American Benefits Council
Benefits Byte

2014-116

November 26, 2014

The Benefits Byte is the American Benefits Council’s regular e-mail and online newsletter for members only, providing timely reports on legislative, regulatory and judicial developments, along with updates on the Council’s activities in support of employer-sponsored benefit plans.

The Benefits Byte is published by the American Benefits Council, based on staff reports and edited by Jason Hammersla, Council director of communications. Contact information for Council staff related to specific topics can be found at the end of each story.

Click here to read past issues on the Benefits Byte Archive page.

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Executive Branch Agencies Release Regulatory Agendas; IRS Issues Priority Guidance Plan

Key regulatory agencies with jurisdiction over U.S. employee benefits policy recently updated their semiannual agendas with topics that are expected to be the subject of formal guidance during the next year. These agencies include:

Of particular note, on the health side, the EEOC intends to issue regulations in early 2015 addressing wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). On the retirement side, included in a packed slate of proposed and final regulatory projects is the DOL’s ongoing effort to re-define “fiduciary” in the context of providing individualized investment advice – with the SEC proceeding on a similar project on a separate track.

While agencies are not bound by their agendas or the deadlines set, their publication does provide insight regarding the administration's priorities and the amount of activity expected within the next year. As indicated below, the Council has been actively engaged with respect to almost all of the regulatory projects that have direct applicability to employer plan sponsors. This engagement involves formal written comments, testifying at regulatory agency hearings and other informal communications. In many cases – particularly with respect to PPACA regulations – the Council has also hosted webinars with additional information and analysis.

The list categorizes regulatory projects according to whether they are in the proposed rule stage or the final rule stage. Generally, those items slated for "long-term action" do not have a specific timetable for proposal. While the description of each project includes a projected timetable for the issuance of rules or guidance, these timelines are estimates and frequently slip.

Below, we highlight the significant items for employer plan sponsors and service providers.

Treasury & IRS

The following health care policy items are listed on the Treasury/IRS agenda:

  • Guidance on employer contributions to health savings accounts (HSAs) and the interaction between the section 4980G comparability rules and section 125 nondiscrimination rules in instances where not all of the employer's employees contribute to an HSA through a cafeteria plan. [proposed rule stage, proposed regulations scheduled for June 2015.
  • Cafeteria plan rules (including employee welfare benefit plans allowing employees to choose between taxable benefits and nontaxable benefits) [final rule stage, final action scheduled for December 2014]
  • Guidance under tax code Section 125 regarding the use of contributions or benefits under a health flexible spending account in a subsequent plan year or period of coverage [proposed rule stage, proposed regulations scheduled for December 2014]
  • Enhancements to existing HIPAA portability regulations (tolling the running of certain time periods in certain circumstances, clarifying the procedures for requesting special enrollment, addressing how the HIPAA portability requirements apply to individuals taking leave under the Family and Medical Leave Act and prescribing how to count the number of employees an employer has) [final rule stage, final action scheduled for December 2014]

The following retirement and compensation policy items are listed on the Treasury/IRS agenda:

  • Removal of rollover allocation rule from designated Roth regulations, possibly addressing the divided distribution issue raised by the safe harbor notice under tax code Section 402(f) [proposed rule stage, agency currently collecting comments]
    • The Council has communicated with Treasury and IRS extensively, requesting clarification on the interaction of rollovers divided between more than one Individual Retirement Account (IRA) under tax code Section 402(c)(2) and the 402(f) notice requirements. This rulemaking project may be an attempt to provide such clarity.
  • Accrual rules for defined benefit plans in cases where plan benefits are determined on the basis of the greater of two or more separate formulas [final rule stage, final action scheduled for June 2015]
    • The Council communicated with Treasury/IRS numerous times before the issuance of proposed regulations in June 2008.
  • Requirements for employee stock ownership plans to prescribe rules under Code sections relating to employee stock ownership plans, including sections 401(a)(28), 404(k), 409, 4975(d)(3) and 4975(e)(7) and also to  update existing regulations relating to ESOPs: section 54.4975-7 and section 54.4975-11 [proposed rule stage, proposed regulations scheduled for June 2015]

In addition to the Fall 2014 regulatory agenda, on November 7 the IRS updated its First Quarter 2014-2015 Priority Guidance Plan, which describes the 317 regulatory projects that the agency “intends to work on actively” during the twelve-month period from July 2014 through June 2015. The guidance plan does not place any deadline on completion of projects.

The plan includes 42 items addressing retirement benefits (Pages 5-8 of the document) and 23 items addressing executive compensation, health care and other benefits, including items related to implementation of the PPACA (Pages 8-10). A number of these items have already been completed, as indicated in the priority plan.

The most notable item in the priority guidance plan that does not appear in the semiannual regulatory agenda is a planned notice under Section 4980I of the tax code, addressing the 40 percent excise tax on high-cost employer-provided coverage, as added by PPACA. It is not clear whether IRS intends to issue guidance by June 2015 or if they will simply be gathering and analyzing data.

Other issues addressed elsewhere in the priority guidance plan include consolidated returns; corporations and their shareholders; excise taxes; exempt organizations; financial institutions and products; gifts, estates and trusts; insurance companies and products; international issues; partnerships; subchapter S corporations; tax accounting; tax administration; tax-exempt bonds and other general tax issues. An appendix also lists additional routine guidance that is published each year.

DOL & EBSA

The following health care policy items are listed on the DOL/EBSA agenda:

The following health care policy items are considered long term actions and are not anticipated in 2015: automatic enrollment in health plans under Section 18A of the Fair Labor Standards Act, as added by PPACA, under which employers with more than 200 full-time employees and who offer enrollment in one or more health benefits plans must automatically enroll new full-time employees in one of the plans offered and to continue enrollment of current employees, fee disclosure for welfare plans, setting forth the standards under ERISA Section 408(b)(2) designed to ensure that plan fiduciaries of welfare plans have the information necessary to determine whether an arrangement for services is “reasonable,” and amendments to the claims procedures under Section 503 of ERISA, designed to strengthen, improve and update the current minimum requirements for internal claims and appeals processes.

The following retirement and compensation policy items are listed on the DOL/EBSA agenda. Most notably, the agency’s ongoing project “to more broadly define as fiduciaries, employee benefits plans, and IRAs those persons who render investment advice to plans and IRAs for a fee” has been given an expected release date of January 2015. This is significant because it suggests the possibility of expedited review by the Office of Management and Budget (OMB), which typically takes at least 90 days.

  • Conflict of interest rule-investment advice addressing "fiduciary" definition [proposed rule stage, new proposed regulations scheduled for January 2015]
    • DOL/EBSA originally issued proposed regulations in October 2010 intended to protect recipients of investment advice from conflicts of interest and self-dealing by clarifying ERISA's fiduciary standards with respect to the providers of such advice. The proposal would have greatly expanded the definition of a fiduciary (see the October 21, 2010, Benefits Byte). However, in the face of bipartisan congressional criticism and concerns expressed by the Council and other plan sponsor groups, DOL subsequently announced that EBSA would withdraw and re-propose the regulations, including a more vigorous cost analysis, amendments to existing prohibited transaction exemptions (PTEs), one new PTE and an update of DOL Interpretive Bulletin 96-1 (which distinguishes investment education from investment advice). The Council has been in frequent contact with DOL and EBSA officials on this matter with regard to implications for plan sponsors, including written comments on the proposed rules in February 2011. The SEC currently has a related long-term project underway.
  • Pension benefit statements, addressing Pension Protection Act (PPA) benefit statement requirements as well as whether and how the individual benefit statement should present a participant's accrued benefits in a defined contribution plan as a lifetime income stream of payments as well as in the form of an individual account balance [proposed rule stage, proposed regulations scheduled for July 2015]
  • Standards for brokerage windows in participant-directed individual account retirement plans [pre-rule stage, formal request for information comment period closed]
    • This project follows on DOL's 2012 issuance of Field Assistance Bulletin (FAB) 2012-02R, revised guidance on issues related to participant- and fiduciary-level retirement plan fee disclosure. The FAB resolved a number of concerns expressed by the Council with regard to DOL's original position on the treatment of brokerage window investments as "designated investment alternatives" (DIAs) (known as the "Q&A 30" issue, corresponding to the original issuance). At that time, the Council had met with senior lawmakers and officials from the Office of Management and Budget (OMB) and provided written comments to DOL and a letter to Phyllis Borzi, Assistant Secretary of Labor for EBSA, advocating for immediate withdrawal of the original FAB.
  • Amendment of the abandoned plan program, designed to facilitate the termination of, and distribution of benefits from, individual account pension plans that have been abandoned by their sponsoring employers [final rule stage, final regulations scheduled for July 2015]
    • Proposed regulations were issued in December 2012. At least one focus of the amendments will be consideration of expanding the scope of individuals who can be “qualified termination administrators,” the only entities authorized to implement the activities necessary to terminate an abandoned plan.

HHS & CMS

The following health care policy items are listed on the HHS/CMS agenda:



    The American Benefits Council is the national trade association for companies concerned about federal legislation and regulations affecting all aspects of the employee benefits system. The Council's members represent the entire spectrum of the private employee benefits community and either sponsor directly or administer retirement and health plans covering more than 100 million Americans.

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