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Healthcare Reform laws taking place in 2010

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On March 23rd, 2010, the current administration and the President signed into law healthcare reform, referred to as The Patient Protection and Affordable Care Act (PPACA). This healthcare reform has created a lot of questions as to what and when these laws are going into effective and whom these laws will apply to. Although the specific regulations for how this will be implemented are still being written, we are providing a summary of what we understand at the present time. Below is a basic summary and links to further information of what is included in the PPACA for 2010.

A. Lifetime Limits Eliminated

Lifetime limits on the dollar value of benefits for any participant or beneficiary for all fully insured and self insured groups and individual plans will be prohibited in plan years beginning on or after September 23rd, 2010. Annual limits will be allowed only through plan years beginning prior to January 1, 2014, however will be completely prohibited in 2014.

This law applies to Grandfathered plans, those plans in existence on March 23rd, 2010.

For the model notices that need to be used to notify members of this lifetime limit change, please refer to:

http://www.dol.gov/ebsa/lifetimelimitsmodelnotice.doc

B. Dependent Age Limit

All group and individual plans in plan years beginning on or after September 23, 2010 will have to cover dependents through age 26. Dependents can be married and will also be eligible for the group health insurance income tax exclusion.

The confusion with this particular benefit is in regards to how this law pertains to children who may be coming off of their parent’s policies before September 23rd, 2010. Unfortunately, each carrier is implementing this law differently until it goes into effect in September. 

Children who become eligible to enroll because of this coverage requirement must be provided with a written notice of their enrollment rights and be allowed to have 30 days to enroll. This notice must be provided no later than the first day of the first plan year beginning on or after September 23rd, 2010.

Plan years before 2014, grandfathered plans/groups only would have to offer extended coverage if  the dependent was not eligible for other group coverage.

For the model notices that need to be used to notify members of this dependent age extension, please refer to:

http://www.dol.gov/ebsa/dependentsmodelnotice.doc

C. Pre-Existing Conditions

All groups and individual health plans will have to cover pre-existing conditions for children 19 and under in plan years beginning on or after September 23, 2010. 

This law applies to Grandfathered plans, those plans in existence on March 23rd, 2010.

D. Preventive Care, ER Services, OB/GYN & PCP/Pediatrician Access & Choice

All group and individual plans will have to cover specific preventive care services with no cost sharing in plan years beginning on or after September 23, 2010.  This means that specific preventive care services will be covered at 100%.

Emergency Services will be covered at the in-network level regardless of provider. This requires same cost sharing in/out of network, coverage without pre-authorization and prudent layperson interpretation.

Grandfathered Plans do not have to apply to these provisions.

When applicable, group health plans and insurers are required to notify participants of their rights to:  (1) choose a primary care provider or a pediatrician from within the plan’s network or (2) obtain obstetrical or gynecological care without prior authorization. This notice must be provided whenever the plan or issuer provides a participant with an SPD or other similar description of benefits starting no later than the first day of the first plan year beginning on or after September 23rd, 2010.

For the model notices that need to be used to notify members of their Patient Protection, please refer to:

http://www.dol.gov/ebsa/patientprotectionmodelnotice.doc

E. Grandfather Plans

Plans in existence on March 23, 2010 may be grandfathered from complying with certain requirements. Grandfather health plans will be able to make routine changes to their policies and maintain their status.

Compared to their policies in effect on March 23rd, 2010, grandfathered plans:

  1. Cannot Significantly Cut or Reduce Benefits
  2. Cannot Raise Co-Insurance Charges
  3. Cannot Significantly Raise Co-Payment Charges: Grandfathered plans will be able to increase copay by no more than the greater of $5 or a percentage equal to medical inflation plus 15 percentage points.
  4. Cannot Significantly Raise Deductible: Can only raise equal to medical inflations plus 15%
  5. Cannot Significantly Lower Employer Contributions: Employer Premium cannot be decreased by more than 5%

F. Federal Risk Pool Program (also known as They Pre-Existing Condition Insurance Plan)

This temporary high risk federal pool program is for U.S citizens or legal residents who have been uninsured for at least six months and have been denied coverage from a private health insurance company due to a pre-existing condition. This program will be running in 21 states, including TX, LA and FL, all offering the same plan design with individual premiums ranging from $140 - $900/month depending on the state and age of the applicant. However, health conditions WILL NOT affect premium rates.

Federal Government began taking applications on July 1st and those who apply by July 15th could have their coverage effective August 10th, 2010.

This program will be in place until the new health insurance exchanges open in 2014 or until they exhaust the budgeted $5 billion in federal funding used to fund this program.

There are a few requirements to meet before you can enroll: 

  1. You must be a citizen or national of the United States or lawfully present in the United States
  2. You must have been uninsured for at least the last 6 months
  3. You must have had a problem getting insurance due to a pre-existing condition

To apply and for further information, please refer to: http://www.pcip.gov/

G. Early Retirement Reinsurance Program: (ERRP)

Temporary re-insurance programs for employers that provide retiree health coverage for employees 55+ are in effect beginning June 29, 2010. This ERRP program has been established to provide reimbursements to participating employment based plans for a portion of the cost of providing health insurance coverage to early retirees and eligible dependents up until January 1st, 2014 or until funds are depleted. This program will reimburse the employer plan 80% of costs for health benefits between $15,000 - $90, 000.

The Official ERRP Application and instructions are now available and are posted here:

http://www.hhs.gov/ociio/regulations/index.html

H. Small Business Tax Credit

Beginning on March 23, 2010 the day of Healthcare Reform enactment, small business were able to receive a tax credit if they purchased and contributed towards a medical group health plan for their employees.  In order to qualify and receive this tax credit, employers must have:

  1.  No more than 25 full-time equivalent employees
  2. Pay average annual wages of less than $50,000 per full-time equivalent employee
  3. Pays premium under a “qualifying arrangement”.
  4. Employer must contribute at least 50% of the premium.

This tax credit is equal to 35% of employer costs (25% for tax-exempt employers) subject to certain limitations. This tax credit will be in effect from 2010 – 2013.

Please refer to attached document to help determine if you qualify for this tax credit.

For more information please refer to the following link:

http://www.irs.gov/newsroom/article/0,,id=220839,00.html

I. Administration launches Healthcare.gov

The Obama administration unveiled Healthcare.gov on Thursday intended to help small business owners and people who aren’t able to get insurance through their employer. This site will allow people to sort through health insurance options and make side-by-side comparisons, however to receive actual pricing and purchase the plans, one must still click through to carrier’s own websites.

Users will answer a series of questions about their age, zip code, job status and financial situation and the site returns a list of options from private plans as well as Medicare & Medicaid and even nearby clinics offering low-or no-cost care.

Please visit www.healthcare.gov  for more information

*This Legislative eBulletin is provided as informational service content to clients and associates. Benefit Solutions, L.P. It should not be construed as legal advice on any specific matter and does not represent or guarantee specific outcomes.


Over The Counter no longer Eligible after 01/01/2011

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One of the more immediate reforms in the Patient Protection and Affordable Care Act (Affordable Care Act) is the requirement that affects Flexible Spending Accounts, Health Savings Accounts and Health Reimbursement Arrangements. Starting January 1, 2011 all OTC (Over The Counter) items eligible for reimbursement must be accompanied by a doctor's prescription and a reimbursement request (claim form). They may no longer be purchased using the benefits card.

When does this change go into effect?

This change will go into effect January 1, 2011 and will apply to the taxable year. This means that both calendar year and off plan year FSA's and HRA's will have the change at the same time.

What if my plan year runs from October 1, 2010 through September 30, 2011? Can I get reimbursed for OTC items through the end of my plan year?

No. Eligibility for OTC items ends on December 31, 2010 regardless of plan end date. However, you may still use remaining funds for all other eligible expenses until the end of your plan year.

I am a diabetic. Will I need a doctor's prescription to get reimbursed for my insulin after December 31, 2010?

No. Insulin that is currently purchased over-the-counter without a prescription will still be eligible for reimbursement. However, the benefits card will no longer be accepted as payment after December 31, 2010, and a manual claim form will be required for reimbursement.

Will I still be able to use my benefits card to get reimbursed for my regular prescription medications?

Yes, prescription drug reimbursement will not be affected by this change and you can still use your card.

If I do get a doctor's prescription for an OTC, can I still use my benefits card to get reimbursed?

No. The benefits card may no longer be used as payment for any OTC items. However, you may use another form of payment then submit a reimbursement request along with the doctor's prescription. You can then mail, email, or FAX your receipt and prescription along with a completed claim form to us. All claims are generally processed in 48-72 hours of receipt.

What if I purchase an OTC item December 31 of 2010 but do not submit the expense until March 2011?

You will still be reimbursed for OTC items purchased prior to January 1, 2011. The new rule only affects those items purchased after January 1, 2011.

What are some of the OTC items that will no longer be eligible for reimbursement without a doctor's prescription under the new legislation?

The items no longer eligible for reimbursement under the new law will include item categories such as cough medicines, pain relievers, acid controllers, and allergy medications, to name a few. A complete list of items being affected by this change has not been made available yet. If a list is made available we will pass along to you.

Does this affect purchases with my benefits card for any other type of expenses?

This legislation will not affect expenses related to doctor's office co-pays, dental co-pays, orthodontia, vision exams, eye glasses, and more. Participants will continue to enjoy the convenience of eliminating up-front and out-of-pocket costs with your benefits card or by manually filing claims.

See attached

Principal 


Data Show That Automatic Enrollment in 401(k) Plans Has Led to Higher Match Rates from Large Plan Sponsors

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New research from the nonpartisan Employee Benefit Research Institute (EBRI) finds that employers adopting automatic enrollment in their 401(k) plans have also generally increased the “employer match” to participant’s accounts—in some cases, by a significant amount.

The EBRI research is the first using actual plan information on both actual auto enrollment and actual match rate information both before and after adoption of auto enrollment. The new EBRI analysis uses plan-specific data for large employers from Hewitt Associates, and finds that employers instituted more generous contribution rates after adopting automatic enrollment, and did so when measured by several different standards.

This release provides preliminary results from the research. Full results of the simulated impact of the changes on worker’s retirement wealth will be available next month in the February 2010 EBRI Issue Brief, and will be posted online at www.ebri.org

“Our recent analysis of plan-specific data shows that, at least among large 401(k) plans, plan sponsors actually increased the generosity of their contribution rates,” said Jack VanDerhei, EBRI research director and author of the analysis. He noted that EBRI has published three separate simulation studies since 2005 showing the potential importance of automatic enrollment for future retirement account accumulation, even under the assumption that employer contribution rates would not change when the 401(k) plan was modified.

“The modifications to 401(k) plans made by sponsors in response to the Pension Protection Act of 2006 will be very important for retirement income adequacy in this country. Adding these more realistic assumptions to our simulation model will allow us to more accurately demonstrate the relative improvements in retirement accounts, especially for young and low-income workers,” he added.

The EBRI results contradict an earlier publication of the Center for Retirement Research (CRR) at Boston College and by the Urban Institute, which concluded that among a sample of large 401(k) plans, match rates are lower among firms with automatic enrollment than among those without automatic enrollment after controlling for firm characteristics.

However, there were two major limitations with the CRR/Urban published analysis:

• The study was based on U.S. Department of Labor Form 5500 data that does not include specific information on 401(k) match rates. Instead, the authors constructed an estimate for the match rate as the ratio of employer-to-employee contributions for each 401(k) plan.

• They merged the Form 5500 data with information on automatic enrollment from the Pensions &Investments database of the top 1,000 pension funds, which includes a flag indicating whether plan administrators reported offering automatic enrollment in their defined contribution (401(k)-type) plans.

However, this database does not report the year that the automatic enrollment provision was adopted, so there is no way to tell from this data source how long auto-enrollment had been implemented in a planThe authors of the CRR/Urban published study present a regression analysis on this database and produced a finding that: suggests a negative relationship between automatic enrollment and match rates and is statistically significant at the firm-level. In particular, match rates are about 7 percentage points lower among firms with automatic enrollment than among those without automatic enrollment, after controlling for firm characteristics.

While the authors correctly point out that although the regressions suggest a relationship between automatic enrollment and match rates, they do not necessarily imply that auto enrollment causes lower match rates; however, this crucial qualification has been generally ignored in recent press accounts of the study.

Earlier EBRI Research

The CRR/Urban published study conflicts with previous EBRI research published in 2007,2 which surveyed Mercer Human Resource Consulting defined benefit sponsors to gauge their recent activity and planned modifications to their defined benefit (pension) and defined contribution (401(k)-type) plans. The EBRI survey also was able to determine what, if any, increases in employer contributions to defined contribution plans were provided in conjunction with reductions to their defined benefit plans.

Although the association between the adoption of automatic enrollment and employer contributions to 401(k) plans was not the focus of the EBRI study, one-third of the defined benefit sponsors surveyed indicated that they had already increased or planned to increase their employer match to a defined contribution plan, and 20.9 percent indicated that that they had already increased or planned to increase their nonmatching employer contributions to a defined contribution plan. There was some overlap between the two groups, but overall, 42.5 percent of the defined benefit sponsors surveyed indicated that they had already increased or planned to increase their employer match and/or nonmatching employer contribution to a defined contribution plan. This was particularly true of defined benefit sponsors that had either closed a defined benefit plan to new hires or frozen the plan to all members in the last two years or planned to do so in the next two years.

Moreover, the 2007 EBRI study found an extremely large correlation between the adoption of automatic enrollment for a 401(k) plan and the freezing or closing of the defined benefit plan.4 Of those defined benefit sponsors that had closed their defined benefit plans in the last two years, 80.5 percent had either already adopted or were currently considering adopting automatic enrollment features for their 401(k) plans. Of those defined benefit sponsors that had closed their defined benefit plans in the last two years, 76.1 percent had either already adopted or were currently considering adopting automatic enrollment features for their 401(k) plans.

EBRI’s New Research and Methodology

The new EBRI study analyzes in detail 225 large defined contribution plans6 that had adopted automatic enrollment 401(k) plans by 2009, but did not have them in 2005 (the last observation that was not influenced by PPA). The following information was coded for each plan:

• The default contribution rate for the automatic enrollment (AE) plan in 2009.

• The entire match rate contribution formulae for both years.

• All nonelective contributions paid to the defined contribution participants by the employer.

Whether plan sponsors were more or less generous after adopting AE was measured with three different metrics:

1. The average 2009 first-tier match rate was 87.78 percent, while the average 2005 first-tier match rate was 81.26 percent. The difference of 6.52 percentage points suggests that, to the extent that this sample is representative of the universe of large 401(k) sponsors, those sponsors adopting AE were more generous to the 401(k) participants when measured by this variable after automatic enrollment was implemented than they were before.

2. The average effective match rate8 for 2009 was 4.32 percent of compensation, but only 4.00 percent of compensation in 2005. The increase of 0.32 percentage points again suggests that large 401(k) sponsors adopting AE were more generous to the 401(k) participants when measured by this variable after the adoption of automatic enrollment than they were before3. The average total employer contribution rate9 for 2009 was 6.35 percent of compensation and 5.46 percent of compensation in 2005. The increase of 0.89 percentage points once more suggests that those large 401(k) sponsors adopting AE were more generous to the 401(k) participants when measured by this variable than before.

Influence of Defined Benefit Plan Activity

This information was then combined with the defined benefit information for the same sponsor in an attempt to analyze whether EBRI’s 2007 findings of the association between defined benefit freezing/closing and enhanced 401(k) contributions were corroborated. The average improvements for all three metrics were much higher for sponsors that had frozen/closed their defined benefit plans than for the overall average. For example, the change in the total employer contribution rate for all frozen plans was 1.64 percent of compensation versus 0.89 percent for the overall average. Employers that had closed their defined benefit plans to new employees had an even larger average improvement: 2.82 percent of compensation.

The defined benefit sponsors that had frozen or closed their plans were then split into those that had done so prior to adopting AE and those that had changed their defined benefit plans between 2005 and 2009. If the hypothesis that the 401(k) improvements were a result, at least partially, of a simultaneous quid pro quo for the decreased accruals in the defined benefit plan, one would expect that the earlier improvement would be smaller than those that took place approximately at the time of the conversion to AE. In fact, this is exactly what is found for all six comparisons. For example, the average total employer contribution improvement for firms that had frozen their plans prior to 2005 was 0.69 percent of compensation, compared with 2.45 percent for those that froze between 2005 and 2009. Similar evidence is found for those that closed their pension plans to new employees: The average improvement in total employer 401(k) contribution was only 0.56 percent of compensation for those that closed prior to 2005, but 3.34 percent for those that closed the plan between 2005 and 2009.

-Employee Benefit Research Institute

The Combo Annuity/LTC Driver

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Americans have just survived a devastating period of asset depletion and shrinkage. For many retirees and near-retirees, the ability to pay for the costs of long term care and other retirement costs has been severely compromised.

What options are available for them? Are the costs affordable?

For many retirees and near-retirees, annuities have been the investments of choice when the decision to park investment dollars not needed for current expenses has been made. No taxes to pay now--that is a great feature. With variable insurance products, they can reallocate funds among attractive funds without a tax consequence. That is attractive too.

Those are just two of several factors accounting for the annuity’s popularity.

Yet, except for the very wealthy, investment dollars during the retirement years, including dollars inside of annuities, do need to be viewed as a source of funds when expenses are incurred, and especially when expenses increase significantly over what had been normal levels. Market researchers confirm that one of the major concerns people have is how to cover expenses if a family member, such as a spouse, needs to receive LTC services.

The insurance industry has largely focused its attempts to address such LTC needs via the stand-alone LTC policy; this generally attempts to cover all or most of the LTC costs an individual will incur.

Let’s be clear on what that means. It means that, in event of chronic illness, the insured will not have to pay any out-of-pocket expenses, except possibly to cover costs for an initial care period of typically 90 days. Said another way, the insured would only modestly need to cover LTC expenses with funds from sources other than the LTC policy.

There is much to like to like about stand-alone LTC policies. Since they in effect prepay one’s LTC costs through coverage paid for by premiums, the insured doesn’t have to draw on personal assets should care for chronic illness be needed.

This benefit comes at a significant premium cost, however. What does the target market of retirees and near retirees say about this kind of policy? They have clearly spoken over recent years with their wallets, so to speak. That is, sales of individual stand-alone LTC policies have plummeted over the past several years, according to sales figures from research organizations such as LIMRA, Windsor, Conn.

Given that assets for many have fallen greatly in the past two years, one finds it hard to imagine that such products will satisfactorily address the LTC need in the future.

Now 2010 has arrived, however. With it comes a change to federal tax law that allows extremely favorable treatment of so-called combination annuities. These annuities combine a LTC rider (that is tax-qualified under prescribed standards of federal law) with an annuity.

Under most of these designs, the insured’s annuity account value is paid out first, to be followed by a stream of LTC payments guaranteed by the insurer. Just as with stand-alone LTC designs, payments are subject to a maximum monthly amount and payable for similar benefit periods.

Under the combination annuity, the insured covers a material percentage, varying from 20% to 33%, of the LTC benefit via the annuity values. Under the new tax law, however, such payments are exempt from income tax.

In other words, the combination annuity provides a mechanism for the accumulated earnings of an annuity to be paid out income tax free. That of course is not otherwise possible with an annuity.

A significant cost reduction results from this design, somewhere on the order of 70% compared to stand-alone products. For example, at age 65, for a comparable set of benefits provided by a typical insurance company, a stand-alone LTC policy might cost $2,500 a year while the combination annuity’s LTC coverage would probably cost $700 a year.

Furthermore, should the insured die without becoming chronically ill, the heirs will receive the valuable and sizable annuity contract’s proceeds. Contrast this to the standalone policy where, if the insured dies, no benefits are payable. The stand-alone LTC creates a use-it-or-lose-it situation. If there’s no claim, there’s no payment.

The combination annuity thus provides an eminently affordable tax-favored solution to covering costly later-in-life LTC costs. Consequently, it can provide major demand-driven sales to an insurer’s and advisor’s annuity portfolio.

-National Underwriter Company


Keeping Your 401(k) on Track

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Setting up a reasonable and workable investment plan for your retirement is one of the most important decisions you can make.

But once that decision is made, your work is only half done. An equally important task is to monitor your selections and the portfolio as a whole to make sure your original plan is still on track.

What does monitoring consist of?

Most 401(k) plans are composed of mutual funds, where daily scrutiny isn't necessary or even desirable. Quarterly check-ups—a review every three months or so—is more in order.

First, you should review the performance of your individual fund holdings to determine how well the professional expertise you have hired is doing. This includes examining the performance of each fund against its peers (other funds with similar objectives) and an appropriate index. For example, if you are invested in large-company stocks, a good comparison index would be the Standard & Poor's 500.

If your funds' performance figures are good relative to the benchmarks, no problem.

However, if the figures are unsatisfactory, you need to take a closer look at the fund's manager to try to determine why the performance is off. If the unsatisfactory performance is likely to be short-term—for instance, perhaps the manager's investment style is temporarily out of favor—you should hold on to the fund and give the manager a chance to improve over time. However, if the underperformance is long-term in nature—for instance, you have been monitoring the fund for a year and the poor performance relative to similar funds is persistent—you may want to sell the fund and find a better replacement.

Second, you should take a look at the quarterly and annual reports that funds send to all shareholders. These periodic reports detail the fund holdings, and they often discuss fund performance as well as any changes that fund management may be making in light of their investment outlook. These reports should be examined to make sure that the fund continues to follow the approach that you hired it to do.

In addition to monitoring the individual components of your portfolio, you need to step back and take a look at your portfolio as a whole. Once a year, you should compare your current asset allocation with your desired asset allocation and rebalance if things are out of whack. Determining your current asset allocation is relatively easy—you simply total up your investments in any particular asset category and divide by your total investment portfolio.

If your allocation starts to stray significantly—by five percentage points or more—from your desired plan, you need to rebalance to bring your holdings back in line with your original plan.

Monitoring your portfolio of mutual funds requires only a little bit of time and a small amount of effort to ensure that your plan is on track. Ignore your portfolio—and it may just go away.

© 2010 AAII Journal


New Rules Govern Employee Stock Purchase Plans and Incentive Stock Options

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On Jan. 1, 2010, new IRS final rules went into effect regarding the operation of tax-qualified employee stock purchase plans (ESPPs) as well as final rules affecting the tax reporting of transfers of shares acquired from ESPPs and exercises of incentive stock options (ISOs).

The new ESPP rules include some important clarifications that might necessitate plan amendments or changes in administrative practices. In addition, for ESPP and ISO share transactions that occurred in 2009, employees should have received information reports that met updated requirements by Jan. 31, 2010.

Final ESPP Regulations

An ESPP is a written plan that permits an employer to sell its stock to employees at a small discount on a tax-advantaged basis. An employee’s participation in an ESPP is treated for tax purposes as a grant to the employee of an option to purchase employer stock. The period over which the option is in effect is referred to as an “offering.”

The principal tax advantage of an ESPP is that neither the purchase discount (which might be up to 15 percent from the stock’s fair market value on the date of grant or the date of exercise, whichever is less) nor the option spread over the discount is taxed until the shares are sold. Furthermore, the option spread over the discount is eligible to be taxed at more favorable capital gains rates, provided the employee meets certain holding period requirements. A purchase discount generally cannot be offered under an ISO or a nonqualified stock option without triggering adverse tax consequences for the recipient.

Some of the most important aspects of the regulations are as follows.

Multiple Offerings Allowed

One of the requirements for an ESPP is that all employees who are eligible to participate in a particular offering participate on the same terms and conditions (or, in ESPP parlance, have “equal rights and privileges”) as all other eligible employees. The proposed regulations had implied that there could be only one offering under an ESPP at any time. However, the final regulations clarify that ESPPs may have multiple offerings. Such offerings can be consecutive or overlapping, and the terms of each separate offering need not be identical, as long as the ESPP and each offering together complies with the ESPP requirements.

This clarification will allow employers to structure their plans more strategically. A plan covering multiple related companies could have one offering for the employees of one subsidiary and another offering for employees of the parent company and its other subsidiaries. Such an approach might be attractive in situations in which related companies operate in disparate industries or have differing pay practices.

Example — A parent corporation has Subsidiaries A, B and C. It structures one offering for its employees and the employees of Subsidiary A, and a separate offering for the employees of Subsidiary B and Subsidiary C. Under the separate offering for the employees of Subsidiary B and Subsidiary C, options are granted to all employees with an exercise price equal to 90 percent of the fair market value at the time the option is exercised. Under the separate offering for the employees of Subsidiary A, options are granted to all employees with an exercise price equal to 95 percent of the fair market value at the time the option is exercised. The fact that the different offerings have different purchase price discounts won’t cause the ESPP to violate the equal rights and privileges rule.

Employee Exclusions

As a general matter, all employees of a corporation that is a participating employer in an ESPP must be allowed to participate in the plan. However, ESPPs are permitted to exclude employees who have been employed less than two years, employees who customarily work 20 hours or less per week, employees who customarily work not more than five months in a calendar year, and certain highly compensated employees. The final regulations clarify that employee exclusions may differ from offering to offering, as long as the exclusions are otherwise permissible.

Example — An employer establishes two offerings. The first offering excludes from participation clerical employees who have been employed less than two years but permits all other employees to participate. The second offering excludes from participation all employees who have been employed less than two years. The first offering does not comply with the ESPP requirements because it applies an impermissible exclusion. In contrast, the second offering applies a permissible exclusion because all employees who have been employed less than two years are excluded under the offering.

A number of commentators had requested that the final regulations permit employers to exclude nonresident aliens who have no U.S.-source income and employees below a specified minimum age. The Treasury Department and the IRS rejected these requests on the basis that the Internal Revenue Code does not allow for such exclusions.

However, the regulations do permit individual ESPP offerings to provide more restrictive terms for citizens or residents of foreign jurisdictions to the extent necessary to comply with the laws of that foreign jurisdiction. In addition, the ability to have different terms for different multiple, overlapping offerings might as a practical matter allow employers to structure offerings to address differing legal requirements for employees outside the U.S.

Maximum Shares Available for Purchase

A key requirement under an ESPP is identifying the “date of grant” of an option awarded under the ESPP. The date of grant is important for many purposes, including applying the $25,000 limit (discussed below), applying the purchase price discount (for plans with look-back periods) and measuring the start of the holding periods that must be met in order for acquired shares to have favorable tax treatment upon sale.

Under the new rules, the date of grant will be the first day of an offering period if the terms of the ESPP or the offering designate a maximum number of shares that may be purchased by each employee during the offering. However, the rules do not require that an ESPP or offering designate a maximum number of shares purchasable during an offering (or incorporate a formula to establish such a maximum).

If no limit is designated, the date of exercise (i.e., purchase) will be the date of grant. Importantly, the regulations clarify that merely specifying the $25,000 annual limit (or the total number of shares reserved for issuance under the plan) is not sufficient to establish a maximum share limit. As a result, employers might wish to amend the terms of their plan or modify the terms of their offering periods to designate a maximum number of shares that can be acquired during an offering period. This is particularly important for employers with ESPPs that offer a look-back period.

Example — An ESPP provides that the option price will be the lesser of 85 percent of the fair market value of the stock on the first day of an offering or 85 percent of the fair market value of the stock on the last day of the offering (a look-back period). Options are exercised on the last day of the offering. Notwithstanding the fixed number of shares reserved for issuance under the plan and the fact that the plan document includes reference to the $25,000 limit, there is no maximum share limit for the offering. Therefore, the date of grant for the option is the last day of the offering when the option is exercised, and the applicable holding periods must be measured from that date.

Annual $25,000 Limit

An ESPP must provide that all of an employee’s ESPP options (under all ESPP plans sponsored by the employer and its related companies) may not vest and become exercisable with respect to more than $25,000 worth of employer stock (measured of the option date of grant) per year. In the proposed regulations, the limit did not begin to apply with respect to a particular option until the year in which the option was outstanding and exercisable.

The final regulations adopt a more generous approach that permits the limit to begin to apply in the year in which the option is granted even if it does not vest and become exercisable until a later year. To the extent the limit is not “used” during the year of grant (because the option does not vest until a later year), it may be added to the limit for the subsequent year.

Example — On Sept. 1, 2010, an employer grants employees an option under an ESPP that will be exercised automatically on Aug. 31, 2011, and Aug. 31, 2012. As a result, on Aug. 31, 2011, the employee may purchase under the option employer stock equal to up to $50,000 (determined at the time of grant of the option), and on Aug. 31, 2012, the employee may purchase under the option an amount of employer stock equal to up to the difference between $75,000 and the fair market value of employer stock purchased during year 2011.

Updated Information Reporting Requirements

Employers generally are required to provide a statement to an employee after the employee exercises an ISO or transfers shares purchased under an ESPP. Such statements must be provided by Jan. 31 of the year following the year in which occurs the exercise or transfer, as applicable.

In addition, a 2006 change in the tax laws required employers to file an information return with the IRS for such stock transfers. This requirement was originally scheduled to go into effect in 2007 but the Treasury Department and IRS waived it for exercises and transfers occurring in 2007 and 2008. Regulations finalized in late 2009 make this requirement effective for exercises and transfers that occur in 2010 (thereby waiving the information return requirement for 2009). The IRS will make forms available for 2010 (Form 3921 for ISO exercises and Form 3922 for stock transfers under an ESPP).

Employers must continue to provide employees with information statements for exercises and transfers that occurred in 2009. Information statements for 2009 exercises and transfers must be sent to employees no later than Jan. 31, 2010. The required information is intended to allow the employees to calculate axes they might owe with respect to the transfer of ESPP shares or exercise of ISOs.

In addition, the final regulations clarify certain aspects of reporting share transfers under ESPPs. First, if the shares acquired under the ESPP are issued directly to the employee or registered in the employer’s records in book-entry form, no transfer of legal title is considered to have occurred and thus no information return is required. However, if the employer transfers ESPP-acquired shares to a brokerage account on behalf of the employee, or if the employee sells the shares issued to the employee or transfers those shares at the employee's initiative to a brokerage account, a transfer of legal title is considered to have occurred and an information report and a return (beginning for transfers in 2010) must be filed.

Transfers to Nonresident Aliens

In response to comments, the final regulations include an exception to the reporting and return requirements for certain nonresident aliens. Neither an information report nor a return is required for employees for whom the employer is not required to file a Form W-2 for certain specified periods.

-Society for Human Resource Management (SHRM)

How Satisfaction Levels Vary by Type of Health Plan

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Does the level of satisfaction with a health plan vary depending on the type of plan? The 2009 EBRI/MGA Consumer Engagement in Health Care Survey, which provides nationally representative data regarding the growth of consumer-driven health plans (CDHP) and high-deductible health plans (HDHP), answers that and other questions about overall consumer satisfaction for the years 2005 through 2009. Here are some of the details:

• Traditional plan enrollees were more likely than CDHP and HDHP enrollees to be extremely or very satisfied with the overall health plan in all years of the survey.

• In 2009, 66 percent of traditional plan enrollees were extremely or very satisfied with the plan, compared with 52 percent among CDHP enrollees and 40 percent among HDHP enrollees.

• The overall satisfaction levels among CHDP enrollees increased from 37 percent to 47 percent between 2006 and 2007 and were 52 percent in 2009, while the overall satisfaction rates for traditional enrollees were unchanged.

• Differences in out-of-pocket costs may explain a significant portion of the difference in overall satisfaction rates between traditional plan, HDHP, and CDHP enrollees.

Traditional = Health plan with no deductible or less than $1,000 deductible for an individual and less than $2,000 for a family.

HDHP = Health plan with deductible of $1,000 or more for an individual and $2,000 or more for a family, and no health reimbursement account (HRA) or health savings account ( HSA).

CDHP = Consumer-driven health plan with deductible of $1,000 or more for an individual and $2,000 or more for a family, with a HRA or HSA.

More details of the 2005–2007 EBRI/Commonwealth Fund Consumerism in Health Care Surveys, and the 2008–2009 EBRI/MGA Consumer Engagement in Health Care Surveys, including more information about consumer satisfaction levels, appear in the December 2009 EBRI Issue Brief, available at www.ebri.org

-Employee Benefit Research Institute

Labor Weighs In On Schedule C Comp Reporting

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The Employee Benefits Security Administration has issued a new batch of advice that will affect how insurers, benefit plan administrators and benefit plan sponsors go about calculating 2009 “reportable compensation.”

How Out-of-Pocket Costs Affect Satisfaction with Health Plans

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How do out-of-pocket costs affect participants' satisfaction with a health plan?

The 2009 EBRI/MGA Consumer Engagement in Health Care Survey, which provides nationally representativedata regarding the growth of consumer-driven health plans (CDHP) and high-deductible health plans (HDHP),answers that and other questions about consumer satisfaction levels for the years 2005 through 2009. Here are some of the details:

• In 2009, 52 percent of traditional plan participants were extremely or very satisfied with out-of-pocket costs for health care services other than for prescription drugs.

• In contrast, 20 percent of HDHP enrollees were satisfied and 29 percent of CDHP participants were satisfied.

Differences in out-of-pocket costs may explain a significant portion of the difference in overall satisfaction rates between traditional plan, HDHP, and CDHP enrollees. (For details of satisfaction levels by plan type, see Fast Facts from EBRI Feb 10, 2010.

Traditional = Health plan with no deductible or less than $1,000 deductible for an individual and less than $2,000 for a family.

HDHP = Health plan with deductible of $1,000 or more for an individual and $2,000 or more for a family, and no health reimbursement account (HRA) or health savings account (HSA).

CDHP = Consumer-driven health plan with deductible of $1,000 or more for an individual and $2,000 or more for a family, with a HRA or HSA.

More details of the 2005-2007 EBRI/Commonwealth Fund Consumerism in Health Care Surveys, and the 2008-2009 EBRI/MGA Consumer Engagement in Health Care Surveys, including more information about consumer satisfaction levels, appear in the December 2009 EBRI Issue Brief, available at www.ebri.org

Fast Facts from EBRI is issued by the nonpartisan Employee Benefit Research Institute to highlight benefits information that may be of current interest. Established in 1978, EBRI is an independent nonprofit organization committed exclusively to data dissemination, policy research, and education on economic security and employee benefits. EBRI does not take policy positions and does not lobby.

-Employee Benefit Research Institute



Employers, Workers, and the Future of Employment-Based Health Benefits

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This Issue Brief summarizes presentations at EBRI's 65th biannual policy forum, held in Washington, DC, on Dec. 10, 2009, on the topic, "Employers, Workers, and the Future of Employment-Based Health Benefits." The forum brought together a wide range of economic, benefits, management, and labor experts to share their expertise at a time when major health reform legislation was being debated in Congress. The focus: How might this affect the way that the vast majority of Americans currently get their health insurance coverage?

THE EMPLOYMENT-BASED HEALTH INSURANCE SYSTEM: Most people who have health insurance coverage in the United States get it through their job: In 2008, about 61 percent of the nonelderly population had employment-based health benefits, 19 percent were covered by public programs, 6 percent had individual coverage, and 17 percent were uninsured.

DIFFERENCES, AGREEMENTS: Not surprisingly, given the deep conflicts that exist over President Obama's health reform plan and the different bills that have passed the House and Senate, benefits experts also do not agree on what "health reform" will mean for either workers or employers. Views ranged from "Will anyone notice?" to predictions of great upheaval for workers and their employers, patients and health care providers, and the entire U.S. health care system. One point of consensus among both labor and management representatives: Imposing a tax on health benefits is likely to cause major cuts in health benefits and might result in structural changes in the employment-based benefits system. A common disappointment voiced at the forum was that the initial effort to reform the delivery and cost of health care in America gradually became focused on just financing and coverage of health insurance.

RECENT TRENDS: The ever-rising cost of health insurance affects different employers and workers in different ways-with small employers and low-wage workers being the most disadvantaged. With health premiums having risen almost five times as much as the overall rate of inflation since 2000, employers face unsustainable cost increases in health benefits. For a minimum-wage worker, the cost of family coverage (averaging about $13,700 a year in a small firm) exceeds their total annual income (about $11,500 a year). Small employers, if they offer health benefits at all, pay proportionately more than large employers for the same health coverage.

PUBLIC OPINION: As reflected by the debate in Congress, the American public has conflicted opinions on both the U.S. health care system and on reform: Surveys find that people tend to be satisfied with the quality of their own care but not with costs and access, and a majority rates the system as fair or poor. Opinions divide sharply along partisan lines.

PERSPECTIVES: While large employers tend to express continued commitment to health benefits, small employers see themselves strongly disadvantaged by the current system. Consultants report many employers privately want to drop benefits to control costs, but realize there are risks to doing so and none wants to be first. Employers express strong interest in wellness and disease management programs as a way to control costs, even though some experts say there is no evidence these work. Consumer-driven health plans are expected to continue their slow rate of growth.

Download Issue Brief PDF

-Employee Benefit Research Institute



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