The new Illinois Transportation Benefits Program Act (HB 2068; P.A. 103-291) aims to promote the commuter benefits available to employees who use public transportation to commute to and from work.

Beginning January 1, 2024, certain employers located within designated Illinois counties and townships will be required to provide employees a “pre-tax commuter benefit.”

The pre-tax benefit means that employers must allow covered employees to use pre-tax dollars for the purchase of a transit pass through payroll deduction. A transit pass is any pass, token, care card, and the like entitling the employee to take public transit. Participating transit programs may include those offered by the Chicago Transit Authority (CTA) or the Regional Transportation Authority. More…

Under the Affordable Care Act (ACA), applicable large employers (ALEs) — i.e., those with, on average, fifty (50) or more full-time or full-time-equivalent employees in the preceding year — must offer in the following year affordable, minimum value group health plan coverage to their full-time employees and those employees’ dependents or risk imposition of ACA penalties. Affordability is determined by using the employee’s premium for the lowest-cost employee-only coverage under the employer’s plan. The coverage is affordable if the employee premium for this coverage is 9.5% (as adjusted) or less of the employee’s household income.

Recognizing that employers might have a very difficult — if not impossible — time determining full-time employee household income, the ACA employer mandate final regulations set forth three (3) safe harbor proxies for employee household income that employers can select from to make affordability determinations:  the federal poverty line, W-2 wages, or rate of pay.

In the recently issued Rev. Proc. 2023-29, the Internal Revenue Service announced the affordability percentage that will apply for plan years beginning in 2024:  8.39%. This percentage is a notable reduction from the previously applicable 9.12% for 2023 and is the lowest applicable percentage since the employer mandate’s inception.

With open enrollment for calendar year plans just around the corner, ALEs should take immediate steps to make sure their offers of coverage for 2024 will satisfy the new affordability percentage.

If you have questions concerning the affordability percentage or any other aspect of the ACA, the Jackson Lewis Employee Benefits Practice Group members are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Most employers know that if a group health plan provides mental health or substance use disorder (MH/SUD) benefits in any of six specified classifications, the plan must provide MH/SUD benefits in all specified classifications in which the plan provides medical or surgical (M/S) benefits. Additionally, the 2008 Mental Health Parity and Addition Equity Act (MHPAEA) requires plans to ensure that the financial requirements and treatment limitations (quantitative or nonquantitative) imposed on MH/SUD benefits are no more restrictive than those imposed on M/S benefits. While the United States Department of Labor’s Employee Benefits Security Administration (EBSA, which enforces employer-sponsored plans’ compliance with the MHPAEA) has proclaimed that it already has issued multiple compliance navigation guides for plans, the truth is that the guidance issued to date has lacked sufficient detail and failed to account for the actual circumstances necessary to be helpful to employers. Meanwhile, EBSA is investigating employer plans for compliance, publicly naming those that it deems fall short, and encouraging plan participants to demand written disclosures of details that are largely unavailable.

The Road and Navigation Systems Still Are Under Construction

EBSA has issued multiple requests for comments and guidance over the past couple of decades in connection with the MHPAEA. EBSA’s guidance includes 2013 final regulations, a self-compliance tool, 2019 FAQs (in which it listed examples of nonquantitative treatment limitations or NQTLs), and 2021 FAQs (in which it announced that it would begin investigating plans for compliance with the NQTL comparative analysis documentation requirements that became effective that year). One thing all of the prior guidance has in common is a failure to acknowledge that the employer, who’s usually ultimately accountable for compliance, has virtually no way to assess whether its group health plan complies with the mental health parity requirements. Except in rare circumstances, employers don’t select network providers, don’t negotiate reimbursement rates, don’t determine what preauthorization requirements will apply for what covered services, don’t know what’s medically necessary, and don’t know what claims have been approved or denied or why. So, for employers, the road to compliance is like driving through a construction zone without navigation and with multiple speed traps and caution signs posted in a foreign language. Employers need a roadmap and a way to navigate the many obstacles and construction zones on the route to compliance.

The recently-issued proposed regulations we blogged about last month are somewhat helpful because they provide more specific information about what data plans must collect and consider in order to design and apply NQTLs. This includes evaluating historical data comparing in- and out-of-network utilization rates and provider reimbursement rates – information the employer has to extract from the plan’s third-party administrator. While EBSA acknowledged the challenges employers face in collecting and evaluating the data needed to determine compliance, it still expects plans to show the analysis undertaken and the steps taken to mitigate material differences in access to MH/SUD benefits compared to M/S benefits. The EBSA (and other federal agencies) annual reports to Congress, which describe the agencies’ findings in enforcement investigations and highlight the agencies’ primary concerns regarding mental health parity, are also potentially helpful. For example, chief among the concerns highlighted is network adequacy. The agencies cite what’s been reported as a “growing disparity” in in-network reimbursement rates between MH/SUD providers and M/S providers, which drives down MH/SUD providers’ network participation and, therefore, increases the cost of MH/SUD services for patients.

How Employers Can Navigate A Road That’s Still Under Construction

It’s obvious that federal agencies are still gathering the information they think is relevant and necessary to provide meaningful guidance and enforcement. So, for now, employers should develop and document a compliance program using what is available to show a good faith effort to comply with the MHPAEA, including the NQTL comparative analysis requirement.

Any such compliance program should include these steps:

  • Determine which vendors to contact to gather the necessary documentation and information. In addition to the insurer or third-party administrator (TPA) for the group health plan, this may also include, for example, a behavioral health administrator and/or pharmacy benefit manager.
  • Develop a list of specific questions for the insurer/TPA and other vendors that will enable the employer to gather the information needed to determine whether the plan complies with the MHPAEA, including the NQTL requirements. It is helpful to reference the DOL self-compliance tool to develop an effective list of questions and to use its framework to document the compliance review effort. One should also incorporate the data elements in the recently issued proposed regulations. If the plan service provider has conducted and documented a compliance review itself, particularly the required NQTL comparative analysis, this will save the employer an enormous amount of time and other resources.
  • Document all communications with the insurer/TPA and other vendors, particularly those from whom one requests assistance gathering the data necessary to ensure MHPAEA compliance.
  • Analyze the data provided by the insurer/TPA and other vendors, both on a granular level and in the aggregate, using available EBSA guidance to help spot disparities. If needed, develop follow-up questions to the insurer/TPA and other vendors regarding any coverage disparities between MH/SUD and M/H benefits, the application of utilization review to MH/SUD benefits, and/or the reasoning behind MH/SUD claims denials.
  • If needed, identify areas of concern and pursue corrective action.  Retain all communication with the insurer/TPA or other vendor involved. 
  • If needed, update administrative services agreements to ensure ongoing cooperation from TPAs and other plan service providers in evaluating compliance, correcting compliance issues, and making required disclosures.

Bear in mind that MHPAEA compliance is an ongoing trip and should be revisited annually and whenever EBSA issues meaningful additional guidance. Employers can attend a free webinar on the proposed regulations that the federal agencies sponsor on September 7, 2023. Also, employers or employer groups interested in helping shape the final regulations have until October 2, 2023, to submit written comments on the proposed regulations. 

The attorneys in the Employee Benefits Practice Group are available to assist clients with developing and documenting their MHPAEA compliance programs and preparing comments on the proposed regulations. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

With a multitude of questions surrounding implementation and administration, late on a summer Friday afternoon, the IRS issued Notice 2023-62 (Notice), providing Plan Sponsors with a transition period until 2026 to implement Roth catch-up contributions.

Catch-up contributions are a defined contribution plan feature many 401(k) and 403(b) Plan Sponsors are familiar with. Since being introduced in 2001 as part of the Economic Growth and Tax Reconciliation Act (EGTRRA), a catch-up contribution feature allows participants who are age 50 or over in a plan year to make elective contributions that exceed an otherwise applicable limit under the Internal Revenue Code, a plan-imposed limit, or the actual deferral percentage (ADP) limit for Highly Compensated Employees. For 2023, the limit on catch-up contributions is $7,500, subject to indexing in future years.

Enter one of the many tax-qualified retirement plan-related changes enacted as part of the SECURE 2.0 Act of 2022 (SECURE 2.0). SECURE 2.0 provides, among many other things, that effective January 1, 2024, catch-up contributions for participants whose wages (for FICA/FUTA purposes) from the employer sponsoring the plan were more than $145,000 in the prior year must be made on a Roth (after-tax) basis. Further, when the plan provides for mandatory Roth catch-up contributions for those earning over $145,000 in the prior year, the plan must also allow Roth catch-up contributions for all eligible participants.

How hard could it be?

Although simple enough in concept, “flipping a switch” to require Roth catch-up contributions for those earning over $145,000 in the prior year has raised several questions and proved administratively tricky for many.

Not insignificantly, wages for determining which participants must be subject to mandatory Roth catch-ups is not something plans already capture. Designing and testing compliance systems requires a complicated and coordinated effort between Plan Sponsors, recordkeepers, and payroll vendors. With only four months until the statutory effective date, Plan Sponsors have expressed consternation over participant communications, sequencing of which dollars are considered catch-up, obligations related to collectively bargained plans, and the need for further guidance on open questions about whether new participant elections would be needed and mid-year amendment implications for safe harbor plans.

These issues and others have led some Plan Sponsors to consider eliminating all catch-up contributions or at least for those earning over $145,000 in the prior year as a route to compliance. Certainly, not an intended consequence of SECURE 2.0. Other Plan Sponsors considered requiring that any catch-up contribution made only be as Roth for all participants, regardless of wage level.

What is next?

The relief provides important breathing room for plans to work towards compliance by explicitly providing that any catch-up contributions made between January 1, 2024, and December 31, 2025, will be treated as meeting the requirements of SECURE 2.0, even if made only as pre-tax contributions.

The Notice also confirmed that for plan years after 2023, those 50 and over will remain eligible to make catch-up contributions. A technical error in the Secure 2.0 legislation inadvertently eliminated the catch-up provision from the Internal Revenue Code.

The Notice clarifies that additional guidance will be forthcoming. The guidance is expected to include (1) guidance stating that the Plan Administrator and Employer are permitted to treat an election by the participant to make catch-up contributions on a pre-tax basis as an election to make catch-up contributions that are designated Roth contributions and (2) guidance stating that in a plan maintained by more than one employer (including a multiemployer plan), wages are not aggregated between participating employers to determine whether a participant reaches the $145,000 threshold.

The IRS specifically invites comments and suggestions on whether a plan that offers Roth catch-up contributions in order to comply, but not the ability to make Roth contributions generally, violates the provisions of the Code requiring that all eligible participants must be allowed to make the same election regarding catch-up contributions, or whether restricting catch-up contributions to only those participants whose prior year earnings do not exceed $145,000 is permissible.

For those plans that are not far along in implementation, and certainly, for those who have never offered a Roth contribution or Roth in-plan conversion approach, Plan Sponsors may choose to proceed with implementing some design features that move towards compliance. Introducing Roth contributions generally, including the acceptance of Roth amounts in rollover contributions and the ability of all participants to designate catch-up as Roth, may be viewed as plan enhancement before the mandate to require only Roth catch-up contributions for high-wage earners.

We will continue to provide updates on all forthcoming IRS guidance on this issue and other changes introduced by SECURE 2.0. 

If you have questions about this subject matter or any other employee-benefits-related question, members of the Jackson Lewis Employee Benefits Practice Group are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

On July 25, 2023, the tri-agencies of the Departments of Treasury, Labor, and Health and Human Services (the Departments) issued a compendium of guidance designed to facilitate compliance with the Nonquantitative Treatment Limitation (NQTL) comparative analysis requirements added by the Consolidated Appropriations Act, 2021 (CAA, 2021) as they relate to the Mental Health Parity and Addiction Equity Act (MHPAEA). The guidance signals that employer-sponsored group health plans will have some work to do to improve their mental health and substance abuse treatment provider networks, their data collection efforts to better evaluate the parity in care, and the production of sufficient NQTL comparative analysis reports. 

Provider Access

The guidance is massive and will take time for employers, insurers, and advisors to distill. But, it is clear the Departments have identified access to mental health and substance abuse disorder treatment as a root cause for what they describe as “a mental health and substance use disorder crisis that worsened during the COVID-19 pandemic.”  As noted in the preamble, “ensuring that people seeking mental health and substance use disorder treatment do not face greater barriers to access to benefits for such treatment is central to the fundamental purpose of MHPAEA.” 

To implement this purpose, the regulations require plans or issuers to collect, evaluate, and consider the impact of data on access to mental health and substance abuse benefits before imposing an NQTL in a care classification. Obtaining data has been one of the greatest challenges of the NQTL comparative analysis requirement. The Departments recognize this and specifically request comments on how best to ensure plans and issuers can obtain the information they need from all the entities involved in designing and administrating the plan in support of their MHPAEA compliance efforts. 

Special New Rule Focused on Network Composition

The preamble notes that “[a] key component of access is the availability of an adequate number of appropriate providers within a plan’s network.” Citing a Millman 2019 report that points to a growing disparity of in-network reimbursement rates for primary care providers versus those providing behavioral health care, the proposed regulations conclude that low rates coupled with the high demand for services are negatively impacting access to care. Suppose covered persons cannot access an in-network mental health or substance abuse disorder provider due to limited options, travel, scheduling challenges, or otherwise. In that case, they may not seek the care they need, with the resultant data showing a lack of parity with medical/surgical benefits. 

Therefore, the proposed regulations require that plans and issuers collect and analyze network adequacy data and provider reimbursement rates. Realizing plans and issuers may face significant challenges in ensuring their mental health and substance abuse disorder networks are not more restrictive than their medical/surgical networks, the Departments are soliciting comments in the proposed regulations and the accompanying Technical Release 2023-01P on ways to evaluate parity in networks, including the prospect of a potential enforcement safe harbor for plans and issuers that include data related to network composition in their comparative analyses.   

New NQTL Comparative Analysis Content Requirements. 

The guidance also builds on the 2020 Self-Compliance Tool to address specific content and delivery requirements related to the required NQTL comparative analysis and establishes minimum data collection requirements. In their July 2023 Report to Congress, the Departments again describe the failing grade they are giving the plans related to the NQTL comparative analysis requirements. From not including sufficient information in the initial report to waiting to start the comparative analysis when the investigation began, plans and issuers are not meeting expectations. 

The proposed regulations attempt to bridge this gap, describing specific data and information that is required to be included in the NQTL comparative analysis and specifying when and how the reports must be provided. This falls short of the safe harbor many hoped would be included in the implementing guidance, but the insight is generally welcome.  

Definitions. Examples. And Standards. Oh My!   

The 395 pages of proposed regulations also include countless definitions, examples, and guidelines. They shed light on what the Departments believe to be the problem areas. 

For example, there are specific examples addressing Applied Behavior Analysis (ABA) Therapy. If a plan excludes ABA therapy, a primary treatment for autism spectrum disorder, and that exclusion is separately applicable to autism spectrum disorder benefits and does not apply to any medical or surgical benefits in the same classification, the Departments believe this is a prohibited treatment limitation. 

The regulations are not yet the law. 

The regulations are proposed in form, and the Departments seek stakeholder comments that may result in minor or significant refinements. Employers, therefore, should simply begin to digest these vast resources with their advisors with a keen focus on their network providers. Again, access to mental health and substance abuse disorder care appears to be the number one driving force.

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Attracting and retaining the right people is a critical issue for many retailers, and the 2022 federal retirement plan reform (SECURE 2.0) can help.

SECURE 2.0 requires employers to enroll long-term, part-time workers in their 401(k) plan if they work at least 500 hours per year for at least two consecutive years and are 21 years old or older. Retailers were already facing challenges under the original SECURE Act when it was introduced with a three-year minimum service requirement.   More…

On July 17, the Internal Revenue Service (IRS) issued an advance version of Notice 2023-54 (the Notice) which will include transition relief for plan administrators in connection with the change in the required beginning date for required minimum distributions (RMDs) under §401(a)(9) of the Internal Revenue Code (Code) under §107 of the Setting Every Community Up for Retirement Enhancement Act of 2022 (SECURE 2.0). Plan administrators welcome this guidance as if it had big brown eyes, floppy ears, and a happily wagging tail.

Waiting For Your Puppy to Grow (Effective Date of Final Regs.  Extended)

The IRS previously issued Notice 2022-53, stating that final RMD regulations would not take effect until the 2023 distribution calendar year. The Notice extends that relief and provides, “Final regulations regarding RMDs under § 401(a)(9) and related provisions will apply for calendar years beginning no earlier than 2024.”

It’s OK to Have Accidents (Mischaracterized RMDs Can Be Rolled Over Until September 30, 2023)

Congress modified the RMD rules with the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) in 2019 and again with SECURE 2.0 in 2022. These two modifications changed the date an individual would need to take an RMD. However, due to the timing of the change in the law, some individuals born in 1951 unnecessarily took an RMD in early 2023, and the Notice provides relief to these individuals. Specifically, the Notice states that if a participant born in 1951 received a distribution in 2023 that was treated as ineligible for rollover because it was believed to be a required RMD, that participant has until September 30, 2023, to roll over that distribution.

Consistent Messaging is the Key to Successful Training (IRS – Take Note)

The IRS’s proposed regulations were misunderstood by some who thought that the 10-year rule would apply as the long-standing 5-year rule always had, so there would be no RMD due until the last year of the 5- or 10-year period following the specified event (the death of the employee, the death of the eligible designated beneficiary, or the attainment of the age of majority for the employee’s child who is an eligible designated beneficiary.)  To be clear, the 10-year rule does not allow for a 10-year delay in all cases; if the beneficiary is not an eligible designated beneficiary, annual RMDs are required throughout the 10-year period if the plan participant died on or after his required beginning date.

Conclusion

Compliance with the new rules will require careful analysis, plan amendment, and updated administration like a new puppy requires housebreaking, crate training, and constant supervision. Ultimately, both will provide the warm fuzzy feeling of a job well done.

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Transgender protections and rights in the workplace are currently the subject of much confusion.  This issue extends to employer-sponsored health plans.  Whether an employer-sponsored health plan must cover gender-affirming care is complicated and depends, in part, on whether the employer’s health plan is fully-insured or self-insured. 

Fully-Insured Plans

Fully-insured employer-sponsored health plans are subject to state insurance law and applicable federal law.  A fully-insured plan must provide coverage compliant with the coverage mandates of the state in which the insurance policy is issued.  At the time of this post, 24 states plus the District of Columbia have passed laws prohibiting transgender exclusions in insurance coverage.  An employer-sponsored health plan with a fully-insured policy written out of those states (or D.C.) should provide coverage for transgender services and gender-affirming care to the extent required under the applicable local insurance laws.

Self-Insured Plans

Unlike fully-insured plans, self-insured plans are not subject to state insurance laws.  Self-insured plans are subject to certain Federal laws that prohibit discrimination based on certain protected factors, including race, color, national origin, sex, and disability.  Over the last several years, the question of whether “gender identity” is a protected factor has been the subject of much debate and litigation. 

Section 1557 of the Affordable Care Act

Section 1557 of the Affordable Care Act (Section 1557) generally prohibits any health plan that receives certain types of Federal funding from discriminating based on race, color, national origin, sex, or disability.  In July 2022, the U.S. Department of Health and Human Services issued proposed guidance under Section 1557 (Proposed Rule).  The Proposed Rule specifies that Section 1557’s protections extend to discrimination based on gender identity.  Under the Proposed Rule, applicable health plans would be prohibited from categorically excluding coverage for transgender services.  Section 1557 and the Proposed Rule apply only to insurers and third-party administrators that receive Federal financial assistance, such as Medicare Part D subsidies for retiree coverage or as a result of marketing policies on a healthcare marketplace or exchange.  If finalized, the Proposed Rule could affect the design and administration of a fully-insured group health plan if the insurer or third-party administrator receives Federal funding. 

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act (Title VII) prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin.  In Bostock v. Clayton County, the Supreme Court held that an employer who terminates an employee because of sexual orientation or gender identity impermissibly discriminates against that employee “on the basis of sex” under Title VII.  The Bostock case focuses on employment termination.  However, Title VII also prohibits employment discrimination “on the basis of sex” regarding “compensation, terms, conditions, or privileges of employment,” including employer-provided benefits. 

In recent years plan participants who have been denied gender-affirming services under their employer-provided group health plans have, generally successfully, brought claims in Federal court alleging that the Bostock ruling prohibits employer-provided group health plans from categorically excluding coverage for gender-affirming care.  For example:

  • In Lange v. Houston County, the U.S. District for the Middle District of Georgia held that, under Bostock, Title VII prohibits the County’s health plan from categorically excluding gender-affirming care.  Lange is currently under appeal in the U.S. Court of Appeals for the Eleventh Circuit.  
  • In Kadel v. Folwell, the U.S. District Court for the Middle District of North Carolina, relying heavily on the Bostock ruling, found that the State of North Carolina violated Title VII’s anti-discrimination requirements by providing a health insurance plan for state employees and their dependents that categorically excluded coverage for treatments “leading to or in connection with sex changes or modifications.”

The law on categorical exclusions for gender-affirming care in self-insured employer-sponsored health plans continues to develop.  We expect the Supreme Court or Congress to issue definitive guidance soon.       

Action Items for Employers

Employers are facing conflicting information about coverage of transgender services.  Employers with fully-insured plans should contact their carrier to confirm the plan complies with local law.  For employers with self-insured plans, the path forward is less clear.  Still, those employers should continue to monitor the issue and work with the plan’s administrator and legal counsel to ensure the plan complies with the evolving law. 

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist.  If you have questions or need assistance, please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.

Thank you to Jackson Lewis summer associate, Jackie C. Graves for her help in developing this article.

High-stress, demanding retail positions where constant customer demands are front and center can leave employees feeling overwhelmed and burnt out, resulting in lower productivity and higher turnover for employers.

Increasing societal awareness of mental health issues, and a general push by employees to recognize their lives outside of the workplace, has fueled a growing call for retail employers to respond to the evolving workforce needs. Retail employees, particularly the younger generations, increasingly seek employers that provide non-traditional benefits as part of a comprehensive benefits program. Consequently, many retailers are prioritizing employee mental health and other wellness-related benefits. The availability of these benefits not only helps recruitment and retention, but it also shows the employer’s investment in the well-being of employees as people and can help companies establish themselves as an employer of choice. More…

As discussed in an earlier blog post, the SECURE 2.0 Act of 2022 (the Act) expanded the Employee Plans Compliance Resolution System (EPCRS), a comprehensive IRS program for correcting common qualified retirement plan failures.  Plan sponsors have three ways to correct mistakes under EPCRS: the self-correction program (SCP), the voluntary correction program (VCP), and the Audit Closing Agreement Program (Audit CAP). 

The Act requires the IRS to update EPCRS consistent with the Act no later than December 29, 2024.  On May 25, 2023, the IRS issued Notice 2023-43 to provide interim guidance on the expansion of EPCRS. 

The Act significantly expands the types of retirement plan failures that can be self-corrected under SCP.  Many plan sponsors prefer SCP over the other programs because it does not involve the IRS or a fee.  Under the expanded program, plan sponsors may self-correct an “eligible inadvertent failure” (EIF) unless the plan or plan sponsor is under examination by the IRS and the plan sponsor has not demonstrated a specific commitment to self-correct it.  However, insignificant failures may be self-corrected even if the plan or plan sponsor is under examination and the plan sponsor has not taken action to correct the failure.  The expanded program is not limited to failures that occurred on or after the Act was adopted; failures that occurred before December 29, 2022, may also be self-corrected under the expanded EPCRS.

Until EPCRS is formally updated, plan sponsors may rely on the Notice and self-correct failures if these conditions are met:

  • The plan sponsor has actively pursued action to self-correct the failure before the plan or plan sponsor is under examination (except for insignificant failures, which may be self-corrected while the plan is under examination).
  • The failure is self-corrected by the last day of the 18th month following the date the failure was identified.  Except for failures related to employer eligibility failures, which must be corrected by the last day of the 6th month following the date the failure was identified.
  • The failure is not egregious, does not directly or indirectly relate to an abusive tax avoidance transaction, and does not relate to the diversion or misuse of plan assets.
  • The self-correction satisfies EPCRS’ provisions for self-correction, except these requirements in the current EPCRS procedure which no longer apply when self-correcting an EIF:
    • The plan must have a favorable determination letter.
    • The prohibition of self-correction for demographic failures and employer eligibility failures.
    • The prohibition of self-correction of certain loan failures.
    • The provisions relating to self-correction of significant failures that have been substantially completed before the plan or plan sponsor is under examination.
    • The requirement that significant failures must be completed or substantially completed by the last day of the third plan year following the plan year in which the failure occurred.

    However, the following are some, but not all, failures that may not be self-corrected until EPCRS is formally updated:

    • A failure to initially adopt a written plan.
    • A failure in an orphan plan.
    • A significant failure in a terminated plan.
    • A demographic failure that is corrected using a method other than a method in Treas. Reg. §1.401(a)(4)-11(g).
    • Plan amendments to conform the terms of the plan to the plan’s past operations if such amendment is less favorable for a participant or beneficiary than the original plan terms.
    • A failure in an ESOP that involves section 409 (other than plan disqualification).

    What Plan Sponsors Should Do:

    • Identify and correct errors before the IRS discovers them.
    • Establish practices and procedures designed to promote and facilitate compliance with IRS requirements.
    • Before filing a VCP application with the IRS, determine whether the failure qualifies for self-correction under the expanded program.
    • Keep adequate records showing when the failure was identified, the participants affected, and how and when the failure was corrected.

    Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.