Time flies, and we are not quite sure how 2023 is already halfway over…but yet here we are, which means it’s time for the third quarter deadline reminder!
The year 2023 has brought additional changes and compliance hurdles, including the end to the 3-year-long COVID-19 pandemic, and with it comes the end to the infamous “outbreak period” as of July 10, 2023. This means that plan sponsors have additional notice and disclosure obligations to plan participants and qualified beneficiaries regarding the end of the extended deadlines for COBRA election and premium payments as well as the HIPAA special enrollment due dates. These obligations are in addition to the ongoing annual compliance deadlines.
We have summarized below the key reporting and disclosure obligations for the third calendar quarter of 2023.
For this third quarter reminder, we've continued 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 employer and plan characteristics.
Here are potential action items for the third calendar quarter of 2023:
STANDARD FEDERAL DEADLINES
July 31 - Submit PCORI tax
The PCORI tax is applicable to insured and self-funded plans, but the plan sponsor is responsible for the tax only with respect to self-funded plans. The calculation is $2.79 per covered life for plan years that ended Jan. 1, 2022 – Sept. 30, 2022, and $3.00 per covered life for plan years that ended Oct. 1, 2022 – Dec. 31, 2022. The payment for all plan years ending in 2022 is due July 31, 2023.
The fee does not apply to most “excepted benefits” or to health reimbursement arrangements (HRAs) where the HRA and associated medical plan are self-insured and have the same plan year.
The PCORI tax may NOT be paid with ERISA plan assets in most cases (there is an exception for certain multiemployer plans); it is the responsibility of the employer or plan sponsor. The tax is submitted with and reported on IRS Form 720 (opens a new window) for the second calendar quarter, under Part II of that Form.
For more details, see our recent alert (opens a new window) on the PCORI filing responsibility for 2023.
July 31 - File Form 5500 for the plan year ending Dec. 31, 2022 (Unless extension is obtained)
ERISA plans with a calendar year plan generally must file Form 5500 by July 31 annually unless the plan sponsor obtains an extension.
This applies to all calendar year ERISA plans unless otherwise exempted. Filing is completed electronically through the Department of Labor’s (DOL) EFAST2 portal. More information on how to file electronically can be found here (opens a new window).
Welfare plans (other than MEWAs) that are fully insured, unfunded, or a combination of both are excused from filing if they have fewer than 100 participants covered on the first day of the ERISA plan year.
Form 5500 extensions are available by filing Form 5558 with the DOL on or before the filing’s initial due date. Filing Form 5558 can allow the plan up to an additional 2 ½ months to complete the filing.
Sept. 30 (or Dec. 15 if Form 5500 is filed under an extension) - Distribute Summary Annual Report (SAR) For calendar year plans
A summary of the plan’s financial performance for the previous calendar year must be distributed to participating employees, former employees, COBRA beneficiaries, and Qualified Medical Child Support Order (QMCSO) recipients within nine months of the close of that plan year.
The SAR requirement does not apply to self-funded plans that pay benefits exclusively from the employer’s general assets, even if those so include employee contributions, as long as those contributions are made through a Section 125 cafeteria plan.
SAR language is rather standard, and the disclosures may be made according to the DOL’s requirements for electronic disclosure if desired.
Sept. 30 - Pay annual fee due from health insurers
Self-funded MEWAs must make fee payments by Sept. 30 via electronic transfer. MEWAs with $25 million or less in net written premium for a “data year” will not owe any annual fee for the “fee year” that follows.
Self-funded MEWAs are rare.
Sept. 30 - Medical Loss Ratio (MLR) rebates
Issuers must spend a minimum percentage of their premium dollars, or medical loss ratio (MLR), on medical care and healthcare quality improvement. Issuers that do not meet the applicable MLR must pay rebates to consumers.
Sponsors of insured health plans may receive rebates if their issuers do not meet their MLR. Rebates must be provided to plan sponsors by Sept. 30, following the end of the MLR reporting year. Employers that receive rebates should consider their legal options for using the rebate. Any rebate amount that qualifies as a plan asset under ERISA must be used to benefit the plan’s participants and beneficiaries.
Also, as a general rule, plan sponsors should use the rebate within three months of receiving it to avoid ERISA’s trust requirements. Plan sponsors that receive a rebate before Sept. 30 may need to adjust their deadline to use the rebate.
Aug. 31 and Sept. 30 - File Form 5500 for plan years ending Jan. 31, 2023, and Feb. 28, 2023, 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 DOL’s EFAST (opens a new window)2 portal.
Form 5500 extensions are available by filing Form 5558 with the DOL on or before the filing’s initial due date. Filing Form 5558 allows the plan up to an additional 2 ½ months to complete the filing.
SELECT STATE AND LOCAL DEADLINES
July 30 - Make San Francisco HCSO contributions for the prior calendar quarter.
Required if the employer is subject to the San Francisco Health Care Security Ordinance (HCSO) and, with respect to enrollees in a self-insured plan, is not taking advantage of the annual true-up calculation method of self-insured expenditures allowed by the HCSO. Fully insured plan sponsors cannot use the annual true-up method.
PANDEMIC-RELATED REMINDERS - OUTBREAK PERIOD REQUIREMENTS
In January 2023, President Biden announced that the Public Health Emergency (PHE) and the COVID-19 National Emergency (NE) would end on May 11, 2023. While the PHE and NE actually ended early, the Departments kept the May 11 date to calculate the end of the outbreak period (which is 60 days after the end of the NE or another date announced by the Departments.) This means the outbreak period will end on July 10, 2023. Any affected action period, for example, COBRA election period and HIPAA special enrollment period, is suspended until the earlier of:
The date that is 12 months after the date the suspension began and
The date that is 60 days after the May 11 designated date (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 the 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 such notice, the standard federal marketplace notice, which typically is provided within 14 days of a new hire, should be adequate for this latter purpose.
Various times - Adjust COBRA election and premium payment due dates
Plans that amended their COBRA election notices to include the outbreak period rules may need to amend the COBRA notices to let qualified beneficiaries know the extensions no longer apply. Plan sponsors should ensure internal processes and third-party vendors recalibrate the COBRA administrative processes to issue COBRA election notices within 44 days of the qualifying event (this includes the 30-day period the employer has to notify the plan administrator and the 14-day period the plan has to issue the notice), limit COBRA election periods and notices of second qualifying events to 60 days, and require timely premium payments of 45 days for the initial premium and 30 days for all subsequent premiums. Plans should also resume allowing at least an additional 30-day grace period if subsequent premiums are not paid timely.
Various times - Adjust HIPAA special enrollment due dates
Plan administrators receiving late notice of qualifying life events after the end of the outbreak period (after July 10, 2023) are no longer required to honor requests to enroll new spouses or new dependents midyear beyond the applicable 30- or 60-day timeframes. Although if they continue to honor late enrollments, premiums should be paid on a post-tax basis for the remainder of the plan year to avoid cafeteria plan concerns.
Note: Generally, when a filing deadline or notice obligation falls on a Saturday, Sunday or federal holiday, the filing or notice may be filed or distributed on the next day that is not a Saturday, Sunday or federal holiday. This general rule may or may not hold true for state-imposed deadlines.