• New DOL Guidance on FMLA Leave for Mental Health Conditions

    In connection with Mental Health Awareness Month, the Department of Labor (DOL) has sought to assist employers in better understanding how to comply with the Family Medical Leave Act (FMLA) regarding mental health conditions. On May 25, 2022, the DOL issued new guidance and FAQs on requirements for providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition. (Click here for Quick Basics on FMLA)

    Leave for Mental Health Conditions under FMLA

    Eligible employees may take FMLA leave for their own serious health condition or to care for a spouse, child, or parent because of a serious health condition. The guidance confirms that a mental health condition can constitute a “serious health condition” if the condition requires either:
    • Inpatient Care: A serious mental health condition that requires inpatient care includes a situation in which the individual stays overnight in a hospital or other medical care facility. Examples include rehabilitation centers for drug addiction and treatment centers for individuals with eating disorders.
    • Continuing Treatment by a Healthcare Provider: Mental health conditions that require continuing treatment by a health care provider include:
      • Conditions that incapacitate an individual for more than three (3) consecutive days and require ongoing medical treatment.
      • Chronic conditions that cause occasional periods when the individual is incapacitated and requires treatment by a health care provider at least twice a year.

    Ongoing medical treatment for a mental health condition can be multiple appointments with a health care provider or a single appointment and follow-up care. Examples of such treatment include behavioral therapy, prescription medications, or rehabilitation counseling. Examples include anxiety, depression, and dissociative disorders.

    Leave Documentation Guidelines

    Employers may require an employee to submit a certification from a health care provider to support the need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required.

    Employee or Family Member

    Eligible employees can take FMLA leave to care for their own serious mental health condition or to care for a covered family member with a serious mental health condition. For example, the FAQs explain that an eligible employee would be entitled to FMLA leave to attend a family counseling session for a spouse who is in an inpatient treatment program for substance abuse or to assist a parent receiving medical treatment for depression with day-to-day activities.

    Caring for a Covered Military Servicemember or Veteran

    The FMLA also provides eligible employees with up to 26 workweeks of military caregiver leave in a single 12-month period to care for a covered servicemember and certain veterans with a serious injury or illness. An employee may be an eligible military caregiver if they are the spouse, son, daughter, parent, or next of kin of the servicemember. Eligible employees may take military caregiver leave under the FMLA for a covered service member or veteran with a serious mental health condition when the condition (1) was incurred or aggravated in the line of duty and (2) makes them unfit to perform their military duties. Although the mental health condition must be incurred or aggravated in the line of duty, it does not have to manifest itself before the service member leaves active duty for the employee to use FMLA leave. Examples include caring for a veteran whose mental health condition, such as post-traumatic stress disorder, traumatic brain injury, or depression, manifested after the individual became a veteran but is related to their military service.


    The FMLA requires employers to keep employee medical records confidential and maintain them in separate files from more routine personnel files. However, supervisors and managers may be informed of an employee’s need to be away from work or if an employee needs work duty restrictions or accommodations.

    Protection from Retaliation

    Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Examples include refusing to authorize FMLA leave or disclosing or threatening to disclose information about an employee’s or an employee’s family member’s mental health condition to discourage them from taking FMLA leave.

    A Word of Caution

    Employers should be reminded not to discourage taking FMLA leave. An employer can run afoul of the FMLA rules if the employer “denies or interferes with FMLA benefits to which an employee is entitled resulting in harm to the employee.” 

    A recent case from the Seventh Circuit Court of Appeals (Ziccarelli v. Dart et al.) highlights how employers can be vulnerable to the “interferes with” standard. Importantly, the FMLA does not require an actual denial of FMLA benefits for a violation to occur. Instead, an employer violates an employee’s FMLA rights when it denies, interferes with, or restrains the employee’s exercise or attempt to exercise such rights. Following is a quick overview of the case:

    FMLA Request: During the current leave year, an employee has used more than 300 hours of leave and, at his doctor’s recommendation, asks his employer for an additional 8 weeks of leave for treatment of his serious health condition. Specifically, the employee asks the employer about the possibility of using his available FMLA leave as well as his sick leave and other employer-provided leave benefits. 

    Employer Response: In response, the employer’s representative states that the employee has taken a significant amount of FMLA leave and tells him not to take any more FMLA leave, or he will be disciplined. Based on this conversation, the employee decides not to take any more leave and, instead, chooses to retire. The employee then files a complaint alleging that the employer interfered with his rights under the FMLA. 

    Examples of prohibited interference or restraint include refusals to grant or accept proper requests for FMLA leave, burdensome FMLA approval processes, informing an employee with FMLA leave available that missing additional time will have consequences, and other actions that discourage employees from requesting FMLA leave. Concerning Mr. Ziccarelli, the court concluded that he had more than a month of FMLA leave available at the time he requested FMLA leave from his employer and, therefore, the alleged statement that Mr. Ziccarelli would be disciplined if he took any more FMLA leave was sufficient to support an FMLA interference claim and allow the matter to proceed to trial.

    Quick Basics on FMLA for Reference

    Employees are eligible for FMLA benefits if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.

    Covered employers include private employers if they employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Public agencies, including local, state, or Federal government agencies, and public and private elementary and secondary schools are FMLA-covered employers regardless of the number of employees they employ.

    FMLA requires employers to:
    • Provide 12 work weeks of FMLA leave each year,
    • Continue an employee’s group health benefits under the same conditions as if the employee had not taken leave, and
    • Restore the employee to the same or virtually identical position at the end of the leave period.

    FMLA may be unpaid or may be used at the same time as employer-provided paid leave.

    Link to Guidance

  • Transparency in Coverage Rules: Action Required for Self-Insured Health Plans

    The Transparency in Coverage final rule was issued in October of 2020 by the HHS, DOL, and Department of the Treasury. These rules require non-grandfathered group health plans (both fully insured and self-insured) to disclose information regarding in-network and out-of-network allowed amounts for billed services. The ultimate goal of the legislation is to reveal in real time the cost of health care services.

    Implemented in Phases

    The first phase of compliance requires the posting of three Machine-Readable Files (MRF) that disclose the cost of healthcare services. These are files that can be imported and read by computer systems. The three files disclose the following data:
    • In-Network Rate (negotiated rates with contracted providers)
    • Out-of-Network Allowed Rates (billed charges and allowed amounts)
    • In-Network Prescription Drug File

    These files must be updated monthly and must be accessible without login credentials or fees to access the files. The In-Network and Out-of-Network files must be posted and accessible by July 1, 2022. The prescription drug file has been delayed until further notice. It should be noted that the format of these files is not something that is decipherable at the consumer level.

    The second phase will include the rollout of an online cost estimator tool which will provide consumers with cost share estimates for all covered services. The first round of the consumer level disclosure requirement is effective January 1, 2023 and reflects a list of 500 designated services. The final phase will require costs for all services to be disclosed. This last phase is effective January 1, 2024.

    Fully Insured Plans – No Action Required

    For those employer groups with fully insured plans, it is the responsibility of the insurance carrier to comply with the MRF requirements. Vita is in the process of confirming that all insurance carriers will be in compliance with this requirement.

    Self-Insured Plans – Action Required for July 1, 2022

    Employers that offer self-insured health plans must take action to comply with these requirements. The specific requirement is to post somewhere on their public website a link to the MRF. Employers will be able to determine where, on their website, this file is posted as long as it is publicly facing and does not require login credentials. The requirements state that anyone in the United States should be able to locate this link.

    Employers should start working with IT resources now to ensure compliance by the July 1 deadline.

    Next Steps

    Vita clients with self-insured plans will receive an email with additional instructions based on the specifics of the health plans in place and recommendations on verbiage to assist in the process.

    Vita will continue to monitor the developments of the cost estimator tool and post further updates as information is solidified.

  • Implementing a Medical Travel Benefit

    (6/30/2022 Update) See Vita's Medical Travel HRAs solution for detailed guidance on how employers can implement a medical travel HRA benefit.

    Following the leaked draft opinion from the Supreme Court of the United States last week, a number of employers have asked about the best practices and considerations for implementing a medical travel reimbursement benefit for employees who find it necessary to access healthcare in another region.

    Medical travel benefits to support or even incentivize care in other locations are not necessarily new. Beyond politics, some employers have already implemented programs to drive care towards centers of excellence for certain high-cost or complex conditions.

    Taxation and Eligible Expenses

    IRS Publication 502 defines medical care that is tax-deductible. For individuals, such expenses would only be tax-deductible to the extent they exceed 7.5% of Adjusted Gross Income (AGI). However, these definitions are also relied upon to define eligible medical care that can be provided on a tax-deductible basis through employer plans. The following types of medically-related travel expenses are considered eligible:
    1. Transportation: amounts paid for transportation to another city to receive medical treatment are eligible. The expenses must be primarily for, and essential to, receiving medical care. This includes:
      • Bus, taxi, train, or plane fares
      • Mileage reimbursement for driving a personally owned car
      • Car services, such as taxis, Uber, Lyft, or another similar rideshare service
      • Transportation expenses of a parent who must accompany a child who needs medical care
      • Transportation expenses of a nurse or other person who can give injections, medications, or other treatment required by a patient who is traveling to get medical care and is unable to travel alone. Note that expenses for a friend, family member, or other non-medically trained support person would not be eligible.

    2. Lodging: the cost of lodging while away from home receiving medical care if all of the following requirements are met:
      • The lodging is primarily for, and essential to, medical care.
      • The medical care is provided by a doctor in a licensed hospital or in a medical care facility related to, or the equivalent of, a licensed hospital.
      • The lodging isn't lavish or extravagant under the circumstances.
      • There is no significant element of personal pleasure, recreation, or vacation in the travel away from home.

    The maximum amount for lodging is $50 per person per night. For example, if a parent is traveling with a child, up to $100 per night would be considered as an eligible medical expense for lodging.

    Note that you can include lodging for an eligible caregiver traveling with the person receiving the medical care; however, the same rules apply for defining an eligible travel partner as outlined above for transportation expenses.
    1. Car expenses: costs associated with driving to receive medically necessary treatment are eligible. The IRS authorizes a standard medical mileage rate on an annual basis. The rate for 2022 is $0.18 per mile. Parking fees and tolls are also eligible.
    The IRS also authorizes a significantly more complex methodology that allows for actual expenses for operating your car for the medical treatment. This includes calculating the actual out-of-pocket costs, such as the cost of gas, oil, parking, and tolls when you use a car for medical reasons. Items such as depreciation, insurance, general repair, or maintenance expenses are not eligible. This method also requires detailed logging of all mileage and expenses. Therefore, most people elect to use the simple medical mileage rate.

    Not Eligible Expenses

    Excluded expenses include:
    1. Meals (other than meals provided through inpatient care)
    2. Childcare expenses/babysitting
    3. Extending an otherwise-medical trip for vacation or personal enjoyment
    4. Expenses for a caregiver or travel companion other than the following two cases:
      • A parent accompanying a child under age 18
      • A qualified caregiver who can administer medication (such as a nurse)


    There are two paths that employers can take when establishing a medical travel Health Reimbursement Account (HRA). The two options are outlined below along with the basic pros and cons for each method:

    Option #1: Integrated HRA
    An Integrated HRA is one that is integrated with the health plan. This type of medical travel benefit would be available to all employees and dependents who are enrolled on the employer’s medical plan.
    • Pro: Employers may elect any reimbursement maximum, with no limit.
    • Con: Only employees who are actively enrolled on the health plan may be provided the medical travel benefit. In addition, only dependents that are actively enrolled on the health plan would be eligible under the plan. 

    Option #2: Standalone HRA (Excepted Benefit HRA, or EBHRA)
    Alternatively, a Standalone HRA is one that may be offered to ALL employees, independent of whether they are covered under the employer’s group health plan.
    • Pro: Employers may offer the benefit to a wider set of employees and eligible dependents (including those who waive the employer’s group medical plan). There is no restriction that the employee and dependents be enrolled in their employer sponsored health plan.
    • Con: There is a maximum benefit of $1,800 per employee per year for this type of HRA (the standard EBHRA limit). Expenses for dependent would still be covered, but the maximum is capped at $1,800 per employee. 

    Employers may wish to exclude emergency transportation from this plan benefit in order to funnel emergency transport services through the medical plan for cost management and claims processing expertise.

    Employers may also wish to clarify that the medical travel expense reimbursement plan is available when seeking medical services that are not available within 100 miles of an employee’s home. While the impetus for many employers who may be considering launching a medical travel HRA at this time is the potential non-availability of abortion services, the benefit would typically be written to cover medical travel expenses for any procedure that was not available within a certain radius of the employee’s home.

    A Few Thoughts About Reality

    Just as our country is divided, employees hold strong beliefs on both sides of the underlying abortion issue. Our experience has been that employers are thoughtfully considering the importance of this issue and how it will impact their employees. 

    What about cost? Some employers have jumped to offering a medical travel benefit without much regard for the potential cost, assuming benefits can be capped and will be low compared to other healthcare costs. Others have expressed concerns such as, “There are a lot of additional benefits we would like to offer our employees. Should we be investing those limited dollars in a medical travel benefit?” 

    It is possible that for many employers who adopt a medical travel benefit, it may be largely symbolic. The reality that both stigma and confidentiality loom large under such a medical travel benefit cannot be ignored.

    Next Steps

    Vita is prepared to assist clients who wish to implement such plans by providing formal plan documentation and confidentially administering the Health Reimbursement Arrangement (HRA) on behalf of clients. Please reach out to your Vita account management team if you would like to further explore or implement this benefit.

    If employers choose to administer the reimbursement internally, it is recommended that careful consideration be given to privacy and confidentiality concerns. In addition, employers should consult with a third-party administrator or legal counsel to draft formal plan documentation and create guidelines for acceptable documentation for reimbursement.

    Lastly, Vita will monitor legislative activity to stay up to date on potential new restrictions to health care that is currently covered under medical plans. Should abortion or other reproductive services be restricted from reimbursement, employers who may wish to maintain such coverage can consider expanding the HRA to include direct reimbursement for those medical services as well.

  • 2023 Health Savings Account (HSA) Limits Announced

    The Internal Revenue Service has announced the 2023 dollar limitations for Health Savings Accounts as well as underlying qualifying High Deductible Health Plans. All limits are increasing significantly in response to the recent inflation surge.

    High Deductible Health Plan Policy Limits

    2023 Minimum Deductible

    • Individual: $1,500  (2022 - $1,400)
    • Family: $3,000  (2022 - $2,800)

    2023 Maximum Out of Pocket Limit

    • Individual: $7,500  (2022 - $7,000)
    • Famiily: $15,000  (2022 - $14,000)

    Health Savings Account Limits

    2023 Maximum HSA Contribution

    • Individual: $3,850  (2022 - $3,650)
    • Family: $7,750  (2022 - $7,300)

    Over Age 55 Catch-Up Contribution

    • 2023: $1,000  (2022 - $1,000)

    High Deductible Health Plan Policy Limits

    Any amount can be contributed to an HSA up to the maximum annual contribution, regardless of the actual deductible of the underlying HDHP plan.
    The general rule is that HSA contributions are calculated on a monthly basis (reflecting the number of months that an individual was covered under a qualified HDHP).

    For individuals covered under an HDHP for only a portion of the calendar year, there is a special rule that allows them to contribute the full annual maximum to an HSA. This is known as the “full contribution rule.” The catch is that individuals who make contributions in reliance upon the full-contribution rule must remain HSA-eligible (that is, covered under an HDHP without other disqualifying coverage) during a 13-month period from December of that year through the following calendar year) to avoid adverse tax consequences.

    A Reminder about Embedded Deductibles

    HDHPs are typically structured with an aggregate family deductible. This means that when any dependents are covered on the plan, the deductible applies collectively to all family members, and the individual deductible is not taken into account.

    However, there are some plans that have an embedded individual deductible. Notably, California law requires that HDHPs have an embedded individual deductible. This means that once an individual covered on a family plan meets the embedded individual deductible, the plan coinsurance would start to pay for that individual (but not for other family members). In order for such a plan to remain a qualified HDHP, the embedded individual deductible must be at least the minimum family deductible outlined above. As an example, the minimum embedded individual deductible on a family plan in 2023 would be $3,000.

  • Annual HIPAA Report to Congress

    HIPAA Reports Released

    The HHS Office for Civil Rights (OCR) recently released two reports for Congressional review. These reports address HIPAA breaches and complaints reported to OCR during the 2020 calendar year as well as the enforcement actions taken by OCR in response to those reports.

    How Does This Apply to Employee Benefits?

    As a reminder, all group health plans are subject to the HIPAA Privacy and Security rules as well as breach notification requirements. These reports provide a useful synopsis of enforcement activity and offer some additional insights, including the reminder that OCR opens compliance reviews for all breaches affecting 500 or more individuals. The breach notification report includes a helpful list of the most common post-breach remedial actions taken to mitigate harm and prevent potential future breaches (summarized at the end of this article). Covered Entities should take note of the trends identified in these reports and examine their own compliance in light of these developments.

    Compliance Report Highlights

    Report Contents: This report provides an overview of HIPAA’s privacy, security, and breach notification rules, followed by a more detailed discussion of OCR’s enforcement process and a summary of 2020 complaints and compliance reviews.

    No Penalties: OCR did not assess any civil monetary penalties or initiate any audits in 2020.

    Top Violations: The breach report contains useful information regarding the most commonly reported categories of breaches. The top five violations alleged in complaints resolved by OCR involved:

    • Uses and disclosures of PHI

    • Unspecified safeguards

    • Access rights

    • Administrative safeguards for electronic PHI

    • Technical safeguards

    Complaint Resolution: Technical assistance or corrective action resolved 59% of the complaints. Of the compliance reviews opened in 2020, 88% resulted from large breach notifications, and 2% resulted from small breach notifications. The remaining compliance reviews stemmed from incidents brought to OCR’s attention by other means, including media reports.

    Resolution Agreements: An appendix includes a summary of the 11 resolution agreements reached following the compliance investigations. While the facts of the cases vary, there were commonalities in compliance issues identified and in the requirements of resolution agreements. Many of the resolution agreements required the covered entities to conduct enterprise-wide risk analysis and develop and implement risk management. The development of right of access policies and workforce training regarding those policies was another recurring requirement. Risk analysis and management and the right of access have been areas of focus for OCR for several years, and this report makes clear that both remain high on OCR’s list of enforcement priorities.

    Breach Notification Report Highlights

    Overview: This report begins with an overview of the notification requirements for covered entities and business associates following discovery of a breach of unsecured PHI.

    Breach Notifications Received: The OCR reports that they received 656 large breach notifications (affecting 500 or more individuals), 66,509 notifications of breaches affecting fewer than 500 individuals, and 27,182 complaints alleging violations of HIPAA and the HITECH Act. The number of “500+” breaches increased by 61% from the number received in 2019, and those 656 breaches affected over 37 million individuals. In addition, 66,509 small breach notifications were received, affecting more than 312,000 individuals.

    Source of Breaches: Breaches at health plans and business associates represented 23% of large breach reports. Following is a summary of the breach source areas: 

    • 68% of the “500+” breaches involved hacking/IT incidents of electronic equipment or a network server (which involved use of malware, ransomware, phishing, and posting PHI on public websites)

    • 23% involved unauthorized access or disclosure of records containing PHI

    • 5% involved thefts of electronic equipment/devices

    • 2% involved loss of electronic media or paper records (2%)

    • 2% involved improper disposal of protected health information

    OCR Recommendations: The report concludes with a summary of security standards and implementation specifications that, based on investigations, need improvement. The OCR urged covered entities to focus on the following areas:

    • Risk analysis and risk management processes

    • Information system activity reviews

    • Audit controls

    • Security awareness and training

    • Authentication processes

    Links to OCR Reports

    Compliance Report

    Breach Notification Report

  • 401(k) Update: Q2 2022

    401(k) News

    SECURE Act 2.0 Passes the House1

    The Securing a Strong Retirement Act of 2021 (aka SECURE Act 2.0) was passed by the House of Representatives on March 29, 2022. The measure is intended to build upon the original SECURE Act of 2019 and provide for additional improvements to the retirement savings industry. 

    Below is an outline of key provisions that would apply to existing retirement plans:
    • Raising the Required Minimum Distribution age from 72 to age 75 by 2032.
    • Requiring all catch-up contributions to be subject to Roth tax treatment and increasing the allowance for participants ages 62 to 64 by an additional $3,500 (for a total of $10,000 in catch-up contributions)
    • Allowing employers to make matching contributions to an employee’s retirement account based on the employee’s personal student loan repayments
    • Permitting employer matching contributions to be made as Roth contributions
    • Mandatory eligibility of part-time employees who work more than 500 hours for two years consecutively
    • Creation of a national retirement savings lost and found registry to aid in locating missing participants
    • Penalty-free withdrawal exception for participants who experience domestic abuse 
    • Requiring newly established plans to implement an automatic enrollment feature (not applicable to existing plans)
    Now that the bill has passed the House, the legislation will move to the Senate for possible action later this Spring. There are other bills that overlap these goals so please note that certain details may change as these bills move through the legislative process.

    As with any major reform, we expect there will be a period of time between this legislation being enacted into law and when new changes will be implemented into retirement plans, as service providers will first need to update their systems and records to align with all new provisions. We look forward to keeping you informed of any updates and progress on the SECURE Act 2.0.

    To Crypto or not to Crypto? 

    Cryptocurrency, also known as “crypto,” is a digital currency that does not have a central issuing or regulating authority (such as a central bank like the Federal Reserve) and instead, uses a decentralized system to record transactions and issue units. Cryptocurrencies have skyrocketed in notoriety and public attention over the last few years, and this has employers asking – Is crypto an investment offering we should make available in our retirement plan? Our current answer to this is a resounding No.
    There have been two relevant developments in the world of digital currencies:
    1.  On March 10, 2022, the Department of Labor issued guidance on 401(k) Plan Investments in “Cryptocurrencies”2 cautioning “…plan fiduciaries to exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan….” The guidance reminds plan sponsors that they may be personally liable for cryptocurrency investments that do not meet “an exacting standard of professional care,” and that they “may not shift responsibility to plan participants to identify and avoid imprudent investment options, but rather must evaluate the designated investment alternatives made available to participants and take appropriate measures to ensure that they are prudent.”
    2. On March 28, 2022, Representative Stephen Lynch, Chairman of the House of Representatives Committee on Financial Services’ Task Force on Financial Technology introduced the Electronic Currency and Secure Hardware Act3 (aka ECASH Act). The bill instructs the Secretary of the Treasury “to develop and pilot digital dollar technologies that replicate the privacy-respecting features of physical cash, in order to promote greater financial inclusion, maximize consumer protection and data privacy, and advance U.S. efforts to develop and regulate digital assets.”
    While these two developments may seem at odds to with each other, they speak to the search in Washington DC for the government’s role in the regulation and/or development of digital currencies.
    We will continue to monitor this space as we expect to hear more about crypto and its potential place (or prohibited role) in retirement plans.


    Independent Audit Time for Large Retirement Plan Filers 

    Now that the retirement plan nondiscrimination testing season is wrapping up for calendar year retirement plans, steps should be taken toward completion of the annual independent audit. The independent audit report must be included with the Form 5500 filing, due on July 31st, or October 15th, for plans that are on the extended filing due date.

    The independent audit requirement applies to employers who sponsor “large” plans – those with over 100 participants on the first day of the Plan Year (January 1st for Calendar Year plans). There are special rules that allow for growing companies to first exceed 120 participants before becoming subject to the audit requirement, and thereafter continue being subject to the requirement while staying above the 100-participant threshold. Please contact Vita Planning Group if you have questions about whether the independent audit applies to your plan.

    For other important dates on the horizon, download our online Compliance Calendar.

    Plan Document Restatement

    We are coming to the end of the current, Third Cycle Plan Document Restatement4 period. 401(k) and 403(b) plans that use an IRS-pre-approved plan document created by their recordkeeper or third-party administrator are required to complete this restatement process by July 31, 2022.

    Many plans will have already completed the Plan Document Restatement Process; those that have not should reach out to their recordkeeper to ensure compliance with the plan restatement timing.


    An important deadline is on the horizon for California employers (with 5 or more employees) who do not sponsor a company retirement savings plan. Employers without a retirement plan are required to either offer a workplace savings plan or sign up for the state-mandated CalSavers4 Retirement Savings Program by June 30, 2022. 

    Employers who already offer a retirement plan to employees are exempt from CalSavers and should report the exemption online, if you have not done so already. For more information about CalSavers, visit Calsavers.com.

    Market Update5

    All asset markets finished Q1 2022 down, but there were signs of resiliency despite the triple whammy of a spike in Omicron COVID infections globally, the rise of interest rates in the US and the Russian invasion of Ukraine. In the US equity markets, the S&P 500 bounced off its low of -13% on March 14th to finish the quarter down 4.6%. The bond markets fared less well, experiencing a steady, one-way decline throughout the quarter with the BarCap US Aggregate Bond Index finishing down 5.9%. Overseas equity markets also saw a steady decline with the MSCI All Country World ex US Index down 4.7% for the quarter. European markets were most directly affected by the events in Ukraine, but emerging Market less so. One reason is that Russia’s weight in the MSCI Emerging Market Index had been steadily declining, from a high of 10% in 2008 to just under 4% when MSCI removed it from the index on March 2, 2022.6 The other reason is that Emerging Market economies tend to have a higher percentage of primary industries hence may benefit from the increase of energy and other commodity prices. 

    The American economy has continued its solid performance. The US economy is now 3.4% above pre-COVID levels. Although Q4 2021 GDP growth was 5.5% YOY, the spike in Omicron COVID cases along with inventory building at the end of 2021 may result in weaker GDP growth in Q1 2022 of between 1%-2%. However, by the end of Q2 2022, the US economic growth should be right back to its 20-year trend line of 2% per year. One very interesting impact of the COVID recession has been the impact on US productivity. Since 2020, US productivity has increased by 2.7% per year, more than twice its 20-year average, much of that driven by more efficient work practices (conference calling, working from home, etc.) and use of online retailing. While many of those productivity gains may be permanent, as part of a “new normal,” the constraint on GDP growth in the future will be labor force participation. 

    Unemployment in March 2022 was 3.62%. This is 40% below the 50-year average of 6.2% and there have only been five months since 1961 with a lower rate of unemployment. The JOLTS index of job openings shows a 3.5 million gap between the number of jobs to those unemployed: there are 1.89 jobs for each one American looking for work. This situation has resulted in accelerated wage growth. Wages in March grew at an annual rate of 6.7%, well above the 50-year average of 4%. The US does not have the population growth to fill the demand for labor, so unemployment is expected to continue at these historically low levels. The lack of labor force participation in the US will constrain GDP growth over the long-term; in the short-term, it will continue the pressure on wages, adding to inflation in the US.

    The re-emergence of inflation, the dramatic rise in oil prices, and sanctions against Russia caused some economists to predict a return of the “stagflation” (low GDP growth and high inflation) of the 1970s.7 However, it is important to keep some perspective on how current economic conditions are different. First and foremost is the fact that the US is not reliant on imported oil. Energy as a percentage of consumer spending has diminished from 10% in the 1970s to 4.3% in February 2022, and oil imports have declined from 3.2% of GDP in 1979 to zero at the end of 2021. Yes, the rise in energy prices will be a drain on the finances of US consumers, but it should be transitory as higher oil prices bring currently mothballed US capacity back online and those extra dollars spent on oil will be kept circulating in the US economy. In addition, the finances of US households are much healthier. In the ‘70s, debt payment as a percentage of disposable income was 10.6%, rising to 13.2% during the Great Financial Crisis of 2008/09. Today it is a 9.2% and the net balance sheet of US households stands at $162.7 trillion, nearly twice the pre-2008/09 recession peak of $85.1T. Finally, whereas the Soviet Union of the ‘70s stylized itself as the champion of the Third World, including OPEC, against the West, today Russia has shown itself as an enemy of national self-determination and its invasion has elicited an unprecedently swift and strong reaction from the West and most developing countries.

    Asset markets are now having to deal with geopolitical forces that were not present just three months ago. But strong fundamentals should continue to present opportunities for long-term US investors. US corporate margins finished 2021 at an all time high of 14.3% (earnings/sales). US corporate earnings finished at $221/share and are expected to continue to grow between 10%-20% in 2022. Value stocks have historically done better in a rising interest rate environment because of the prevalence of financial, energy, and industrial companies in this market sector. Within fixed income, high yield, leveraged loans, and convertibles have historically been the best performing sectors when interest rates rise. Volatility will most certainly be a feature of markets in 2022, but not a lack of healthy long-term investment opportunities.

    This material represents an assessment of the market and economic environment at a specific point in time and is not intended to be a forecast of future events, or a guarantee of future results. Forward-looking statements are subject to certain risks and uncertainties. Actual results, performance, or achievements may differ materially from those expressed or implied. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.
    Past performance does not guarantee future results.

    1. https://www.natlawreview.com/article/secure-20-what-employers-need-to-know
    2. Department of Labor Compliance Assistance Release No 2022-01 “401(k) Plan Investments in “Cryptocurrencies”.
    3. https://ecashact.us/
    4. https://employer.calsavers.com/home.html
    5. Unless otherwise indicated, data and commentary is sourced from three JPMorgan Asset Management sources: 1) Guide to the Markets – U.S. Economic and Market Update, 1Q 2022, December 31, 2021, 2) the “Q1 2022 Guide to the Markets Webcast” on April 4, 2022, and 3) JPM Weekly Market Recap of April 4, 2022.
    6. Article: "Russia’s Diminished Role in Emerging Markets"
    7. Article: "What is Stagflation..."


    Cryptocurrency is a digital representation of value that functions as a medium of exchange, a unit of account, or a store of value, but it does not have legal tender status. Cryptocurrencies are sometimes exchanged for U.S. dollars or other currencies around the world, but they are not generally backed or supported by any government or central bank. Their value is completely derived by market forces of supply and demand, and they are more volatile than traditional currencies. Cryptocurrencies are not covered by either FDIC or SIPC insurance. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of cryptocurrency. 

    Purchasing cryptocurrencies comes with a number of risks, including volatile market price swings or flash crashes, market manipulation, and cybersecurity risks. In addition, cryptocurrency markets and exchanges are not regulated with the same controls or customer protections available in equity, option, futures, or foreign exchange investing.

    Indices are unmanaged and investors cannot invest directly in an index. Unless otherwise noted, performance of indices do not account for any fees, commissions or other expenses that would be incurred. Returns do not include reinvested dividends.

    The Standard & Poor's 500 (S&P 500) is an unmanaged group of securities considered to be representative of the stock market in general. It is a market value weighted index with each stock's weight in the index proportionate to its market value.

    The Bloomberg Barclays US Aggregate Bond Index, or the Agg, is a broad base, market capitalization-weighted bond market index representing intermediate term investment grade bonds traded in the United States. Investors frequently use the index as a stand-in for measuring the performance of the US bond market.

    The MSCI All Country World Index ex USA Investable Market Index (IMI) captures large, mid and small cap representation across 22 of 23 Developed Markets (DM) countries (excluding the United States) and 23 Emerging Markets (EM) countries*. With 6,062 constituents, the index covers approximately 99% of the global equity opportunity set outside the US.
    National Association of Real Estate Investment Trusts

    The MSCI Emerging Markets Index is a float-adjusted market capitalization index that consists of indices in 21 emerging economies: Brazil, Chile, China, Colombia, Czech Republic, Egypt, Hungary, India, Indonesia, Korea, Malaysia, Mexico, Morocco, Peru, Philippines, Poland, Russia, South Africa, Taiwan, Thailand, and Turkey.

  • Telehealth Exemption for HDHPs Extended

    In March 2022, Congress passed, and the President signed, a $1.5 trillion omnibus spending bill (the Consolidated Appropriations Act, 2022). This law includes a temporary extension of the ability for HDHP plans to provide telehealth and other remote care services without being subject to the deductible. Importantly, this avoids the problem of having that no-deductible coverage disqualify contributions to health savings accounts (HSA). This provision restores employers’ option to adopt pre-deductible telehealth visits in their HDHP plans (but it does not mandate it).

    Since the early days of the COVID-19 pandemic, telehealth has been an important way to obtain necessary medical care while maintaining recommended social distancing. Because of this, most employers adopted these provisions to enhance access to COVID-safe office visits for participants in HDHP plans.


    By way of background, tax-advantaged contributions generally cannot be made to an HSA unless the account holder is covered by a qualifying high-deductible health plan (HDHP) and does not have disqualifying non-HDHP coverage. The CARES Act (signed in March 2020) created exceptions to those rules to facilitate the use of telehealth during the COVID-19 pandemic, however, those exceptions applied only to plan years beginning on or before December 31, 2021. The new legislation restores these exceptions for the last nine months of 2022.

    The vast majority of employer-sponsored HDHPs with HSAs elected to cover telehealth services on a pre-deductible basis. Specifically, 83% of fully insured plans and 81% of self-insured plans, according to a study from the trade group America's Health Insurance Plans (AHIP). As a reminder, the HDHP minimum statutory deductible for 2022 is $1,400 for single coverage and $2,800 for family coverage.

    Two Key Provisions

    The new legislation amends two key provisions for HSAs:
    1. Telehealth and other remote care services will be considered disregarded coverage; therefore, such pre-deductible coverage will not cause a loss of HSA eligibility. This new provision applies from April 1, 2022 through December 31, 2022.
    2. Plans may provide coverage for telehealth and other remote care services before the HDHP minimum deductible is satisfied without losing their HDHP status during that nine-month period.

    Both amendments apply only to the nine-month period from April 1, 2022 through December 31, 2022, without regard to the HDHP’s plan year. Importantly, the relief does not apply for the first three months of 2022, therefore some plans (specifically, calendar-year plans) must still apply the minimum deductible to telehealth and other remote care services during those months to remain compliant.

    Not Retroactive - A Few Wrinkles

    Permissive, Not Mandatory: The legislation offers permission for plans to adopt these changes, but the changes are not mandatory. Thus, HDHPs are not required to waive their minimum deductible for telehealth and other remote services during the additional relief period. As a result, some plan sponsors may conclude that a midyear change to take advantage of the restored exception is too difficult to communicate and administer, and not worth the effort.

    Pre-Deductible Coverage Gap: The legislation also is expressly not retroactive, and this leaves an unfortunate gap in first-dollar coverage for participants. HDHP participants in plans that previously adopted this provision have enjoyed telehealth services not being subject to the deductible in 2021 and may do so for nine additional months (April 1, 2022 through December 31, 2022), but this leaves a 3-month gap in first-dollar coverage for these services. This could create confusion for plan participants and certainly would require careful communication.

    Not Retroactive: Plan sponsors, who expected that Congress would extend the CARES Act relief without a gap and thus continued providing telehealth services during the first three months of 2022 without applying the minimum deductible, have a unique problem. Specifically, determining whether their plans can and should apply the minimum deductible to telehealth and other remote services retroactively to the gap period. Some covered individuals may be able to avoid the adverse HSA-eligibility consequences of their plan’s failure to satisfy the minimum deductible requirement during the first three months of 2022 by using the full contribution rule, which allows a full year’s worth of HSA contributions to be made by someone who is HSA-eligible for only a portion of the year. However, that rule may not be available to all plan participants because some may not remain HSA-eligible through December 1, 2022, and some may not remain HSA-eligible throughout the 13-month testing period beginning on that date. If an employer wanted to take corrective action, participants could be billed for any telehealth visits between January 1, 2022 and March 31, 2022. Those billed charges would then apply to the deductible. This solution would require re-adjudicating telehealth claims incurred during those interim months.
  • San Francisco Health Care Security Ordinance Updates

    The San Francisco Health Care Security Ordinance (SF HCSO) requires covered employers to make a minimum health care expenditure on behalf of their covered employees. SF HCSO rules were first issued in January 2008. While it has been in place for many years, many employers are still out-of-compliance or unsure how the rules apply. Additionally, the reporting was waived for the past two years due to COVID Public Health Emergency. That reporting requirement is again required for the 2021 plan year.

    Below is a brief overview of the HCSO. For more details, visit the San Francisco Office of Labor Standards Enforcement (OLSE) page on HCSO, which includes training slides, new rules, an administrative guide and FAQ, as well as links to the required HCSO poster and waiver form. The OLSE page contains a link and instructions for the online Annual Reporting Form due April 30. The reporting form is available now.

    Covered Employers: Have 20+ employees (50+ for non-profits), with 1 or more working in the geographic boundary of San Francisco, and required to obtain a San Francisco business registration certificate. Small employers 0-19 (0-49 non-profit) are exempt.

    Tip: The headcount for determining your company size under HCSO – both for determining applicability and expenditure rate – includes ALL employees, regardless of status, classification, or contract status. That means even temp or contract employees that are 1099 or through an agency still counts!

    Covered Employees: Works an average of 8 or more hours per week in San Francisco and entitled to be paid minimum wage. There is a waiting period of 90 days.

    Tip: Look at the exemption criteria closely. The manager/supervisor exemption is coupled with the salary exemption amount, meaning the two are not separate. An employee needs to make more than the salary exemption (2021: $107,991 annually) AND be considered a manager/supervisor/confidential employee per HCSO.

    Calculating Expenditure Rate: Rates are based on employer size and are calculated per hour payable to covered employees. For 2021, a medium size employer is 20-99 employees (50-99 non-profit) with a rate of $2.12 per hour, while a large employer is 100+ employees with a rate of $3.18 per hour. Keep in mind the new expenditure for 2022 is $2.20 per hour for the medium sized employers outlined above and $3.30 per hour for large employers.

    Tip: Hours worked include both paid and entitled, like PTO. Maximum hours for the calculation is capped at 172 a month.

    Making Expenditures: For your full-time, benefit eligible employees, average costs for medical, dental, and vision can be used. For most employers, the minimum expenditure is easily reached. For 2021, a large employer would need to spend approximately $547 a month on an exempt or 40-hour non-exempt employee (that number increases to approximately $568 for 2022). Most medical, dental, and vision premiums, when combined, would exceed that amount. Just be sure to factor out employee contribution amounts. For non-benefit eligible employees, the expenditure would be made quarterly. The simplest method for making an expenditure is via the San Francisco City Option.

    Tip: Being benefit eligible does not immediately mean that HCSO requirements are met and expenditures do not need to be made. If a benefit-eligible employee waives the employer’s company sponsored health plan, the employer is still required to make a minimum expenditure on behalf of that employee. That means paying into the City Option, similar to non-benefit eligible employees. The exception is if the employee voluntarily signs the HCSO Waiver Form. You may NOT coerce an employee to sign the form and the form language dissuades one from signing it! Due diligence would mean sending the form to a waived employee and if the employee chooses not to sign, be sure to make the quarterly expenditure.

    Due Dates: Quarterly expenditures are due 30 days following the end of the quarter. First quarter 2022 will be due April 30. Annual Reporting to HCSO of covered employees and expenditures made for the 2021 plan year are also due April 30 and is completed online. The online reporting form is available now. 

    Risk:There are penalties for non-compliance – up to $100 per employee per quarter for failure to make expenditures and up to $500 per quarter if the annual reporting is not submitted. There are other penalties as well for retaliation, failure to provide records to OLSE, and failure to post the required notice. However, while there’s no guarantee, the OLSE generally does not fine an employer that has been out-of-compliance that now comes into compliance. The bigger risk is if an employee complains as that is generally when the OLSE would take action and penalize for non-compliance.


    More Information 

    SF HCSO Resources including training slides, rules, and administrative guide and FAQs. This site also contains instruction links.  


  • California Dental Summary of Benefit Coverage

    In 2018, CA passed SB 1008 which requires fully insured dental plans in California to provide a dental Summary of Benefits Coverage. This requirement mirrors the health plan Summary of Benefits Coverage introduced by the Affordable Care Act, only this law applies to dental plans.

    The intention behind the ACA provision was to make it easier for employees to compare their medical plan options (in an apples-to-apples format). Now, California has added an equivalent disclosure for dental plans.

    Fully Insured Dental Plans Only

    This applies to fully insured dental plans only, as self-funded plans are exempt from state legislative authority. Only plans written in California are subject to this disclosure law.

    Required Format

    The law prescribes that the Summary of Dental Benefits Coverage (SDBC) follow a very specific format. The law outlines the “uniform benefits and disclosure matrix” down to the requirement to use an Arial 12-point font. This matrix has been dubbed the dental SBC or SDBC.

    Who Must Create the SDBC?

    Insurance carriers are responsible for creating and providing the dental SBC to employers.

    Distribution Requirements

    Employers must distribute the dental SBCs to all eligible employees. The dental SBC must be distributed at the following times:

    1. Upon being newly eligible

    2. At open enrollment

    3. At Special Enrollment

    The method of distribution must be in one of three formats:

    1. Paper form free of charge to the individual’s mailing address

    2. Electronically by email

    3. Electronically by directing the participant to the insurer’s website for a copy of the dental SBC.

    In the case of either electronic distribution option, notice must be provided that a paper copy is available free of charge.

    Effective Date

    The effective date for this law is January 1, 2022, so dental carriers are now required to provide dental SBCs to employer groups.

    How Does ERISA Fit In?

    Generally, ERISA preempts state laws that “relate to” employee benefit plans. This typically relegates state legislators to governing (or mandating) insurers, not employers sponsoring employee benefit plans. In this case, legislators have done a bit of an end-run around by including specific “Group Policyholders Obligations” in the law. Most pundits would say that the inclusion of Group Policy Holder Obligations regulates something that “relates to” an employee benefit plan (in this case a dental plan) by specifically requiring employers to provide the dental SBC matrix disclosures to plan participants.

    While the insurer provisions are not controversial, the employer disclosure requirements will likely be challenged at some point. That said, in the meantime, employers would be wise to include the dental SBCs with their health plan SBC disclosure materials.

    What are Dental Carriers Doing?

    At this point, we are seeing dental carriers, well, scrambling. Despite the long runway on this law, as a rule, carriers are not prepared to distribute the customized dental SBC to employers. We are seeing carriers send out “generic” dental SBCs (along with directions to pair it with the plan certificate) despite the law’s very detailed customization instructions. It is our sense that carriers have been expecting the law to be challenged, and thus have been lulled into non-action. But with 2022 here, the carriers are now scrambling to get something out to comply with the law.

  • COVID National Emergency Extended

    President Biden again formally extended the COVID-19 National Emergency (which was previously set to expire on March 1, 2022). Each National Emergency declaration generally lasts for one year unless the President announces an earlier termination or an extension (for up to another year). President Trump first declared the National Emergency on March 1, 2020. On Feb. 24, 2021, President Biden extended the National Emergency. Most recently, it was unclear whether President Biden would extend it again because, although many stakeholders requested another extension, the Biden administration is also facing some political pressure to move the country onto an "off-ramp" from the COVID-19 pandemic. Nonetheless, a formal extension was made. However, it is possible that President Biden could take action to end the National Emergency in the coming months (assuming COVID-19 cases, hospitalizations, and deaths continue to decline).

    Employee Benefits Deadlines Will Be Further Tolled

    As a result, the “tolling” of health, welfare, and retirement plan deadlines will also remain in effect. This means plan sponsors and administrators should continue to apply the deadline extensions to affected individuals on a participant-by-participant basis for the foreseeable future. This further extension means that the deadlines summarized below must continue to be tolled for one year or for 60 days from the end of the National Emergency (if President Biden declares an earlier end to the National Emergency).

    The First Year of the National Emergency

    Shortly after the COVID-19 pandemic began, joint guidance from the Department of Labor and the Department of the Treasury suspended, or “tolled,” certain deadlines for benefit plans and participants for the period beginning on March 1, 2020 and ending 60 days after the announced end of the National Emergency. This extension period is referred to as the “Outbreak Period.” The following deadlines were extended by the length of the Outbreak Period.

    For Participants:
    • HIPAA Special Enrollment. The 30-day deadline (or 60-day deadline, in some instances) to request enrollment in a group health plan following the loss of other group health plan coverage, the acquisition of a new dependent through marriage, birth, adoption or placement for adoption or the eligibility for premium assistance through state premium assistance subsidy, Medicaid, or CHIP.
    • COBRA Notifications (by Employee to Employer). The 60-day deadline by which individuals must notify the plan of certain COBRA-qualifying events (such as a divorce or a child losing eligibility as a dependent under the plan), or a Social Security Administration determination of disability.
    • COBRA Elections. The 60-day deadline for electing COBRA coverage.
    • COBRA Premium Payments. The 45-day (initial) and 30-day (subsequent monthly) COBRA premium payment deadlines.
    • Benefit Claims and Appeals. The plan deadlines by which participants may file a claim for benefits (under the terms of the plan) and the deadline for appealing an adverse benefit determination. This includes extensions of claims filing deadlines for Health FSAs.
    • External Review. The 4-month deadline by which a claimant must request an external review of a final determination on appeal.

    For Employers/Plan Sponsors:
    • COBRA Notifications (by Employer to QB). The 14-day deadline to provide a COBRA election notice to qualified beneficiaries or the 44-day (14+30 days) deadline for employers who are plan administrators.

    The Second Year of the National Emergency

    Because the COVID-19 pandemic had not yet ended at the time the regulatory guidance was set to expire, the DOL issued additional guidance in February 2021, providing that the deadlines would continue to be tolled, or remain disregarded, through the earlier of:
    • One year from the date the individual was first entitled to the extension relief (i.e., a date on or after March 1, 2020).
    • 60 days after the end of the National Emergency (i.e., the end of the Outbreak Period).
    Importantly, the second year ushered in the position that the tolling period applies on a person-by-person basis. It can be challenging to track these deadlines when the tolling period applies, so plan administrators need to take care that they are calculating the deadlines correctly.

    The Third Year of the National Emergency

    While this latest extension of the National Emergency does not change the previous guidance, it does further extend the timeline of the tolling period; participants will continue to have more time to act on these deadlines than they normally would under the applicable plan terms. Note that the individualized tolling periods continue into the third year. Also, because the National Emergency’s end remains open at this time, exactly how long participants have under these deadlines remains a moving target until the National Emergency ends.

    Different from the Public Health Emergency

    Importantly, this National Emergency declaration is different from the Public Health Emergency declaration made by the Secretary of HHS, which is tied to the COVID-19 testing requirements in the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

    The Public Health Emergency is set to expire on April 16, 2022. However, the Secretary may extend it for subsequent 90-day periods for as long as the public health emergency continues to exist or may terminate the declaration whenever it is determined that the public health emergency has ceased to exist.