The Washington Report
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October 4, 2023
Note to Subscribers
While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change after our publication deadline.
Executive
President Biden Signs Appropriations Bill Into Law, Funding Government Through November 17
On September 30, 2023, President Biden signed into law the Continuing Appropriations Act, 2024 and Other Extensions Act (H.R. 5860), narrowly averting a federal government shutdown. The legislation was passed by both chambers of Congress that same evening. Among other provisions, the law includes emergency disaster assistance and funds the government and its agencies through November 17, 2023.
The full text of H.R. 5860 is available here.
Health
Departments Release RFI Seeking Comment on Coverage of OTC Preventive Services
On September 29, 2023, the Departments of Health and Human Services, Labor, and the Treasury (Departments) released a Request for Information (RFI) regarding the application of the preventive services requirements under Section 2713 of the Public Health Service Act to over-the-counter (OTC) preventive items and services available without a prescription by a health care provider. The Departments issued the RFI to: 1) gather input from the public regarding the potential benefits and costs of requiring non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to cover OTC preventive items and services without cost-sharing and without a prescription by a health care provider; 2) seek comment on any potential challenges associated with providing such coverage; 3) understand whether and how providing such coverage would benefit consumers; and 4) assess any potential burden that plans and issuers would face if required to provide such coverage. This new RFI solicits comment on access to a range of OTC items recommended by experts for preventive care that can be purchased without a prescription, including contraceptives, tobacco smoking cessation products, folic acid during pregnancy, and breastfeeding supplies. Comments on the RFI are due by December 4, 2023.
The news release is available here.
The RFI is available here.
Departments Publish FAQs About ACA Implementation Part 61
On September 27, 2023, the Departments released two Frequently Asked Questions (FAQs) regarding implementation of certain provisions of the Affordable Care Act (ACA). The latest FAQs answer questions from stakeholders to help people understand the law and promote compliance regarding transparency in coverage. The questions ask:
- Q1: In light of the interim final rules issued in November 2021 implementing the prescription drug reporting requirements of the Consolidated Appropriations Act, and the collection of the required information from plans and issuers, do the Departments still intend to consider through separate notice and comment rulemaking whether the prescription drug machine-readable file requirements remain appropriate?
- Q2: Will the Departments continue to maintain an “enforcement safe harbor” as described in FAQs Part 53?
For additional information, please see the Aon bulletin, Say What? Departments Say Plans Need to Post Machine-Readable Files for Drug Prices, but Don’t Say When, found in the Publications section of the newsletter.
The FAQS About ACA Implementation Part 61 are available here.
Previously asked ACA Implementation FAQs are available here.
IRS Releases Drafts of 2023 IRS Instructions for 1094-B/C and 1095-B/C
On September 27, 2023, the Internal Revenue Service (IRS) released the Drafts of IRS Instructions for the following health care forms:
- Draft of 2023 IRS Instructions for Forms 1094-B: Transmittal of Health Coverage Information Returns, and 1095-B: Health Coverage
- Draft of 2023 Instructions for IRS Forms 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns, and 1095-C: Employer-Provided Health Insurance Offer and Coverage
This information is in draft form and is not meant to be used for filing purposes. Please refer to the IRS documents for additional information.
The Draft of 2023 IRS Instructions for Forms 1094-B: Transmittal of Health Coverage Information Returns, and 1095-B: Health Coverage, is available here.
The Draft of 2023 Instructions for IRS Forms 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns, and 1095-C: Employer-Provided Health Insurance Offer and Coverage, is available here.
Other HR/Employment
EEOC Proposes Updated Workplace Harassment Guidance
On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) released a Notice of proposed Enforcement Guidance on Harassment in the Workplace. The EEOC first released proposed guidance on workplace harassment for public comment in 2017, but it was not finalized. The updated proposed guidance reflects notable changes in law, including the Supreme Court’s decision in Bostock v. Clayton County, as well as other emerging issues. The proposed guidance “explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. These laws protect covered employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older) or genetic information. Specifically, it provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment.” Comments on the proposed guidance are due no later than November 1, 2023.
The news release is available here.
The Notice of proposed guidance is available here.
EEOC, DOL Issue Disability Resource Guide Marking 50th Anniversary of the Rehabilitation Act
On September 26, 2023, the EEOC and Department of Labor (DOL) released a commemorative resource guide about recruitment, hiring, and employment of individuals with disabilities, Employment Protections Under the Rehabilitation Act of 1973: 50 Years of Protecting Americans with Disabilities in the Workplace. The resource guide includes important information about the Rehabilitation Act for workers and employers, examples of best practices, links to relevant agency publications, and additional resources.
The news release is available here.
The resource guide, Employment Protections Under the Rehabilitation Act of 1973: 50 Years of Protecting Americans with Disabilities in the Workplace, is available here.
Aon Publications
Say What? Departments Say Plans Need to Post Machine-Readable Files for Drug Prices, but Don’t Say When
On Thursday, September 28th, 2023, the Internal Revenue Service and the Departments of Labor and Health and Human Services (Departments) revoked prior guidance that delayed the requirement for health plan issuers and group health plans to post on public websites machine-readable files (MRFs) with price information on prescription drugs. What the Departments did not do, however, was announce a date by which issuers and plans had to post the MRFs.
In Affordable Care Act Frequently Asked Questions Part 61, the Departments announced that they intend to provide further technical guidance on MRFs, along with an implementation timeline, at some point in the future. As a result, employers and plan sponsors will have to wait for the Departments to issue further guidance on posting.
The Aon bulletin is available here.
New Aon Report: Fiduciary and Litigation Risk in Today’s 401(k) and 403(b) Plans
Many employers may not be fully aware, but there are increasing fiduciary, compliance, and litigation risks associated with today’s 401(k) and 403(b) plans. For those serving in a fiduciary capacity for these plans, the level of personal accountability being assumed can be significant and misunderstood.
Key Takeaways:
- Litigation of benefit plans over excessive fees remains a substantial exposure for sponsors of 401(k) and 403(b) plans.
- As a result, employers are witnessing increased risk and fiduciary liability insurance costs.
- Pooled Employer Plans are a potential mitigation strategy, while providing less work and better retirement outcomes.
The new Aon report, Fiduciary and Litigation Risk in Today’s 401(k) and 403(b) Plans, is available here.