With limited clarifications, the final regulations track the proposed rules issued in the December 6, 2021 Notice of Proposed Rulemaking, which we discussed in a December 9, 2021 insight, “Guidance on ACA Reporting for 2021.” In summary, the final regulations:

1. Provide a permanent automatic 30-day extension of the deadline for group health plans and employers to furnish Forms 1095-B and 1095-C to employees and plan participants from January 31 to March 2
2. Provide an alternative method for furnishing Form 1095-B to participants if certain conditions (described below) are met
3. Confirm that transitional good-faith relief has been eliminated for calendar years after 2020

Background

The ACA created new reporting requirements related to enforcement of the individual shared responsibility penalty, the employer shared responsibility penalty and the premium assistance tax credits (available to certain individuals when purchasing coverage through the federal Marketplace/state Exchanges).

Congress reduced the ACA’s individual shared responsible penalty to zero effective January 1, 2019. Nonetheless, since Congress did not change the reporting rules, reporting entities are still required to comply with the reporting laws.

Deadlines modified for participant statements

In an effort to reduce administrative burdens for reporting entities and the IRS, the final regulations permanently grant employers and plans an extra 30 days to furnish the Forms 1095-B and 1095-C to employees and participants. In effect, this means that the January 31 deadline has been permanently moved to March 2. If the extended furnishing date falls on a weekend or legal holiday, statements will be timely if furnished on the next business day.

This relief does not affect the requirement to file these forms and transmittal forms with the IRS by the required deadline. The deadline for filing these forms is February 28 (if filing on paper) or March 31 (if filing electronically, which is required when filing 250 or more forms of either type).

Alternative manner for furnishing Form 1095-B

Generally, a plan’s obligation to furnish a statement to an individual is discharged if the statement is mailed to the individual’s last known address or furnished electronically in accordance with electronic distribution requirements. However, the final regulation continues an existing policy that permits alternative distribution of the Form 1095-B.

The following criteria must be followed to take advantage of the alternative distribution method:

1. A notice must be posted prominently on the plan’s or employer’s website stating that individuals may receive a copy of their 1095-B upon request. This notice must provide an email address and physical address to which a request may be sent, as well as a telephone number to use for asking questions.
2. The plan or employer must provide the Form 1095-B to any responsible individual within 30 days of the date the request is received.

The alternative method only applies to the Form 1095-B, not to the requirement to provide full-time employees with Form 1095-C. Large employers must still distribute the Form 1095-C to full-time employees. However, if a large employer uses Form 1095-C to report coverage of an individual who is not a full-time employee (e.g., full-year retirees or part-time employees), the alternative method could apply.

Transitional good-faith relief eliminated

Under the transitional good-faith relief, for calendar years 2016 through 2020, the IRS did not impose penalties on employers or plans if they could show that they made good-faith efforts to comply with the information reporting requirements. These final regulations confirm that such good-faith relief will no longer be available for calendar years after 2020 because it was intended to be transitional. Reporting entities will now have to demonstrate reasonable cause for failing to timely or accurately complete reporting requirements.

Implications for employers and other plan sponsors

Employers and other plan sponsors should do the following:

• Those entities that administer the process themselves should assure that they are aware of the permanent change in deadline and assure that systems are in place to assure timely and complete filing of all forms.
• Contact any third-party vendor that handles distribution of these forms to clarify roles and responsibilities for the 2022 reporting year.
• Review contracts with third-party vendors in light of the potential for penalties for good-faith reporting errors.
• Plan sponsors that distribute a Form 1095-B should decide whether they wish to provide paper copies of the form or, instead, post a notice on the plan’s website stating that individuals may receive a copy upon request.

After the federal individual mandate penalty was reduced to zero, several states (e.g., California, New Jersey and Rhode Island) and the District of Columbia enacted their own individual mandate laws and requiring the sending and filing of the federal forms to meet state requirements. Reporting entities that are interested in taking advantage of the extended deadline (March 2, 2023) for providing Forms 1095-C and 1095-B should consider whether they must meet earlier delivery deadlines in order to comply with applicable requirements of jurisdictions.