employee making the arrangement a group health plan that is both subject to the ACA s market reforms and to excise taxes for failing to satisfy those reforms. Transition Relief for Certain Medicare and TRICARE Arrangements Notice confirms that employer arrangements which reimburse (or pay directly for) Medicare Part B or Part D premiums or that reimburse medical expenses for employees covered by TRICARE are generally group health plans subject to the ACA s market reforms. However, Notice states that so long as an employer also offers coverage under a group health plan of the employer (which provides minimum value and does not consist solely of excepted benefits) to employees who are eligible for such arrangements, such arrangements will be considered to be integrated with the employer s group health plan and therefore will not be subject to the ACA s market reforms. Conclusion INSIGHT: The relief provided by Notice is only necessary where a Medicare Part B or Part D or TRICARE payment or reimbursement arrangement covers two or more active employees, since prior IRS guidance has confirmed that retiree-only plans are not subject to the ACA s market reforms. Any employer that reimburses or pays premiums for (or other medical expenses relating to) individual health insurance outside the confines of the employer s group health plans should be aware that such arrangements are generally no longer feasible under the ACA and could therefore subject the employer to significant excise taxes, unless such arrangements meet one of the exceptions provided by agency guidance, as described above. Further, any transition relief available under Notice for such arrangements may only be available for a short period of time, and/or may be conditioned on such arrangements meeting certain requirements. Employers should immediately review the terms of all reimbursement and payment arrangements that are offered to current and former employees, and determine if any of those arrangements could be considered a group health plan that would be subject to (and likely violate) the ACA s market reforms. Any employer offering such an arrangement should determine whether transition relief is available, and whether it may be necessary to take additional steps to minimize or avoid exposure to excise taxes relating to such arrangement s noncompliance. King & Spalding is ready to assist you in taking such steps and would be happy to answer any questions you may have about the effect of Notice and other guidance on your current reimbursement and payment arrangements. Page 3 of 7

4 EXTRA! EXTRA! FASB Eliminates Extraordinary Items; Impact on Section 162(m) Plans Author, Mark Kelly, Atlanta , Public company incentive plans that are designed to comply with the performance-based compensation rules under Section 162(m) of the Internal Revenue Code often include language that permit the exclusion of certain events, including extraordinary items, in determining whether or not an objective performance goal has been achieved. FASB recently eliminated the concept of extraordinary items, and substituted a more flexible standard. Companies should review their incentive plans now to understand the implications of the new FASB rule and make adjustments where necessary to preserve flexibility. Extraordinary Items Under FASB FASB recently eliminated the concept of extraordinary items from GAAP, noting that the concept causes great uncertainty in application and that it has been extremely rare for an event to meet the requirements necessary to be classified as an extraordinary item. Under the old FASB standard, an event was classified as extraordinary only if, taking into account the environment in which the entity operates, the underlying event or transaction both (1) possessed a high degree of abnormality and is of a type clearly unrelated to, or only incidentally related to, the ordinary and typical activities of the entity, and (2) was of a type that would not reasonably be expected to recur in the foreseeable future. Where an event or transaction satisfied the criteria for extraordinary classification, an entity was required to segregate the extraordinary item from the results of ordinary operations and to show the item separately in its income statement. Under the new revised FASB rules, a material event or transaction that is of an unusual nature, or of a type that indicates infrequency, or both, must be reported as a separate component of income from continuing operations. The key takeaway is that because items no longer have to be both unusual and infrequent, the standard is substantially relaxed. This new rule is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, However, companies may apply the new rule retrospectively to prior periods. How does this FASB Change Impact Section 162(m) Compensation Plans? Public company incentive plans that are designed to comply with the performance-based compensation rules under Code Section 162(m) often include language that allow the compensation committee to exclude certain events, including extraordinary items, in determining whether or not an objective performance goal has been achieved. Where a Section 162(m) plan refers to the old FASB standard, the plan may need to be amended to make reference to the new FASB standard; otherwise, a plan provision which excludes the impact of extraordinary items may not be given effect since it references a now-obsolete standard. On the other hand, where a Section 162(m) plan does not make any reference to the FASB standard, the plan may not need amendment. For example, the change should not have any impact on a Section 162(m) plan designed as negative discretion plan. Because the committee could exclude the impact of anything it chooses, these types of plans would not require an amendment (as long as the extraordinary item results in a reduction of payments). In determining whether and when changes need to be made, consideration should be given to the types of events that could be considered unusual or infrequent under the new FASB rule. A company may not want to exclude the Page 4 of 7

5 consequences of such events to the extent they would otherwise increase the amount payable under the plan. In addition, where awards have multi-year performance periods that end after the December 15, 2015, companies should exercise caution about changing the FASB standard during the performance period; such changes could result in changes to the objective performance standards, resulting in the award not qualifying as performance-based compensation. Companies should review their compensation plans now to understand the implications of the new FASB rule and make adjustments where necessary to take advantage of the broader circumstances under which adjustments in determining whether performance goals have been satisfied can be made. King & Spalding would be pleased to assist with a review of your compensation plans and the impact of the FASB change. April and May 2015 Filing and Notice Deadlines for Qualified Retirement and Health and Welfare Plans Author, Ryan Gorman, Atlanta, , rgorman@kslaw.com Employers and plan sponsors must comply with numerous filing and notice deadlines for their retirement and health and welfare plans. Failure to comply with these deadlines can result in costly penalties. To avoid such penalties, employers should remain informed with respect to the filing and notice deadlines associated with their plans. The filing and notice deadline table below provides key filing and notice deadlines for the next two months. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is delayed until the next business day. Please note that the deadlines will generally be different if your plan year is not the calendar year. Please also note that the table is not a complete list of all applicable filing and notice deadlines (including any available exceptions and/or extensions), just the most common ones. King & Spalding is happy to assist you with any questions you may have regarding compliance with the filing and notice requirements for your employee benefit plans. Deadline Item Action Affected Plans April 1 Age 70 ½ Distribution Requirements Deadline for plan administrator to distribute prior year s required minimum distribution for any terminated employee who reached age 70 ½ or older during the prior year. Qualified Retirement Plans April 15 Excess Deferrals Deadline for plan to distribute prior year s deferrals in excess of Internal Revenue Code (IRC) 402(g) annual dollar limit and related earnings. 401(k) Plans Qualified Retirement Plans include all defined benefit and defined contribution plans that are intended to satisfy Code 401(a). Page 5 of 7

6 Deadline Item Action Affected Plans April 15 (105 days after the end of the plan year) PBGC 4010 Filing Deadline for contributing sponsors (and each controlled group member) to file PBGC Form 4010 if: 1) Any single-employer plan in the contributing sponsor s controlled group had a prior year AFTAP of less than 80%; Defined Benefit Plans 2) Any single-employer plan in the contributing sponsor s controlled group fails to make a required installment or other required payments to a plan, and as a result, a lien is imposed pursuant to ERISA section 303(k)(1) or IRC section 430(k)(1); or 3) The IRS has granted funding waivers of more than $1 million to any single-employer plan in the contributing sponsor s controlled group and any portion of such waiver is still outstanding. April 30 (no later than 120 days after the end of the plan year) Annual Funding Notice Deadline for the plan administrator to provide a plan funding notice to the PBGC, to each plan participant and beneficiary and to each employer that has an obligation to contribute under the plan. Defined Benefit Plans May 14 (within 45 days after the close of the first quarter of plan year) Benefit Statements for Participant- Directed Plans Quarterly Fee Disclosure Deadline for plan administrator to send benefit statement for the first quarter of the plan year to participants in participant-directed defined contribution plans. Deadline for plan administrator to disclose fees and administrative expenses deducted from participant accounts during the first quarter of the plan year. Note that the quarterly fee disclosure may be included in the quarterly benefit statement or as a stand-alone document. Defined Contribution Plans that allow participants to direct investments Page 6 of 7

7 Deadline Item Action Affected Plans May 15 (the 15 th day of the 5 th month after the end of the plan year) IRS Forms 990 and 990-EZ Deadline for tax-exempt trusts associated with qualified retirement plans and voluntary employee beneficiary associations (VEBAs) to file Forms 990 or 990-EZ with the IRS for prior year. A 3-month extension may be obtained by filing a Form 8868, which must be filed by this date. Qualified Retirement Plans Voluntary Employee Beneficiary Associations Page 7 of 7

8 Employee Benefits & Executive Compensation Team Partners Kenneth A. Raskin Chair, Employee Benefits & Executive Compensation Practice Samuel S. Choy schoy@kslaw.com Counsel Donna Edwards dedwards@kslaw.com Mark P. Kelly mkelly@kslaw.com Associates Ryan Gorman rgorman@kslaw.com Consultant* James P. Cowles jcowles@kslaw.com Emily Meyer emeyer@kslaw.com Laura Westfall lwesftall@kslaw.com *Non-lawyer Employee Benefits Consultant About King & Spalding Celebrating more than 125 years of service, King & Spalding is an international law firm that represents a broad array of clients, including half of the Fortune Global 100, with 800 lawyers in 17 offices in the United States, Europe, the Middle East and Asia. The firm has handled matters in over 160 countries on six continents and is consistently recognized for the results it obtains, uncompromising commitment to quality and dedication to understanding the business and culture of its clients. More information is available at The contents of this newsletter and any attachments are not intended to be and should not be relied upon as legal advice. In some jurisdictions, this may be considered "Attorney Advertising." If you are not currently on our Employee Benefits & Executive Compensation Practice mailing list under your own name, and you would like to join to receive our monthly Compensation and Benefits Insights publication and to receive notices of future programs and occasional commentaries on new legal developments in the industry, you can make that request by submitting your full contact information to CBI@kslaw.com King & Spalding