Following a brief shutdown of the federal government, on February 9, Congress passed and President Donald J. Trump signed into law the Bipartisan Budget Act of 2018 (Budget Act), which provides Congress until March 23 to enact appropriation and certain other funding measures and establishes a general agreement on spending that will last into 2019. The Budget Act includes various changes that affect employer-sponsored health benefit and retirement plans.

The Budget Act authorizes numerous changes under Medicare programs including Medicare Advantage programs that some employers have implemented to provide coverage to retirees. Changes to Medicare that may be meaningful to health benefit plan sponsors include:

  • Medicare Advantage plans may offer telehealth medical services as supplemental Medicare benefits to chronically ill members beginning in 2020. Telehealth services provide expanded access, via the internet, to health care providers and have increasingly become incorporated into plans offered by plan sponsors in the private sector as well as insurers. The Budget Act further instructs the Department of Health and Human Services (HHS) to develop regulatory guidance to expand the availability of telehealth medical services to all Medicare Advantage enrollees.

  • The Budget Act eliminates the Medicare Independent Payment Advisory Board (IPAB) which was established under the Affordable Care Act (ACA), to develop strategies to control growth in Medicare spending. The Congressional Budget Office (CBO) estimates that eliminating the IPAB will increase federal spending by $17.5 billion between 2018 and 2027.

  • The Budget Act advances the elimination of the "donut hole" in Medicare Part D (the gap in which prescription drug expenses under Part D are not covered) from 2020 to 2019. In addition, a larger discount will apply to Part D prescription drugs, reducing the amount that health plans will need to cover.

The Budget Act also addresses specific federal government funding changes for health care, including increased funding for opioid addiction treatment and prevention and community health centers. As with Medicare Advantage plans, the Budget Act aims to expand access to telehealth services through Accountable Care Organizations (ACOs). Following on the heels of the six-year extension to the Children's Health Insurance Program (CHIP) under last month's Congressional agreement, the Budget Act adds an additional four years of funding for CHIP. The Budget Act also provides for a further two-year delay in the ACA's gradual elimination of funding for hospitals that serve a disproportionate share of Medicaid and uninsured patients (DSH). Under the Budget Act, the reductions in DSH funding will not start until 2020.

Notably, the Budget Act does not contain any provisions to stabilize costs in the individual health insurance markets. In particular, the Budget Act does not provide any interim funding for the ACA's cost-sharing reduction subsidies (CSRs) that are designed to assist low-income individuals with out-of-pocket health insurance costs and which the Trump administration stopped funding in October 2017. While legislation was considered to establish certain funding mechanisms, such as reinsurance pools, to provide further stability for health insurance markets, the Budget Act did not adopt any such proposals.

The Budget Act enacts the following modifications to hardship rules for employer-sponsored retirement plans which are effective for plan years beginning after December 31, 2018. Employers wishing to adopt these new rules will need to amend their retirement plan document and summary plan description. They include:

  • Elimination of the six-month suspension of deferral contributions following a hardship withdrawal.

  • Availability of earnings on deferral contributions, qualified matching contributions (QMACs), and qualified non-elective contributions (QNECs) for hardship withdrawals.

  • Elimination of the requirement that a participant take all available nontaxable plan loans prior to requesting a hardship withdrawal.

The Budget Act also establishes special loan and distribution rules for individuals suffering losses due to the California wildfires in 2017. The relief available under these provisions is generally comparable to other programs offered by the Federal Emergency Management Agency following natural disasters. Eligible individuals may receive up to $100,000 as a qualified wildfire distribution that is not subject to the typical restrictions on distributions or penalties (including the 10 percent early withdrawal penalty for participants who are under age 59½). Any amount required to be included in the participant's gross income may be included ratably over a three-taxable-year period. Alternatively, participants may repay these distributions back to the retirement plan over a three-year period. The Budget Act also increases the loan amount from a retirement plan available to California wildfire victims to the lesser of a participant's vested account balance or $100,000 (increased from the previous $50,000 limit).

Lastly, under the Budget Act, individuals who obtained retirement plan distributions to pay for IRS levies, which are later deemed invalid, may repay these amounts to the plan and thus avoid taxation and possible penalties.

As the federal health care reform effort gained steam, Ballard Spahr attorneys established the Health Care Reform Initiative to monitor and analyze legislative developments. With federal health care reform now a reality, our attorneys are assisting health care entities and employers in understanding the relevant changes and planning for the future. They also have launched the Health Care Reform Dashboard, an online resource center for news and analysis on developments under the Affordable Care Act.

Attorneys in Ballard Spahr's Employee Benefits and Executive Compensation Group help clients design and implement compensation and benefits packages that comply with today’s complex regulatory requirements, attract and retain a quality workforce, and maintain fiscal and fiduciary responsibility.


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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.




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