With the end of the COVID-19 “outbreak period” in sight, employers will revert back to pre-pandemic deadlines and timeframes applicable to special enrollment rights, COBRA elections, COBRA premium payments, and claims processing. In addition to the usual second quarter compliance deadlines, a new requirement is added to report prescription and medical plan costs to CMS (commonly referred to as RxDC), which will be an annual task going forward.
We’ve continued, for this second quarter reminder, to separate our entries into three categories: standard federal deadlines, state and local deadlines, and pandemic-related reminders. Within each category we follow our typical chronological approach. Deadlines may or may not be applicable to your group depending on the employer and plan characteristics.
Here are potential action items for late March and the second calendar quarter of 2023:
STANDARD FEDERAL DEADLINES
March 31 - E-file with the IRS Forms 1095-C and/or 1095-B, with Form 1094-C and/or 1094-B.
Employers, except those filing a small enough number of returns to file them on paper (see below), must e-file with the IRS copies of Forms 1095-C (or -B, as applicable) prepared by the employer, along with one or more Forms 1094-C or 1094-B transmittal documents.
E-filing is accomplished through the IRS’ AIR (opens a new window) (Affordable Care Act Information Returns) platform. A 30-day extension of the March 31 e-filing deadline is available for the asking via Form 8809, submitted through the IRS’s FIRE (opens a new window) (Filing Information Returns Electronically) platform.
Employers filing fewer than 250 Forms 1095-C or 1095-B have the option to file on paper. Note that in 2024, to count the number of returns, employers are required to aggregate the number of different returns they file (1095-C/B, 1094-C/B, and W-2) and if they file 10 or more of these returns combined, then Forms 1095/4-C or 1095/4-B must be filed electronically.
The original due date was March 1 (the first business day after the standard Feb. 28 deadline), but an automatic 30-day extension was available through the IRS’s FIRE online transmittal system. The March 31 filing deadline is now permanent.
April 14 - Distribute reminder to participants regarding availability of HIPAA privacy notice (Recommended action).
This obligation applies to sponsors of ERISA and non-ERISA health plans, where the plan is self-insured, or insured but the sponsor is “hands on” the plan’s protected health information.
This reminder is due every third year. Most plan sponsors with HIPAA privacy and security obligations moot the reminder duty by supplying a HIPAA privacy notice regularly (e.g., as part of initial and open enrollment packets).
This notice may be provided electronically in accordance with specific requirements. See our publication, Electronic Distribution of Welfare Benefit Plan Required Documents.
April 15 - Make final HSA contributions toward 2022 HSA limits and/or make HSA corrections related to 2022 calendar year.
Applies to employers who provide HSA enrollment. Employers and individuals have until the individual's tax filing deadline to make HSA contributions and corrections related to the tax filing year.
April 30, May 31 and June 30 - File Form 5500 for plan years ending Sept. 30, Oct. 31 and Nov. 30, 2022, respectively.
ERISA plans must file a Form 5500 at least annually unless the plan is exempted from the filing requirement. Filing is accomplished electronically through the Department of Labor’s (DOL) EFAST (opens a new window) portal.
Form 5500 extensions are available by filing a Form 5558 with the DOL on or before the filing’s initial due date. Filing Form 5558 allows the plan up to an additional 2½ months to complete the filing.
June 1 - Submit prescription/medical plan cost reporting to CMS (RxDC).
Applies to all employers. The Consolidated Appropriations Act requires group medical plans to file a report with CMS reflecting a variety of cost and other medical data with respect to the group health plans’ prescription drug and other benefits. Does not apply to excepted benefits.
The filing is completed electronically through the CMS Enterprise Portal. If the employer plan sponsor is filing any part of the filing, the employer will need to establish a HIOS account. We suspect third party administrators and/or pharmacy benefit managers contracted to provide services to the group health plan will assist and/or submit filings on behalf of the group health plan.
Note, the first reports reflecting 2020 and 2021 plan information were due Jan. 31, 2023 (with CMS provided grace period from Dec. 27, 2022), For reference years 2022 and later, the reporting is due the following June 1, annually.
STATE AND LOCAL DEADLINES
March 31 - Submit coverage statements to the New Jersey Division of Revenue and Enterprise Services.
Applies to employers who provided medical coverage to New Jersey residents in 2022.
Employers that provided self-insured coverage to New Jersey residents during 2022 must file with the Division of Revenue and Enterprise Services copies of the IRS Forms 1095-C (with respect to such residents) that the employer filed with the IRS for 2022. The state does not require, but will accept, the employer’s Form 1094-C submitted to the IRS if it is included in the same file. Although New Jersey will accept the same sort of coverage information on Forms NJ-1095, employers will typically want to simply submit copies of the forms they filed with the IRS. The self-insured employer’s Forms 1095-C must have Part III completed (showing months of coverage, if any, under the plan), to comply with New Jersey requirements.
Employers that provided insured coverage to New Jersey residents during the prior year are not required to file the required coverage information with the Division of Revenue and Enterprise Services if the insurer files it.
March 31 - Submit coverage statements to the Rhode Island Department of Revenue, Division of Taxation.
Applies to employers who provided medical coverage to Rhode Island residents in 2022.
Employers that provided self-insured coverage to Rhode Island residents during 2022 must file with the Department of Revenue, Division of Taxation, copies of the IRS Forms 1095-C (with respect to such residents) that the employer filed with the IRS for 2022. Although Rhode Island will accept the same sort of coverage information on an equivalent statement, employers will typically want to simply submit copies of the forms they filed with the IRS.
Employers that provided insured coverage to Rhode Island residents during the prior year are not required to file the required coverage information with the Department of Revenue, Division of Taxation, if the insurer files it.
April 30 - Submit Forms 1095-C and/or 1095-B, with Form 1094-C or 1094-B, to Washington D.C. Office of Tax and Revenue.
Applies to employers who provided medical coverage to District of Columbia residents in 2022.
Employers that provided medical coverage to at least 50 full-time employees, including at least one District resident, during 2022 must file with the Office of Tax and Revenue copies of the Forms 1094-C and 1095-C, or Forms 1094-B and 1095-B, that the employer filed with the IRS with respect to any employee for whom the employer withholds D.C. taxes, and to any employee who has a mailing address in D.C., whether or not the employer withholds and reports D.C. taxes.
April 30 - Submit Forms 1095-C and/or 1095-B, with Form 1094-C or 1094-B, to Washington D.C. Office of Tax and Revenue.
Applies to employers who provided medical coverage to District of Columbia residents in 2022.
Employers that provided medical coverage to at least 50 full-time employees, including at least one District resident, during 2021 must file with the Office of Tax and Revenue copies of the Forms 1094-C and 1095-C, or Forms 1094-B and 1095-B, that the employer filed with the IRS with respect to any employee for whom the employer withholds D.C. taxes, and to any employee who has a mailing address in D.C., whether or not the employer withholds and reports D.C. taxes.
April 30 - File annual San Francisco HCSO reporting form for the prior calendar year.
Applies to all employers subject to the San Francisco Healthcare Security Ordinance.
Note: Employees who telework within the limits of San Francisco will be covered employees for purposes of this rule.
March 31 - Submit Forms 1095-C and/or 1095-B, with Form 1094-C or 1094-B, to the California Franchise Tax Board.
Applies to employers who provided medical coverage to California residents for the previous calendar year.
Employers that provided self-insured coverage to California residents during the previous calendar year must file with the Franchise Tax Board copies of the IRS Forms 1095-C (with respect to such residents) that the employer filed with the IRS for 2022, along with the employer’s Form 1094-C filed with the IRS.
Employers that provided insured coverage to California residents during the prior year are not required to file the required coverage information with the Franchise Tax Board, if the insurer files it.
Filing must be made electronically if the employer is submitting at least 250 of the same forms.
The deadline for filing this information is March 31, though penalties will not be assessed for filing by May 31.
PANDEMIC-RELATED REMINDERS – OUTBREAK PERIOD REQUIREMENTS
In April 2020, in February 2021, and again in February 2022, federal authorities issued guidance under which welfare benefit plans are required to suspend the running of certain action periods related to COBRA elections and premium payments, HIPAA special enrollment requests, and submission of claims, appeals and requests for third-party review of denied medical claims. The disregarded time period is called the “outbreak period.” In January 2023, President Biden announced that the Public Health Emergency and the COVID-19 National Emergency will end on May 11, 2023, which will bring an end to the outbreak period. This now means that any affected action period (e.g., the 60 days a COBRA qualified beneficiary must elect COBRA after the plan sends the COBRA election packet) is suspended until the earlier of:
The date that is 12 months after the date the suspension began (although it is unclear whether, with respect to COBRA premium payment due dates for example, each monthly due date is extended for a year after the extension applicable to the month before), and
The date that is 60 days after the May 11th end of the presidential emergency (e.g., July 10, 2023).
The following disclosures relate to this outbreak period guidance.
As soon as practicable, if required - Alert individuals to the impending loss of protections, benefits or rights under a plan due to expiration of “outbreak period” protections, and provide notice of other healthcare coverage options, such as ACA marketplaces.
Federal “outbreak period” guidance recommends, where plan fiduciaries know, or should reasonably know, that the end of the relief provided under that guidance may cause a participant or beneficiary to lose protections, benefits or rights under the plan, that the administrator or other fiduciary should consider affirmatively sending a notice regarding the end of the individual’s relief period and reminding the individual of the availability of healthcare coverage in an ACA marketplace. Including with such notice the standard federal marketplace notice, which typically is provided within 14 days of new hire, should be adequate for this latter purpose.
Various times - Adjust COBRA election and premium payment, HIPAA special enrollment request, and plan claim, appeal and request for third-party review due dates.
To accommodate and comply with the federal “outbreak period” guidance, plan administrators will need to adjust the running of relevant action periods and deadlines with respect to affected participants and beneficiaries.
See our original alert (opens a new window) from April 2020 and our updated alert (opens a new window) from March 2021 for more information.
Various times - Provide ERISA-related notices and disclosures.
Federal “outbreak period” guidance gave plan administrators leeway, where that leeway is necessary, to provide ERISA-related notices and disclosures (e.g., COBRA election packets) to plan participants and beneficiaries later than would otherwise be required, as long as the administrator provides the notices and disclosures as soon as practicable. Administrators are also granted wider latitude to provide these notices and disclosures via email or a continuously available website. See our alert (opens a new window) for more information.
It seems unlikely, this late into the pandemic, that tardy notices and disclosures will be acceptable to federal regulators.
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