Insights for Employers  
Summary Overview: IRS Notice 2020-29, IRS Notice 2020-33, CARES Act (H.R.748), and DOL's Extension of Deadlines
  Recent Guidance and Changes Applicable Timeframe Mandatory or Optional Compliance Considerations Employer Action Required
Section 125:
Mid-Year Election Changes		 Mid-Year Election Changes
IRS Notice 2020-29 allows cafeteria plans to permit eligible employees to:
-Make a new election, effective prospectively, to pay for employer-sponsored health coverage on a pre-tax basis if the employee had initially declined coverage.
-Revoke an existing pre-tax premium election and make a new election, effective prospectively, to pay for a different type or level of employer-sponsored health coverage on a pre-tax basis.
-Revoke an existing pre-tax premium election to correspond to the cancellation of employer-sponsored health coverage, provided the employee attests that he/she is enrolled, or will immediately enroll, in other health coverage.  (A sample attestation template can be found at IRS Notice 2020-29, page 8.)		 Temporary: through 12/31/2020 only Optional Employer has discretion (e.g., only allow an election change to make a new election, limit changes to a certain time period); however, carrier must agree to permit the changes.  1. Confirm with carrier (as applicable)
2. Notify employees of plan changes
3. Amend plan document by 12/31/2021
Health FSA (including Limited Purpose Health FSA) Extended Run-out Period for Health FSA
The ERISA Claims and Appeals relief noted above may also extend the run-out period for a Health FSA.  For example, if a calendar year plan permits participants to submit valid claims for 2019 expenses until March 31, 2020 (i.e., the run-out period), the Outbreak Period must be disregarded. Meaning, participants would have until 31 days following the end of the Outbreak Period to submit claims for reimbursement (which is the 31 day remainder of the run-out period).  		 Temporary: Outbreak Period is March 1, 2020 until 60 days following end of the National Emergency (which has not yet been announced) Mandatory This extension does not provide additional time to incur claims. 1. Notify plan participants of extended deadlines
Mid-Year Election Changes (Health FSA)
IRS Notice 2020-29 allows cafeteria plans to permit eligible employees to:
-Make any type of mid-year election change (e.g., make a new election, revoke an existing election, or increase or decrease an existing election), effective prospectively, under a Health FSA for any reason.		 Temporary: through 12/31/2020 only Optional Participant's election change cannot cause a decrease below the greater of what has already been contributed or reimbursed. Only eligible expenses that are incurred during the period of coverage can be paid for/reimbursed. 1. Notify employees of plan changes
2. Amend plan document by 12/31/2021
Extended Claims Period
IRS Notice 2020-29 allows certain cafeteria plans to provide an extended period to incur Health FSA claims through December 31, 2020 for unused amounts remaining in the Health FSA.
-Applicable only for Health FSAs with a plan year ending in 2020 or grace period ending in 2020. 
-Health FSAs with a grace period or carryover provision can be amended to allow for this extended claims period.		 Temporary: through 12/31/2020 only Optional If a General Purpose Health FSA is amended to permit the extended period to incur claims, HSA eligibility will be impacted during the extended period (unless there is a $0 FSA balance at the end of the plan year or grace period).  1. Notify plan participants of plan changes
2. Amend plan document by 12/31/2021
Increase in Health FSA Carryover Maximum Amount
IRS Notice 2020-33 increases the Health FSA carryover limit. 
-Amount of unused Health FSA funds participants can carryover starting from the 2020 plan year to the 2021 plan year is increased from $500 to $550 (then, increased by index each year thereafter).
 Permanent: Applicable for 2020 plan year and beyond Optional Carryover amount is subject to increase for future years (as the carryover limit is 20% of the maximum annual Health FSA contribution limit). This change is not a temporary change tied to the COVID-19 public health emergency. Implementing this change does not also allow for a mid-year Health FSA election change (although, the plan can also be amended to permit a prospective election change as mentioned above).  1. Notify plan participants of plan changes
2. Amend plan document by 12/31/2021
Expanded Eligible Expenses for Health FSA
The CARES Act expanded the IRS eligible expenses to include OTC (even without prescription) and menstrual care products. Does not apply to Limited Purpose Health FSAs. 		 Permanent: effective 1/1/2020 Optional Many vendors are assuming plans will include OTC and menstrual care products as part of their eligible expenses and are automatically updating  the plan documents, unless the employer specifically communicates otherwise (i.e., to not include such expenses). Employers should discuss with any applicable vendors accordingly.  1. Notify plan participants of additional eligible expenses (i.e., OTC and menstrual care)
2. Review plan document and update as needed 
Dependent Care FSA Mid-Year Election Changes (Dependent Care FSA)
IRS Notice 2020-29 allows cafeteria plans to permit eligible employees to:
-Make any type of mid-year election change (e.g., make a new election, revoke an existing election, or increase or decrease an existing election), effective prospectively, under a Dependent Care FSA for any reason.		 Temporary: through 12/31/2020 only Optional Note that under current Section 125 rules, participants may prospectively change their election amount or revoke election per the IRS allowable event of a "change in the cost and coverage." 1. Notify employees of plan changes
2. Amend plan document by 12/31/2021
Extended Claims Period
IRS Notice 2020-29 allows certain cafeteria plans to provide an extended period to incur Dependent Care FSA claims through December 31, 2020.
Temporary: through 12/31/2020 only Optional Applicable only for Dependent Care FSAs with a plan year ending in 2020 or grace period ending in 2020.   1. Notify plan participants of plan changes
2. Amend plan document by 12/31/2021
HRA Extended Run-out Period for an HRA
The ERISA Claims and Appeals relief noted above may also extend the run-out period for an HRA.  For example, if a calendar year plan permits participants to submit valid claims for 2019 expenses until March 31, 2020 (i.e., the run-out period), the Outbreak Period must be disregarded. Meaning, participants would have until 31 days following the end of the Outbreak Period to submit claims for reimbursement (which is the 31 day remainder of the run-out period).  		 Temporary: Outbreak Period is March 1, 2020 until 60 days following end of the National Emergency (which has not yet been announced) Mandatory This extension does not provide additional time to incur claims. 1. Notify plan participants of extended deadlines
Timing for ICHRA Reimbursements Clarified
IRS Notice 2020-33 clarifies that a plan is permitted to treat an expense for a premium for health insurance coverage as incurred on (1) the first day of each month of coverage on a pro rata basis, (2) the first day of the period of coverage, or (3) the date the premium is paid.
 Permanent  Optional For example, an ICHRA with a calendar year plan year may immediately reimburse a substantiated premium for health insurance coverage that begins on January 1 of that plan year, even if the covered individual paid the premium for the coverage prior to the first day of the plan year. 1. Notify plan participants of any changes to claims substantiation processes
Expanded Eligible Expenses for HRA
The CARES Act expanded the IRS eligible expenses to include OTC (even without prescription) and menstrual care products. 		 Permanent: effective 1/1/2020 Optional Many vendors are assuming plans will include OTC and menstrual care products as part of their eligible expenses and are automatically updating  the plan documents, unless the employer specifically communicates otherwise (i.e., to not include such expenses). Employers should discuss with any applicable vendors accordingly.  1. Notify plan participants of additional eligible expenses (i.e., OTC and menstrual care)
2.  Review plan document and update as needed
HSA HSA Eligibility
IRS Notice 2020-29 clarifies that previous guidance regarding coverage related to COVID-19 without cost-sharing (or low cost-sharing) and the exemption for telehealth services may be applied retroactively to January 1, 2020.		 Temporary: applies to plan years beginning on or before 12/31/2021 Mandatory As background, IRS Notice 2020-15 (issued March 11, 2020) explained that HDHPs can cover testing and treatment of COVID-19 at low or no cost-sharing without impacting one’s ability to make or receive contributions into an HSA.
Further, the CARES Act provides a temporary safe harbor for providing coverage for telehealth services – allowing HDHPs to cover telehealth without a deductible so that an otherwise HSA eligible individual with coverage under an HDHP may receive coverage for telehealth before satisfying the deductible of the HDHP and still contribute to an HSA.
1. Notify plan participants 
Expanded Eligible Expenses for HSA
The CARES Act expanded the IRS eligible expenses to include OTC (even without prescription) and menstrual care products. 		 Permanent: effective 1/1/2020 Mandatory An HSA, as an individual account owned by the account holder, can be used for the expanded eligible expenses.  1. Notify plan participants of additional eligible expenses (i.e., OTC and menstrual care)
2.  Review plan document and update as needed
HIPAA:
Special Enrollment		 Extended Deadlines
Disregard Outbreak Period when calculating the following deadline:
-30- or 60-day deadline to request a special enrollment under HIPAA
 Temporary: Outbreak Period is March 1, 2020 until 60 days following end of the National Emergency (which has not yet been announced) Mandatory This extension is only applicable to enrollment requests that are HIPAA special enrollment rights (acquisition of a dependent via marriage/birth/adoption, loss of eligibility for other group coverage/Medicaid or CHIP, gain of eligibility for Medicaid or CHIP premium assistance program). For example, a request to drop coverage due to marriage is not a HIPAA special enrollment right. 1. Notify employees of extended deadlines
ERISA:
Claim Deadlines/ Appeals		 Extended Deadlines
Disregard Outbreak Period when calculating the following deadlines:
-Deadlines for individuals to file claims for benefits, for initial disposition of claims, and for providing claimants a reasonable opportunity to appeal adverse benefit determinations under ERISA plans and non-grandfathered group health plans.
-Deadlines for providing a state or federal external review process following exhaustion of the plan's internal appeals procedures for non-grandfathered group health plans.		 Temporary: Outbreak Period is March 1, 2020 until 60 days following end of the National Emergency (which has not yet been announced) Mandatory This will impact HRA and Health FSA administration if the claims runout period falls within the Outbreak Period (see HRA and Health FSA sections). 1. Notify plan participants of extended deadlines
COBRA Extended Deadlines
Disregard Outbreak Period when calculating the following deadlines:
-60-day COBRA election period
-30- or 60-day deadline to notify the plan of a COBRA qualifying event
-60-day deadline to notify the plan of a determination of a disability
-14-day deadline to furnish COBRA election notices
-45-day deadline for participants to make first COBRA payment
-30-day deadline for subsequent COBRA premium payments		 Temporary: Outbreak Period is March 1, 2020 until 60 days following end of the National Emergency (which has not yet been announced) Mandatory These extensions present COBRA administration challenges, particularly for elections and payments. An employee must have until the extended due date to make an election or payment (coverage would be retroactive as long as the election and payment is made by the extended due date). Employers should discuss with their COBRA administrator, TPA, and carrier (as applicable) regarding how the coverage election and coverage termination/reinstatement will be administered.  1. Notify COBRA qualified beneficiaries and plan participants of extended deadlines
2. Modify COBRA notices
Additional Resources:
IRS Notice 2020-29
IRS Notice 2020-33 
Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak Final Rule
EBSA Disaster Relief Notice 2020-01 
CARES Act