Originally posted by Gillian Roberts on https://eba.benefitnews.com

Industry insiders are beginning to find holes in the Affordable Care Act employer mandate delay announced last week by the Obama administration and U.S. Department of Treasury. The biggest hole so far, say brokers and media alike, is self-reporting for subsidies.

Thom Mangan, CEO of United Benefit Advisers and EBA advisory board member, says he had one main question for the Treasury after the announcement: What about the people who were going to potentially be eligible for subsidies if their employer was not offering “affordable” coverage, as the ACA stipulates? That answer came Friday from the Obama Administration. “It’s crazy,” Mangan says. “It’s self-reporting … Employers don’t have a mandate to go and report if a person is eligible for subsidy. Some people will just apply and they may be at 400% of poverty level, they may be 50%, whatever they report is whatever goes through.”

The announcement, which Mangan says was expected from the Treasury, came in a 606-page document that not only answered his aforementioned question but made clear that all subsidy verification would rely on self-reporting until 2015. Mangan says he predicts there are going to be “plenty” of people who are not qualified for subsidies getting them anyway. “We’re in for an awful 2014, 2015 for the IRS trying to figure this out,” he says.

A Mercer statement Monday on the subsidy loophole nodded to even more potential confusion. “Public exchanges, which are slated to be operational in 2014, may still reach out to employers to verify applicant eligibility for health insurance,” the statement said.

“It will be state by state, and it’s just going to be part of your tax return,” Mangan says about the possibility of some states pursuing verification. “I just moved to Illinois and it was pretty simple in my W2 paperwork, there’s a box [asking if you have health insurance] that if you didn’t check it, you’re going to get flagged.” He caveated that Illinois is ahead of other states in preparing paperwork of this nature already. With some states verifying and others potentially not, the budget could get tricky.

Also contributing to new budgeting problems for the ACA is the missing funds from employer penalties in 2014. Despite the varying sources that say between 94% and 98% of employers already offer coverage, Mangan says there were definitely some businesses planning to pay the fine and not “play.” He explains: “There were still some employers in the high part-time or low-wage industries that never provided benefits. They have 300% annual turnover in the fast food industry … that was more of a logistical nightmare than providing health insurance.” In fact, the Congressional Budget Office had estimated that the penalties from employers would add up to approximately $10 billion in 2014.

“I’d say the CBO had it spot on in terms of what we won’t collect in the end,” Mangan says.

Meanwhile, business groups and insurance brokers and agents immediately celebrated the extra time allowed for employer shared responsibility reporting, un-burdening employers who do not currently offer coverage, or were considering making a change, from making a decision on whether they would pay or play until 2015.

Brian Kalish contributed to this report.