Just three short days before the December 27th deadline for health plans and issuers to report prescription drug and health care spending information to the government, on December 23, 2022, the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) issued undoubtedly welcome reporting relief for health plans and issuers facing difficulty meeting the looming deadline.

By way of short background, the Consolidated Appropriations Act, 2021, requires that health plans and issuers report, on an annual basis, certain prescription drug and health care spending information. The first reporting (for 2020 and 2021) was originally due in December 2021, but was delayed to December 27, 2022.  The reporting, which is required to be done in precise coordination with the plan’s various service providers and uploaded via a specific format to a Centers for Medicare and Medicaid Services website, has proved challenging for many plan sponsors and issuers.

Accordingly, recognizing the significant operational issues facing plan sponsors and issuers in their efforts to comply with the new reporting requirements, the Departments announced two important pieces of relief on December 23rd: (1) The Departments will not take enforcement action against a plan or issuer that uses a good faith, reasonable interpretation of the regulations and the reporting instructions in making its submission for the 2020 and 2021 plan years, and (2) The Departments will permit a grace period until January 31, 2023, for the 2020 and 2021 submissions due on December 27th.

In the guidance, the Departments also addressed a few substantive aspects of the filing requirements, including the data aggregation rules and optional reporting on vaccines, and clarified the permissibility of multiple submissions (by one reporting entity on behalf of more than one plan or issuer) and multiple reporting entities (for the same plan or issuer). The Departments will allow certain limited information to be reported via email. The guidance (in the form of FAQs) can be found here.

Photo of Roberta Chevlowe Roberta Chevlowe

Roberta K. Chevlowe provides advice to employers and boards of trustees of multiemployer benefit plans on a broad range of issues relating to their retirement, health and other employee benefit plans. With three decades of experience practicing in this area, Roberta employs a…

Roberta K. Chevlowe provides advice to employers and boards of trustees of multiemployer benefit plans on a broad range of issues relating to their retirement, health and other employee benefit plans. With three decades of experience practicing in this area, Roberta employs a practical, business-minded approach to helping her clients comply with the various requirements imposed by ERISA, the Internal Revenue Code, COBRA, the Affordable Care Act and other federal and state laws affecting employee benefit programs. Roberta’s practice also includes advising clients in connection with benefit claim appeals, lawsuits and government audits; drafting plan documents, policies and employee communications materials; and negotiating with plan service providers.

Roberta is best known for her work in the area of COBRA compliance and for advising employers in connection with the benefits they provide to employees’ domestic partners and same-sex spouses. She is a co-author of The COBRA Handbook and lectures and publishes articles on a variety of employee benefits topics. In addition, Ms. Chevlowe is a leader of Proskauer’s Task Force on Reproductive Health Care Benefits.

Photo of Jennifer Rigterink Jennifer Rigterink

Jennifer Rigterink is senior counsel in the Labor Department and a member of the Employee Benefits & Executive Compensation Group.

Jennifer focuses on a diverse array of tax and ERISA issues impacting employee benefits.  Her wide-ranging practice encompasses qualified retirement plans and non-qualified…

Jennifer Rigterink is senior counsel in the Labor Department and a member of the Employee Benefits & Executive Compensation Group.

Jennifer focuses on a diverse array of tax and ERISA issues impacting employee benefits.  Her wide-ranging practice encompasses qualified retirement plans and non-qualified arrangements, health and welfare benefits, and fringe benefit programs.  She counsels single-employer and multiemployer clients on matters pertaining to plan administration, design and qualification, as well as regulatory, legislative and legal compliance.

In recent years, Jennifer has advised employers and plan sponsors with fiduciary and governance matters applicable to defined benefit plans and pension de-risking activities, including lump sum window programs, annuity purchases, and pension plan terminations.

Jennifer frequently counsels clients on health and welfare arrangements, with a particular focus on all matters relating to family building and reproductive health care benefits.  Her experience also includes working with employers and plan sponsors on mental health parity compliance issues.

Prior to joining Proskauer, Jennifer clerked for Judge Jacques L. Wiener, Jr., in the United States Court of Appeals for the Fifth Circuit and Judge Yvette Kane in the United States District Court for the Middle District of Pennsylvania.