DOL Regulations - Live Q&A Session with EBSA - Static Version
Monday, April 26, 2 p.m. EDT
Please note that input received during the course of this web chat is not part of the formal rulemaking process. You can find DOL’s proposed regulations, and submit comments, by visiting www.regulations.gov.
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1:53 Moderator: Our chat will begin at 2 p.m. EDT, but you can submit your questions at any time. This is a text only Q&A, so there will be no audio or video.
2:02 Asst. Sec. Phyllis Borzi: Good afternoon. I am Phyllis Borzi, Assistant Secretary for the Employee Benefits Security Administration. I am very excited to participate in this web chat concerning the Agency’s regulatory priorities for the next several months.
EBSA’s regulatory and enforcement responsibilities under the Employee Retirement Income Security Act – ERISA - extend to more than 700,000 private pension plans, with almost $3 trillions in assets, approximately 2.5 million employer-sponsored health plans and a similar number of other welfare plans.
On behalf of Secretary Solis and the entire EBSA staff – I can say – without reservation – we are committed to protecting the interest of the millions of America’s workers who are dependent on ERISA-covered plans for their economic well-being – whether for retirement, health care or other benefits. We believe this commitment is evidenced, in part, through a regulatory program that is designed to strengthen the protections America’s workers both need and deserve.
I should note at the outset that absent from the Spring Agenda is a listing of the specific regulations necessary to the implementation of the recently enacted Affordable Care Act. Unfortunately, the timing of the Agenda did not lend itself to a detailed listing of these regulatory initiatives. However, in the short time since the new law was enacted, the promulgation of implementing regulations under the Affordable Care Act has been this Agency’s highest priority. We have been working in close coordination with HHS, Treasury and IRS staff on staged guidance that will begin to be issued shortly.
The Departments are focusing first on health reform provisions that are effective for plan years beginning on or after September 23, 2010. Regulations will be issued on an ongoing basis to ensure that guidance is made available as soon as possible. Unfortunately, I am not in a position to share more information about these rules at this time. I assure you, however, that we are working hard to make sure that the rules provide the guidance necessary to ensure both a smooth and timely implementation of the Affordable Care Act, which is so important to so many insured and uninsured workers.
Before turning to your questions about the other Agenda items, I should note that we will be making your questions - with my responses - available on the EBSA website for future review. With that announcement, I will turn to the first question ----
2:04 Comment From Grace: Do you anticipate the COBRA Premium Subsidy being extended beyond the current 15-month maximum?
2:04 Phyllis: Grace, thank you for your question. As of now, we are not aware of legislation on this point.
2:06 Comment From Linda Mendel: Now that we have a health care reform law, will the DOL go ahead with 29 CFR 2510.3-1 defining welfare plan? If yes, are you concerned about layers of federal (PPACA shared responsiblity), state and local play-or-pay laws?
2:06 Phyllis: Linda, thank you very much for your question. With the passage of the Patient Protection and Affordable Care Act, we are reviewing all of our health care initiatives for their interaction with this historic legislation. We will continue that review throughout the next several months and make decisions accordingly.
2:06 Comment From John (via e-mail): understand that EBSA has sent to OMB a draft of a proposed regulation regarding the circumstances in which a health care arrangement maintained by a State or local government for the benefit of non-governmental employees does not constitute an employee welfare benefit plan under ERISA. Where does this stand? Since the draft was prepared before the enactment of PPACA, will EBSA reconsider it in light of PPACA and refrain from issuing the proposed regulation until reconsideration is completed?
2:07 Phyllis: John, thanks for your question. Please see my answer to Linda above.
2:08 Comment From David Pittman: "Amendment to Claims Procudure Regulation" says "This rulemaking is intended to strengthen, improve, and update the current rules governing the internal claims and appeals process." In what ways do current processes need to be strengthened, improved, or updated? What was the basis for determining that this was needed?
2:08 Phyllis: David, thank you for your question. We have requested and received input from our benefit advisors and investigators regarding problems they have had to deal with over the years in the claims procedure area. We have also filed amicus briefs in a number of disability and other cases where either the procedures or compliance with the procedures appeared to deficient. This proposed rulemaking is intended to stregthen, improve and update the current rules governing the internal claims and appeals process, especially on notice, disclosure and full and fair review requirements.
2:09 Comment From Jackie: How can Benefit Administrators best prepare for SEpt. 2010 changes at their workplace?
2:09 Phyllis: Jackie, the agencies are working hard on developing training materials and other guidance to implement the Affordable Care Act (ACA) and expect to begin issuing such guidance soon.
2:13 Comment From Estevan: Does the labor department intend to promote any comprehensive pension reform initiatives, such as proposed legislation introduced by the Executive Branch?
2:13 Phyllis: Hi Estevan. Thank you for your question. We are currently working on developing initiatives to deal with some of the problems that exist with both defined contribution and defined benefit plans. Part of this process involves studying the responses to our RFI -- request for information -- on lifetime income streams. We invite you to submit comments via either regulation.gov or our website.
2:14 Comment From DEBBIE: Can you elaborate on CHIPRA requirements for employers?
2:14 Phyllis: Debbie, excellent question. Please see our website (http://www.dol.gov/ebsa/) for all the currently available information on CHIP. In fact, we have a CHIP Working Group website with lots of current information: http://www.dol.gov/ebsa/CHIP.html. You can also subscribe to our website for all future updates on CHIPRA and other health topics at EBSA. You can subscribe here: http://www.dol.gov/dol/email.htm -- just select EBSA updates to get emails as we post new and updated materials.
2:14 Comment From dallas salisbury: I understand the dc fee regulation is pending at OMB. When does the 90 day review window close? Any word yet on the reg prospects vis timing?
2:14 Phyllis: Hi Dallas, The Department's 408(b)(2) regulation was submitted to OMB for review in early March. OMB generally has 90 days to review our regulations. We hope to have this process completed soon.
2:15 Comment From Fred: There appeared some concern over contingent/contract employment. Can you explain further what EBSA's plans are with regard to this issue?
2:15 Phyllis: Fred, multiple agencies within the Department are working on the important issue of misclassification of employees. For more information, you may want to view the Wage and Hour Administration Web Chat on Wednesday at 9 am. http://www.dol.gov/regulations/chat-whd-201004.htm
2:16 Comment From Gene: Is the standard of review of claim denials under review for a possible regulation.
2:16 Phyllis: Gene, the standard of review is one of many issues that will be reviewed in the context of the claims procedure regulation project.
2:16 Comment From Daniel: Hi, Phyllis. Thank you for participating in this chat. You referred above to the coordination underway with Treasury, IRS and HHS on implementation of the Affordable Care Act. Are there any differences in the roles of each department or agency in this project, compared to what-might-be-called the traditional approach (where Treasury, IRS and EBSA divide up the ERISA plan rules, and HHS handles non-ERISA plan rules)?
2:16 Phyllis: Hi Daniel. Thank you for your question. We are continuing to work on implementing regulations under the Affordable Care Act through our traditional three agency process.
2:17 Comment From Gene: Can you briefly describe the regulatory process here. Are the three agencies issuing one set of regulations? How long would interim regulations subject to public comment and hearing remain in effect?
2:17 Phyllis: Gene thanks for your question. Please see my answer to Daniel 2:12.
2:18 Comment From JOHN VINE: I understand that EBSA has sent to OMB a draft of a proposed regulation regarding the circumstances in which a health care arrangement maintained by a State or local government for the benefit of non-governmental employees does not constitute an employee welfare benefit plan under ERISA. Where does this stand? Since the draft was prepared before the enactment of PPACA, will EBSA reconsider it in light of PPACA and refrain from issuing the proposed regulation until reconsideration is completed? Thanks.
2:18 Phyllis: Thanks John, great to have you participate in this Web chat. Our regulation defining what constitutes a welfare plan has not been updated for many years. States have been exploring steps they can take to address health care issues facing their citizens. Questions have arisen concerning whether these health care reform efforts result in the creation of ERISA-covered welfare plans or otherwise implicate ERISA. We are currently reviewing the role of our a regulation in light of the Affordable Care Act.
2:19 Comment From Samuel: Perhaps the biggest impact of the Affordable Care Act on our union-sponsored plan is coverage for children until age 26. Can you comment on a timeline for issuing guidance on this new requirement? We'll need to alter our systems and do a large mailing very soon -- hopefully with DOL guidance in hand.
2:19 Phyllis: Samuel, we are working very hard to issue guidance on all the provisions of the Affordable Care Act that become effective first. We are also encouraging plan sponsors to follow the lead of many of the nation's insurance companies and become early adopters of this provision (i.e., not dropping young adults off coverage, who will become eligible under the new law in a few months).
2:19 Comment From Julie: Do you have an estimate on when the Section 408(b)(2) regulations on plan service providers and expenses can be expected?
2:19 Phyllis: Hi Julie, thanks for your question. We just answered a question about the timing of the 408(b)(2) regulation. Please look at our response to Dallas that was posted at 2:14.
2:19 Comment From Cathy: Is there a proposed timeframe when we (benefit administrators) can expect to see training materials and other guidance on ACA changes for this fall and begining of 2010?
2:19 Phyllis: Cathy, different provisions of the ACA have different effective dates. Several provisions become effective for plan years or policy years beginning on or after September 23, 2010.
2:20 Comment From Daniel: Hi, Phyllis. Is EBSA currently accepting comments and recommendations on issues raised by the Affordable Care Act? If so, where should these comments and recommendations be sent?
2:20 Phyllis: Hi Daniel, thanks for your question. The formal comment period will begin once regulations are published. You will be able to submit comments through either our website -- www.dol.gov/ebsa -- or regulations. gov
2:24 EBSA Tips & Resources: Information on the COBRA Continuation Coverage Assistance under ARRA: http://www.dol.gov/ebsa/cobra.html .
2:27 Comment From Steve: Last week, you mentioned that the Obama administration supported pension relief for single employer plans. What is the administration's position regarding relief for multiemployer pension plans?
2:27 Phyllis: Thank you Steve. The Administration supports funding relief for multiemployer plans similar to that of single employer plans that allows plans a longer time to amortize their liabilities and investment losses.
2:27 Comment From David Pittman: EBSA's agenda includes a new NPRM for the Mental Health Parity and Addiction Equity Act. Were issues raised during the recent Interim Final Rule comment period that necessitated an NPRM?
2:28 Phyllis: David, thanks for your question. There are some remaining issues under MHPAEA that are not covered by the recently published IFR. This NPRM is the first step in addressing those issues.
2:28 Comment From Mark: Followup on Comment From David Pittman "Amendment to Claims Procedure Regulation" - Can you tell us the status of this initiative - timing, etc.
2:28 Phyllis: Thanks Mark. As reflected in the new agenda, we originally targeted April 2011 for publication of a proposal. That date was determined prior to the enactment of the Affordable Care Act. It is very likely that we will have to accelerate publication of a proposal -- at least to accommodate those changes necessitated by the Affordable Care Act.
2:29 Comment From Nancy: do you know how employers will notify the DOL or the IRS that they currently have an EE Welfare Plan so they may be grandfathered? Will ilt be under the current CMS reporting that they have to do?
2:29 Phyllis: Nancy, the Departments of Labor, HHS, and the Treasury are developing guidance on several provisions of the ACA, including provisions relating to grandfathered plans. We expect to be issuing guidance soon.
2:29 Comment From Janae Schaeffer: Hi, Phyllis - Will the claims and appeals regulation be affected by Health Care Reform and if so, can you tell us anything about how? Were you going to make changes in that regulation that were not impacted by Health Care Reform? If so, can you tell us the type of non-health care reform changes were contemplated?
2:30 Phyllis: Thanks Janae, yes the claims and appeals regulation will be affected by healthcare reform. It is already on the agenda and we are going to look at it in the context of healthcare reform.
2:32 Comment From Anne DeWitt: Since 1/1/11 OTC items will no longer be runnable through a Flex Plan, will FSA Participants be allowed to adjust their election to their MED FSA?
2:32 Phyllis: Anne, that is question for another agency. The conditions and requirements for FSA elections are within the jurisdiction of the Treasury Department/IRS. You can call our Help Line at 1-866-487-2365 and we can try to direct you to the right contact at IRS.
2:32 Comment From Cathy: It is unclear to me (could just be me) are the ACA changes set to implement in Sept 2010 going to be required to be in effect in Sept or the benefit plasn next renewal date?
2:32 Phyllis: Cathy, good question. As you know, different provisions of the statute have different effective dates. We are aware that employers and issuers will need time to make changes to their coverage to reflect the new requirements of the Affordable Care Act, and we are taking this into account as we develop regulations and guidance.
2:33 Comment From Debbie: Can you provide any information regarding in what ways any fee disclosure regulations EBSA may propose compare to the kinds of fee disclosure requirements that Rep. George Miller has been proposing? Would they be targeted at different kinds of fees? different plans? different parties subject to the disclosure? Thanks.
2:33 Phyllis: Thank you Debbie for your question. The Department's 408(b)(2) regulation currently is being reviewed by OMB. Although we cannot comment on the specific provisions of the interim final regulation, it will apply only to pension plan service providers and our goal continues to be increased transparency of service provider compensation and potential conflicts of interest. The Miller bill has significant overlap and we are studying the proposed legislation.
2:34 Comment From Tod: Will EBSA prepare Model SPD/SMM language in response to the PPACA? If so, when will that be available?
2:34 Phyllis: Tod, EBSA is reviewing all of the new provisions of the historic health legislation and will issue guidance as it completes its review of the various requirements. Please visit our EBSA Web site, www.dol.gov/ebsa, where all guidance will be posted as it becomes available.
2:35 Comment From Stephen: Hi Phyllis: Thank your for taking the time to participate in this web chat. I would like to know if the Department of Labor contemplates any regulatory initiatives that target multiemployer pension plans in particular.
2:35 Phyllis: Stephen, thanks for the question. We have regulation projects on our currrent agenda focused on multiemployer plans, but are not adding any new multiemployer plan projects at this time.
2:36 Comment From Tom Kennedy: Will any amoritization relief on investment losses for multiemployer pension funds be restricted to funds that can certify that they are not at solvency risk?
2:36 Phyllis: Hi Tom. Thanks for your question. While we have not yet taken a position on this issue, we will work with Congress to evaluate the need for any restrictions on funding relief for multiemployer pension plans.
2:37 Comment From Anne DeWitt: Thank you!
2:39 EBSA Tips & Resources: EFAST & EFAST2 Filing Information: http://www.efast.dol.gov/welcome.html
2:39 Comment From Carol: What agency is working on HEART guidance and how is that going?
2:39 Phyllis: Carol, we understand that the IRS has the lead on this matter.
2:43 Comment From Cindy: Will you please provide the link for the EBSA spring agenda? I have not been able to locate it.
2:43 Phyllis: Cindy, you can find information and fact sheets about the Labor Department regulatory agenda, including EBSA's regulations, at http://www.dol.gov/regulations/. You can find the agenda document itself here: http://www.dol.gov/asp/regs/agenda.htm.
2:44 Comment From Linda Jody: Which date would grandfather a retired employee in their pension plan if a notification of critical condition of the pension fund was sent during the transition? 1. The date that paperwork was submitted to retire (before the notification) 2. The actual date of retirement (after the notification was sent but before any modifications were made to the plan) 3. The changes made at a meeting after the person was already retired but waiting for their first pension check?
2:44 Phyllis: Linda thanks for your question. These issues are within the jurisdiction of the Treasury Department/IRS. You can contact the Help Line at 1-866-487-2365 and we can try to direct you to the right contact at Treasury/IRS.
2:46 Comment From Daniel: Hi, Phyllis. Given the short time period between now and September 23, 2010, is regulatory guidance on some aspects of the Affordable Care Act likely to take the form of temporary or interim final regulations, rather than being issued in proposed form?
2:46 Phyllis: Daniel, we are working hard to issue guidance as soon as possible, however, the exact procedure and processes of this guidance remains to be determined.
2:50 Comment From David: The agenda indicates Final Action on "Time and Order of Issuance of DROs" this month. When do you expect to send this regulation to OMB?
2:50 Phyllis: Thank you for your question David. The final regulation was sent to OMB for review and clearance in early March 2010. A list of the Department's regulations under review by OMB can be viewed at www.reginfo.gov.
2:51 EBSA Tips & Resources: Do you need some assistance? Try our toll-free referral line at 1-866-487-2365.
2:51 Comment From peter: Hi Phyllis - any developments on EFAST2 credential sharing for practitioners to assist clients with filings?
2:51 Phyllis: Peter, happy to give you an update. Our objective is to make sure the EFAST2 transition to electronic filing of the Form 5500 and Form 5500-SF is as smooth as possible, especially for small businesses. We should have something to announce very soon on this issue. Keep your eye on our Web site.
2:54 Phyllis: Let's get a show of hands. Who finds these chats helpful and informative?
2:55 Comment From Cathy: I DO!
2:55 Comment From Massiel: I find them very informative. Thanks for the help!!
2:55 Comment From Tom Kennedy: Thanks Phyllis for taking the time to do this -- I thought it was very helpful
2:55 Comment From Julie: Very helpful and informative. Thank you for taking the time to do them.
2:55 Comment From Linda Mendel: Yes. Thanks for doing it.
2:55 Comment From Etienne: Yes
2:56 Comment From Tod: Very
2:56 Comment From DEBBIE ANDRUK: Excellent, and thanks for taking the time.
2:56 Comment From peter: Thanks for reaching out!!
2:56 Comment From Dan: These are very helpful. Thanks for doing them.
2:56 Comment From Carol: You are doing a great job, Phyllis!
2:57 Comment From David: Thanks for the opportunity.
2:57 Comment From cindy: yes, thank you for your time
2:57 Comment From Kristine: Yes this was very helpful! Thank you!
2:57 Comment From Gene: good information, thanks
2:58 Comment From Bob: ditto
2:58 Comment From Mark: These are very helpful. They would be better if you could tell us more about what you can't tell us more about.
3:00 Phyllis: Thank you all for your questions. It is always valuable to hear from our stakeholders. I would like to remind everyone that in order for your comments to be considered as part of the rulemaking process, please submit them to us in writing. You can find directions on how to do this at http://www.dol.gov/regulations/, or at http://www.regulations.gov.
I would also like to thank my wonderful staff for all their help, both in preparing for today, and in answering questions -- as well as in working on these important regulations.
Final PS to Mark – we wish we could tell you more about what we can’t tell you about too.
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