Colleges and universities historically have provided graduate student employees (e.g., teaching assistants) with a stipend or reimbursement to help defray (or even fully cover) the cost of their medical coverage under the student health plan. Competing guidance under the Affordable Care Act (“ACA”) from the Departments of Health and Human Services (“HHS”), Labor (“DOL”), and the Treasury (collectively, the “Departments”) will soon make such arrangements quite problematic.

Four years ago, HHS released regulations clarifying that student health insurance is a form of individual market coverage (rather than a group health plan). This was meant in part to ensure that students enrolled in these plans benefit from consumer protections applicable to individual market coverage under the ACA. About a year later, the Departments issued guidance that effectively prohibits employers from using a health reimbursement arrangement (an “HRA”) to reimburse employees for individual market coverage. The goal there was to prevent employers from incentivizing employees to opt for public exchange coverage over an employer group health plan. The result? Any school that provides a stipend to student employees enrolled in a student plan is considered to be using an HRA to reimburse individual market coverage, and could be subject to penalties.

Such penalties are severe. This type of HRA would be considered its own group health plan, and thus would be subject to the ACA’s market reforms, which include, among other things, prohibitions on annual and lifetime limits and on cost-sharing for preventive services (each of which this type of HRA would inherently fail to satisfy). Such a failure can result in a penalty of up to $100 per day per employee under Internal Revenue Code §4980D.

While none of the above-described guidance was likely intended to keep schools from being able to offer these healthcare stipends to their graduate student employees (a point which an IRS representative informally confirmed to Jackson Lewis shortly after this clash in the guidance came to the attention of practitioners), the Departments appear to have doubled down on their position with the release of Notice 2016-17 and corresponding guidance from the DOL and HHS. This most recent guidance states that schools must re-structure their graduate student benefits and provides a period of transition relief by indicating that no penalties will apply for plan years beginning prior to January 1, 2017.

On whether there has been any talk of extending or making permanent the transition relief, given the unintended consequences of the prior guidance to graduate student subsidies, an IRS representative indicated to Jackson Lewis that the IRS was not aware of any such talks, but pointed out that the problem is a “three agency question” and that another Department could propose a permanent fix.

In the meantime, schools continue wrestle with the issue. Solutions under consideration include allowing graduate student employees to participate in the school’s employee group health plan (under the ACA, an employer may provide a stipend/reimbursement through an HRA that is integrated with the employee group health plan) or offering a cash bonus that, at the student’s discretion, can be put toward the cost of healthcare.

When an ERISA plan provides the plan administrator with discretion to interpret the terms of the plan, the administrator’s claims and appeals decisions are generally reviewed by courts under a lenient standard of review such as “abuse of discretion.” In such cases, courts generally will not upset the plan administrator’s decision absent a clear error.

Recently, the United States Court of Appeals for the Ninth Circuit decided the case of Estate of Barton v. ADT Security Services Pension Plan, No. 13-56379 (April 21, 2016), that threatens to through a wrench in the standard of review analysis. Barton presented what appears to be a factually difficult situation. The plaintiff had not worked for the company in decades. The plan administrator had no record of the plaintiff being entitled to pension benefits, but the plaintiff presented records that showed prior employment with company-related entities. According to the plan administrator, however, the plaintiff’s records failed to establish that those entities participated in the pension plan, or that he had earned enough years of continuous service to be entitled to a benefit. Consequently, the plan administrator denied his claim. The district court applied an abuse of discretion standard and found in favor of the plan.

The 9th Circuit reversed and remanded. The majority opinion held that “where a claimant has made a prima facie case that he is entitled to a pension benefit but lacks access to the key information about corporate structure or hours worked needed to substantiate his claim and the defendant controls such information, the burden shifts to the defendant to produce this information.” The majority noted that its decision would “not require defendants to produce records listing entities not covered by their pension plan,” but rather only information about which companies did participate. The majority expressed its concern that holding otherwise would create a “Kafkaesque regime where corporate restructuring can license a plan administrator to throw up his hands and say ‘not my problem.’”

The dissent, however, argued that the majority’s decision went “off the rails” and created a “one-off burden-shifting rule” that contravened existing Supreme Court precedent holding that courts should not make “ad-hoc exceptions” to the abuse of discretion standard. According to the dissent, the administrative record showed that the plan administrator’s decision was not clearly erroneous.

It is unclear at this point how Barton will affect other cases in the 9th Circuit. It is possible that courts will read the majority’s holding narrowly, and only apply the new burden-shifting rule in circumstances very similar to the facts in Barton. It is also possible, however, that Barton may be used as a tool to get around the abuse of discretion standard in many cases where there is a lack of clear historical information and the facts appear unfair to the plaintiff. Plan administrators in the 9th Circuit should keep a close eye on how this progresses.

Employers who cease contributing to an ERISA multiemployer pension plan are liable for their allocable share of any underfunding, or “withdrawal liability.”

For a variety of reasons, withdrawal liability has become both prevalent and significant. Indeed, the Pension Benefit Guaranty Corporation (the federal agency tasked with the enforcement and regulation of the withdrawal liability rules) has estimated that approximately 10 percent of the 1,400 multiemployer pension plans face insolvency in the next 10 years to 15 years. Legislation to address this looming multiemployer pension plan crisis includes the Pension Protection Act of 2006 (“PPA”).  To read my full article, click here.

The Supreme Court in a unanimous opinion remanded Zubik v. Burwell — and the six cases consolidated with Zubik — back to the Courts of Appeals to rule on the contraceptive opt-out notice provisions.  The Court directed the lower courts to consider the new information presented in the parties’ post-oral argument briefs ordered by the Court on March 29.  The petitioners in each of these cases are religiously-affiliated nonprofit organizations which are challenging the requirement that notice be given to the government of religious objections to providing no-cost contraceptive coverage under employee health insurance plans, as required by the Affordable Care Act (“ACA”) and its regulations.

In the ruling, the Court stated that the parties had agreed in their briefs to a regulatory compromise solution originally suggested by the Court in its March 29 order. The high court’s workaround would permit an objecting religious nonprofit employer to contract with their insurance provider for a health insurance plan that excludes contraceptives.  The insurer, in turn, would provide the contraceptive coverage directly to the nonprofit organization’s employees, with no further action or notice required from the organization.

The Court further provided that until the lower courts rule on the cases, the government could consider the petitioners as having provided adequate notice of their religious objection, and could proceed to provide contraceptive coverage at no cost to the nonprofit’s employees through their insurance provider in accordance with the ACA and its regulations. The Court’s ruling also stayed the imposition of any fines the petitioners might face for failing to comply with the notice requirements.

Additionally, pending the lower court rulings, the government can continue to act on notices of religious objection provided by other religious nonprofits, by providing no-cost contraceptive coverage through the nonprofits’ insurance providers in accordance with the ACA regulations.

For religious nonprofits who object to providing contraceptive coverage to their employees, but who are not among the petitioners or among the petitioners in 13 similar cases that the high court has not yet agreed to hear, the likely best approach at this point would be to provide appropriate notice of religious objection to the government in accordance with current ACA regulations. The risk, however, of incurring penalties as a result of noncompliance may not be great, given that the high court appears to be championing a compromise solution.

Background

Sponsors of preapproved defined contribution retirement plans were generally required to sign new plan documents on or before April 30, 2016 that incorporated changes required by the Pension Protection Act of 2006 (PPA). Defined contribution plans include profit sharing plans, 401(k) plans, and money purchase pension plans.  Preapproved plans are plan documents that have been approved by the Internal Revenue Service (IRS) and are sold to plan sponsors through law firms, banks, brokers and other financial institutions. 

A prototype plan is a type of preapproved plan.  It consists of two parts: an adoption agreement and a basic plan document.  The basic plan document contains the non-elective provisions applicable to all adopting employers.  The adoption agreement contains all of the options that can be selected by an adopting employer in a “check the box” format.  A volume submitter plan is another type of document that has been preapproved by the IRS.  Volume submitter documents sometimes consist of an adoption agreement and basic plan document, although many take the form of a self-contained single document that only reflect the provisions that an adopting employer has selected.

Effect of Failure to Timely Adopt New Plan

If you are a plan sponsor of a defined contribution retirement plan that is on a preapproved document, and you did not sign a restated plan document as required on or before the April 30, 2016 deadline, your retirement plan is technically no longer entitled to tax-favored treatment.  Losing tax-favored treatment of your plan could reduce your deduction for contributions paid to the plan, and your employees could be prevented from accumulating retirement savings.  In addition, while not required by the IRS or the Internal Revenue Code, the financial institution holding the plan assets could refuse to make distributions. If they have already made distributions, the distributions could potentially be taxable and not eligible for tax-free rollover.

What Can You Do?

You will have to go to the IRS in order to correct this.  The correction can be done by filing a submission for a Voluntary Correction Program (VCP) compliance statement with the IRS as provided under the IRS Employee Plans Compliance Resolution System (EPCRS).  There is a user fee associated with VCP submissions.  Typically, the applicable user fee is determined using the number of participants in a plan.  The user fee ranges from $500 to $15,000 depending on how many participants are in the plan.  A recently released VCP submission kit indicates that if a plan sponsor sends the VCP submission to the IRS by April 29, 2017, the general user fee is reduced by 50% (so long as the failure to adopt the PPA restated document is the only failure of the submission.  This VCP submission kit is designed to help plan sponsors who missed the April 30th deadline.  The new VCP submission kit can be found at https://www.irs.gov/retirement-plans/vcp-submission-kit-failure-to-adopt-a-new-pre-approved-defined-contribution-plan-by-the-april-30-2016-deadline. 

If your submission is approved, the tax-favored status of your plan will be restored.  Your Employee Benefits counsel can advise as to the program, and assist with preparation of the required IRS forms.  You should reach out to your Benefits Counsel as soon as possible to discuss this process.

 

In the aftermath of the rejection of the Central States Southeast and Southwest Areas Pension Plan (“Central States”) application to reduce core benefits by Treasury Special Master Kenneth Feinberg, it is critical that contributing employers to multi-employer pension funds recognize the harsh reality that help to those funds will not be forthcoming from the government in at least the near term.

Although Feinberg was careful to emphasize that the rejection of the Central States application was limited to Central States and that pending applications by other funds would be considered independently, the text of the May 6, 2016 rejection letter belies that statement.

Of the three criteria which Central States did not meet, only one could possibly be remedied; that Notices must be written so as to be understood by the average plan participant.  Ironically, the majority of plan participants who received drafts of the Notices in a sampling before Central States filed its application stated that it was understood!

Particularly troublesome was the finding that the proposed benefit suspensions were not reasonably estimated to allow Central States to avoid insolvency within the projected 10 years.  It did not take the plan “off the path of insolvency.”

Treasury criticized the assumptions used in the actuarial projections declaring that they contained a bias because they were “significantly optimistic.”  Specifically, the 7.5% annual investment rate of return assumptions failed to adequately take into account relevant current economic data and exceeded longer-term expected rates of return.

Rather, Treasury opined that the estimated 10- year average rate of return should have been 6.43% reflective of the Horizon Survey of investment forecasts.  However, adoption of that rate would have resulted in even deeper reductions in core benefits to participants.

Significantly, a review of several other multi-employer funds reveals that an investment return assumption of 7.50% is not uncommon.  Based on Treasury’s “scrutiny,” it seems probable that the other pending applications will suffer a similar fate to Central States.

Although there have been cries seeking a quick passage of some form of legislation (not fully articulated) to help funds such as Central States and their participants, the current Congress is unlikely to do so in an election year.

On May 12, 2016, the United States District Court for the District of Columbia issued an opinion in U.S. House of Representatives v. Burwell et al., No. 14-1967 (D.D.C. May 12, 2016), enjoining the federal government’s use of unappropriated monies to fund reimbursements to health insurers under Section 1402 of the Patient Protection and Affordable Care Act (the “ACA”).  Section 1402 of the ACA provides cost-sharing reductions (e.g., reductions in deductibles, coinsurance and copayments) to certain people who obtain health insurance through the government exchanges.  Section 1402 also provides that the insurer is supposed to be reimbursed by the government for the cost-sharing reductions it gave to those people.

The opinion did not invalidate Section 1402 or rule that insurers cannot be reimbursed at all. However, the Court ruled that Congress had not appropriated federal money for those reimbursements, and it would be unconstitutional for those reimbursements to continue without a Congressional appropriation.  The injunction has been stayed pending appeal, so it remains to be seen what affect this case will have in the end.  If it’s upheld, it could have major ramifications for insurance companies and individuals who rely on cost-sharing reductions.  Insurers may exit the exchange market, refuse to provide cost-sharing reductions, or sue the government to get reimbursed for the cost-sharing reductions.

The decision, however, has little effect on employers that sponsor group health coverage. As you may be aware, the ACA provides that employers with 50 or more full time employees must pay penalties if they (i) fail to provide employees with minimum essential coverage or (ii)  provide coverage that is unaffordable or does not meet a minimum actuarial value.  Those penalties only kick in, however, if a full-time employee goes to the exchange and gets coverage along with a premium tax credit and/or cost-sharing reduction.

This case does not affect an individual’s ability to go to the exchange and get a tax credit or cost-sharing reduction. It only affects an insurer’s ability to get reimbursed for providing a cost-sharing reduction.  So, if one your employees goes to the exchange and gets a tax credit or cost-sharing reduction, your company will still be on the hook for penalties.

For assistance on the ACA and what it means to your company, please contact your Jackson Lewis preferred attorney or one of the members of our Health Care Reform Team.

Just one month ago the U.S. Department of Labor released its long awaited final rule re-defining who is considered a “fiduciary” of an employee benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (the Code). The final rule (which can be found here) targets those that give investment advice to a plan, its participants or its beneficiaries (including IRAs and 401(k)s); and, as a result, effectively expands the group of individuals who may be considered a fiduciary. Because of the definition’s expansion, a plan sponsor who may have freely provided recommendations and information in the past could now be on the hook as a fiduciary for this same behavior. The final rule is an extensive read. However, below are a few key points that may help provide a better understanding of how the April 10, 2017 final rule applicability date may affect plan sponsors in particular.

1. What is considered “investment advice?”

The final rule and the definition of a fiduciary hinges on this very point. Providing investment advice is what differentiates a non-fiduciary from a fiduciary under the new regulation. However, investment advice must be provided in the form of a recommendation. A recommendation is a “communication that, based on its content, context, and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.” Definition of the Term “Fiduciary”; Conflict of Interest Rule, 81 Fed. Reg. 20946, 20997 at § 2510.3-21(b)(1) (April 8, 2016)

Specifically, a person provides investment advice if they offer the following types of advice for a fee or other form of compensation (whether direct or indirect): (i) recommendations involving the advisability of acquiring, holding, disposing of, or exchanging, securities or other investment property, or a recommendation as to how securities or other investment property should be invested following their rollover, transfer or distribution from the plan; (ii) recommendations involving the management of securities or other investment property, including investment policies/strategies, portfolio composition, selection of investment account arrangements, selection of other persons to provide investment advice or investment management services, or recommendations with respect to rollovers, distributions or transfers from the plan (including whether, in what amount, in what form, and to what destination such a rollover, transfer or distribution should be made).

However, there are a few exceptions to the broad reach of providing investment advice. In particular, plan fiduciaries that are independent of the adviser and have financial expertise are identified as an exception in the final rule. Additionally, the marketing of retirement plan platforms (without regard to the plan’s individualized needs and with confirmation that the desire is not to provide impartial investment advice or serve in a fiduciary capacity) and providing responses to RFPs are not considered investment advice.

2. Investment Advice vs. Investment Education.

This much has not changed in the final rule: investment education can still be provided by service providers and plan sponsors without triggering fiduciary status, provided certain conditions are met. Investment education is considered non-fiduciary when it consists of providing the following: (i) information and materials that describe investments or plan alternatives without specifically recommending particular investments or strategies; (ii) general information about a plan; (iii) general financial, investment and retirement information; (iv) information and materials that provide a plan fiduciary, participant or beneficiary with models of asset allocation portfolios of hypothetical individuals with different time horizons; and (v) interactive investment materials (such as worksheets, software, questionnaires, etc. that generally provide the means to estimate and evaluate future retirement income needs and assess the impact of different allocations on that income).

However, it is worth noting that asset allocation models and interactive investment materials that identify specific products or investment alternatives must meet additional requirements as well. Primarily, they may only identify designated investment alternatives offered by the plan that are overseen by a fiduciary that is independent from the person who developed or marketed the investment alternative or distribution option. Additionally, other designated investment alternatives, if any, offered under the plan that have similar risk and return characteristics must be identified, the similar characteristics must be described, and participants must be notified where they can obtain additional information regarding the designated investment alternatives.

3. What about a plan sponsor’s employees who provide advice, are they fiduciaries?

Generally speaking, no. A major component of a recommendation being deemed “investment advice” is the receipt of a fee or other form of compensation for that advice. Because employees of plan sponsors are typically paid in the average course of their employment, any advice which they provide generally will not make them an investment advice fiduciary. Therefore, providing information to participants about the plan and distribution options is typically fine, assuming of course that the employee does not receive any payment outside of their normal compensation for work performed.

4. So, what now?

Under the final rule, many common practices are now considered investment advice. Therefore, more and more advice issued to participants will now invoke fiduciary status. Because of the expansion of the fiduciary definition, employers and plan sponsors are encouraged to review their policies and procedures to ensure that any information provided does not cross over into what is deemed “investment advice for a fee,” thus rendering the advisors a fiduciary.

In a case of first impression, the United States Circuit Court of Appeals for the Tenth Circuit held that work performed by a non-union company acquired after a construction industry employer ceased contributing to a multiemployer pension plan (MEP) triggered withdrawal liability.  The case, Ceco Concrete Construction, LLC v. Centennial State Carpenters Pension Trust, Nos. 15-1021, 15-1190 (10th Cir. May 3, 2016), should be paid close heed by unionized construction companies.

The employer was a signatory to a collective bargaining agreement obligating the company to make contributions to a MEP. This obligation ceased when the CBA expired on April 30, 2010.  The company then acquired a non-union construction company and resumed operations in the CBA’s jurisdiction on a non-contributory basis.

The MEP determined that this resumption triggered withdrawal liability. Under ERISA’s mandatory arbitration regime, the arbitrator (and subsequently the district court) found for the employer.

An employer who withdraws from a MEP is liable for its allocable share of underfunding (“withdrawal liability.”) Withdrawal generally occurs when an employer permanently ceases to have a contribution obligation or permanently ceases covered operations.  Under a special rule applicable to “building and construction industry” employers, however, withdrawal does not occur unless such employer continues to perform on a non-contributory basis (or resumes within 5 years) work in the collective bargaining agreement’s jurisdiction for which contributions were previously required.

Under the applicable definition of “employer”, all trades or businesses which are under common control (a “control group”) are treated as a single employer. The question before the Court was whether the control group must be determined when the employer ceased its obligation to contribute (April 2010) or when the control group triggers withdrawal liability by resuming covered work (October 2010, following the acquisition of the non-union company).

Both the arbitrator and the district court held that the control group was determined on the date the obligation to contribute to the plan ceased, and that the non-contributory work performed by the after-acquired non-union company did not therefore trigger withdrawal liability. The 10th Circuit, however, reversed.

The Court’s holding was rooted in several factors, including: (i) the definition of “employer”, which the Court found included both present and future control group members; (ii) statutory language indicating that the control group must be determined when a withdrawal is triggered, which occurs upon the resumption of CBA-covered work on a non-contributory basis; and (iii) the remedial purposes of the withdrawal liability rules (to protect pension beneficiaries) and the definition of employer (to prevent employers from avoiding their withdrawal liability obligations by fractionalizing operations between entities). The Court also drew upon recent decisions in the First and Seventh Circuits which construed the term “employer” broadly.

Unionized construction employers should now closely scrutinize acquisitions within jurisdictions where the employer had previously contributed to a MEP: non-contributory work performed by an after-acquired entity will (at least within Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) likely trigger withdrawal liability.

For the past several months, we have been reporting on the application filed by the Central States Southeast and Southwest Areas Pension Fund  (“Central States”) to the Department of Treasury to reduce “core” benefits to participants.    This extraordinary remedy is permitted by the  Kline-Miller Multiemployer Pension Reform Act of 2014 (“Kline-Miller Act”).

Public hearings conducted by Special Master Feinberg have revealed that the proposed cuts can be between 39.9% and 60.7%.

Special Master Feinberg must decide by May 7th whether to approve the reductions to the Fund which has approximately 400,000 participants.

There has been opposition expressed by retirees as well as retiree groups. A group of fifty United Senators has also written to the Secretary of the Treasury indicating their concern with the proposed reductions.

As the multi-employer pension fund world awaits a decision, a fifth multi-employer pension fund, the Iron Workers Local Union 16 Pension Fund located in Baltimore, Maryland filed its application to the Treasury Department to reduce core benefits.

These actions highlight the risk that employers contributing to multi-employer funds are now facing.  It is not beyond the realm of possibility that the burden of providing the promised benefits will fall even more heavily upon employers.

We suggest that employers become proactive in considering strategies to exit these plans in future negotiations.

Clearly the situation will not get better.