Justices Seem Unlikely to Strike Down Entire Affordable Care Act
The U.S. Supreme Court appears hesitant to invalidate the Affordable Care Act (ACA) in its entirety, based on questions the justices posed during oral argument Nov. 10.
The ACA requires that most Americans either maintain a minimum level of health care coverage or pay a specified amount to the Internal Revenue Service. In a 2012 opinion written by Chief Justice John Roberts Jr., the Supreme Court upheld this mandate as a legitimate exercise of Congress' taxing power. In 2017, and effective in 2019, Congress amended the ACA to set the penalty to zero, making the individual mandate provision unenforceable.
In two consolidated cases, California v. Texas and Texas v. United States, the Supreme Court has been asked to decide whether reducing the penalty to zero rendered the minimum-coverage provision unconstitutional—and, if so, whether the rest of the ACA can remain enforceable without it.
"The justices seem to be leaning toward, at a minimum, finding the individual mandate severable and preserving the remainder of the law," observed Benjamin Conley, an attorney with Seyfarth Shaw in Chicago. The most notable takeaway from the arguments, he said, was that Roberts and Justice Brett Kavanaugh "all but stated that they believe the individual mandate is severable."
Questions Before the Court
The court will first consider whether the plaintiffs have standing to challenge the ACA, then it will move to the merits of the case. Texas and other states that challenged the ACA argued that "Congress may not use its power to regulate interstate commerce to order Americans to buy health insurance" and that the only reason the individual mandate survived a legal challenge was because it was "fairly possible" to read the ACA's mandate as a tax trigger. "Because the mandate raises no revenue, it can no longer be read as a tax," they wrote in a brief to the Supreme Court.
The U.S. House of Representatives and a group of Democrat-led states are fighting to keep the ACA intact. If Texas successfully challenges the ACA, "more than 20 million Americans could lose their health care coverage, 130 million Americans with pre-existing conditions could lose protections, and drug costs could skyrocket for seniors," House Speaker Nancy Pelosi tweeted Nov. 10.
In December 2019, the 5th U.S. Circuit Court of Appeals sided with Texas, holding that the mandate is unconstitutional since there is no longer a penalty for people who fail to buy health insurance.
But the Supreme Court justices raised doubts about that argument. "I think it's hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," Roberts said during oral argument. "I think, frankly, that they wanted the court to do that. But that's not our job."
Justice Amy Coney Barrett, the court's newest justice and sixth conservative on the bench, has previously raised concerns with the Supreme Court's 2012 ruling. "Justice Barrett has criticized Justice Roberts' decision to uphold the ACA," said Sage Fattahian, an attorney with Morgan Lewis in Chicago. "The general view is that her vote may be the deciding vote in invalidating the ACA, but all of that remains to be seen."
Seyfarth Shaw's Conley noted that votes from Roberts and Kavanaugh, plus the three liberal justices—Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor—would be enough to preserve the remainder of the law.
"The most interesting questions and comments, for me, came from Justice Kavanaugh," Fattahian observed. At oral argument, Kavanaugh said he thinks there is "a very straightforward case for severability" under Supreme Court precedent.
"Chief Justice Roberts also asked questions that seemed to indicate that the proper remedy in this case would be to sever the individual mandate from the rest of the ACA," Fattahian said. "This would mean that the ACA's plan mandates and employer mandate, along with ACA reporting requirements, would all remain intact."
Employer Takeaway
So what will a ruling in the case mean for employers? "While a ruling striking down the entire law could definitely have an impact in the long term, we don't think any short-term action is required," Conley said.
Even if, for instance, the Supreme Court invalidates the provision of the law allowing dependents to remain on their family's plans until age 26, an employer could certainly continue to offer such coverage even if it is no longer required. "So any plan-driven changes resulting from the ruling would be more incremental and long term," Conley added.
A decision in the case is not expected until June 2021. "In the meantime, employers should note that the health care law remains fully in effect during the litigation, including all coverage obligations and reporting requirements," said Chatrane Birbal, vice president of public policy for the Society for Human Resource Management. If there are changes to the health care law, employers should be aware that the changes will not take effect immediately, she noted.
Fattahian said, "Employers should continue down the path of compliance. Should the ACA be held to be unconstitutional, it will remain to be seen how it will all unwind and what, if anything, will take its place."
How the Supreme Court Could Rule on the Affordable Care Act
On Nov. 10, the U.S. Supreme Court will hear arguments on whether the Affordable Care Act (ACA) is constitutional, in whole or in part. The court is expected to rule on the matter before its term ends in June 2021.
Only those justices sitting on the court when the case is heard will vote, and it is not yet known if a new Supreme Court justice will be confirmed when the case is argued. A vacancy on the nine-justice court was created by the death of Justice Ruth Bader Ginsburg on Sept. 18.
In the meantime, "the health care law remains fully in effect during the litigation, including all employer coverage obligations and reporting requirements," said Chatrane Birbal, vice president of public policy at the Society for Human Resource Management.
Complex Case History
The Supreme Court's options for deciding this case are shaped by the complicated history of litigation over the ACA.
The origins of the case go back to 2012, when the court upheld the constitutionality of the ACA's penalty on individuals who lack health coverage—the so-called individual coverage mandate—as a justifiable exercise of Congress' power to tax.
In December 2017, however, President Donald Trump signed into law a tax bill that eliminated the ACA's penalty on individuals who lack health coverage. Afterward, several Republican state attorneys general, led by the state of Texas, filed a lawsuit arguing that the health care statute itself, or at least the parts of the act closely linked to the individual mandate, were no longer valid. Democratic states and the House of Representatives, led by Democrats, stepped in to defend the statute.
In December 2018, a Texas district court struck down the ACA but stayed its ruling pending appeal, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it.
On appeal, in Texas v. United States, a split panel of the 5th U.S. Circuit Court of Appeals deemed that the individual mandate was unconstitutional, but the panel instructed the district court to rehear the matter and "to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the mandate."
However, on March 2, 2019, before the district court could carry out the appellate court's directive, the Supreme Court announced it would hear the case in its term beginning in the fall of 2020, blocking the lower courts from taking further action.
5th Circuit Ruling Was Narrowly Focused
When the 5th Circuit instructed the district court to rehear the matter and to focus on those ACA provisions that Congress intended to be "inseverable from the individual mandate," this suggested, legal analysts said, that the appellate court was unlikely to overturn the ACA in full.
"Only the individual mandate was declared unconstitutional, and the portion of the lower court's decision invalidating the rest of the Affordable Care Act [was] vacated," according to an analysis of the appellate ruling by Segal, an HR consultancy. As a result, "plan sponsors know that the entire Affordable Care Act will not be overturned."
Had the case proceeded at the appellate level, the 5th Circuit might have struck down those parts of the law directly related to the individual mandate. The appellate decision noted, for instance, that community rating, which prevents insurers from varying premiums within a geographic area based on age, gender, health status or other factors, might be among the provisions determined to be "inseverable" from the individual mandate, because the increase in revenue to insurers from the mandate was meant to offset the decrease from these restrictions.
The ACA's guaranteed-issue provisions, which ban insurers from rejecting coverage based on a person's pre-existing conditions, might also be inseverable, the appellate decision noted.
Supreme Court's Options
The Supreme Court has the following options when it decides the case, The Washington Post and other sources have reported:
- To dismiss the case on technical grounds, leaving the statute in place. The court could decide, for instance, that Texas and the individual plaintiffs lacked standing to bring the lawsuit.
- To affirmatively uphold the ACA.
- To uphold the statute while finding the individual mandate to be void without its penalty, essentially maintaining the status quo.
- To uphold the statute but void both the individual mandate and other provisions closely linked to the mandate.
- To strike down the law in full, although that option has been viewed as unlikely by legal analysts. Should it happen, however, the effect of the ruling would likely be delayed, giving Congress the opportunity to correct the statute's constitutional defects or to pass a replacement health care law.
According to an analysis by the nonprofit Kaiser Family Foundation, "If the Supreme Court adopts the position that the federal government took during the trial court proceedings and invalidates the individual mandate as well as the protections for people with pre-existing conditions, then federal funding for premium subsidies and the Medicaid expansion would stand, and it would be up to states whether to reinstate the insurance protections."
If that were to happen, Congress also could reinstate protections for people with pre-existing conditions.
Joe Biden, the Democratic presidential nominee, has voiced his support for the ACA, sometimes referred to as Obamacare, pointing out how it safeguards people who might not otherwise qualify for coverage. His campaign website says, "Because of Obamacare, over 100 million people no longer have to worry that an insurance company will deny coverage or charge higher premiums just because they have a pre-existing condition—whether cancer or diabetes or heart disease or a mental health challenge."
President Trump has also pledged to maintain these protections even as his administration supports the lawsuit that seeks to overturn the act. During his acceptance speech for the Republican presidential nomination, Trump said, "We will always, and very strongly, protect patients with pre-existing conditions, and that is a pledge from the entire Republican Party."
In Case of a Tie Vote
"If the case is heard by the current eight justices and results in a 4-4 vote, the justices could reschedule oral argument or delay consideration until [Texas vs. United States] can be reheard by a full Court," wrote Katie Keith, a former research professor at Georgetown University's Center on Health Insurance Reforms and a contributor to the Health Affairs blog. "This might mean Texas would be reheard later in the spring depending on the timing of confirmation."
Alternatively, "the Court could issue a 4-4 ruling, which would maintain the status quo and leaves the appellate decision intact. In this instance, the 5th Circuit's ruling would stand and the case would be remanded back to the district court," she noted.
If that is the outcome, "the ACA would remain in effect while the district court undertook a provision-by-provision severability analysis," Keith noted. "The litigation would continue for years as we await a new district court decision, another appeal to the 5th Circuit, and most likely a return to the Supreme Court."
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Thinking Ahead "Employers will be wise to give some thought to how they might react to different outcomes, Mercer, an HR consultancy, advised. "For example, if some common provisions eliminated by the ACA like annual/lifetime dollar limits on essential health benefits, ending dependent coverage at age 19/23, or the previously mentioned pre-existing condition exclusions were permitted again, would an employer reshape their plan design to curb costs? If the employer 'play-or-pay' mandate (the 30-hour rule) were struck down, would an employer move full-time eligibility back to 40 hours?" Concluded Mercer's consultants, "There is much to consider with these possible ACA changes," should they come to pass. |
SOURCE: Miller, S. (23 September 2020) "How the Supreme Court Could Rule on the Affordable Care Act" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/how-the-supreme-court-could-rule-on-the-affordable-care-act.aspx
Supreme Court to Rule Next Year on the ACA's Validity
With the Affordable Care Act (ACA) being questioned on whether it is in-whole or in-part constitutional, the U.S. Supreme Court has decided to rule on this matter again. The ruling regarding the validity of the ACA is expected by June of 2021. Continue reading this blog post to learn more.
The U.S. Supreme Court will again rule on whether the Affordable Care Act (ACA) is constitutional, in whole or in part, during its term beginning this October, the court announced on March 2. A ruling is expected before the term ends in June next year.
In 2019, Congress eliminated the ACA's penalty on individuals who lack health coverage—the so-called individual mandate. In the aftermath, several Republican state attorneys general filed a lawsuit claiming the ACA itself was no longer constitutional, while Democratic states and the House of Representatives, controlled by Democrats, stepped in to defend the statute.
Back in 2012, the U.S. Supreme Court upheld the constitutionality of the ACA's individual mandate as a justifiable exercise of Congress's power to tax. But without an existing tax penalty, ACA critics charge that the health care statute itself, or at least the parts of the act closely linked to the individual mandate, are no longer constitutionally valid.
In December 2018, a Texas district court struck down the ACA but stayed its ruling pending appeal, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it. On appeal, in Texas v. United States, a split panel of the 5th Circuit instructed the district court to rehear the matter and "to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate."
Now that the Supreme Court has agreed to hear the case, it will not go back to the district court judge for that analysis, leaving the high court free to uphold the entire ACA, uphold the statute but void provisions linked to the individual mandate, or strike down the law in full, although that draconian option is viewed as exceedingly unlikely by legal analysts. The same five justices that upheld the ACA in 2012 remain on the court.
The health law remains fully in effect during the litigation, including all employer coverage obligations and reporting requirements.
The Supreme Court's Packed Schedule
The Supreme Court has placed five cases—including Texas v. United States—on the 2020 docket. This suggests that the hearing could be held in early or mid-October 2020, right before the 2020 election, although we may not know the oral argument schedule until later this spring or summer. In any event, a decision in Texas v. United States would not be expected until 2021 (and presumably not until June 2021).
It is worth noting that the Court will hear a separate ACA-related challenge on the final day of oral argument during its current term. On April 29, 2020, the Court will hear one hour of oral argument in the consolidated cases of Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania. These cases focus on the validity of two Trump-era rules that created broad exemptions to the ACA's contraceptive mandate for religious or moral reasons. And we are still waiting on a decision from the Court over whether insurers are owed more than $12 billion in unpaid risk corridor payments; oral argument was held in that challenge in December 2019 and a decision could be issued at any time.
(Health Affairs)
Lawsuit Stoked Confusion
America's Health Insurance Plans (AHIP), the insurance industry's leading lobbying group, applauded the justices' decision to hear the lawsuit. "We are confident that the Supreme Court will agree that the district court's original decision to invalidate the entire ACA was misguided and wrong," said AHIP President Matt Eyles in a statement.
Association for Community Affiliated Plans (ACAP), a group that represents more than 70 safety-net plans, noted that the lawsuit "has cast a pall of uncertainty over the future of the individual insurance market," according to ACAP CEO Margaret A. Murray.
(Fierce Healthcare)
5th Circuit Highlighted Suspect ACA Provisions
When the 5th Circuit instructed the district court to rehear the matter and to focus on those ACA provisions that Congress intended to be "inseverable from the individual mandate," this suggested, legal analysts said, that the appellate court was unlikely to overturn the ACA in full. However, the appellate court might have struck down those parts of the law directly related to the individual mandate, such as the 5:1 ratio age band, under which insurers can't charge seniors premiums more than five times what younger patients pay, and community rating, which prevents insurers from varying premiums within a geographic area based on age, gender, health status or other factors.
The increase in revenue to insurers from the individual mandate was meant to offset the decrease from these restrictions. It's unclear whether the U.S. Supreme Court will take a similar approach when it hears the case.
(SHRM Online)
SOURCE: Miller, S. (03 March 2020) "Supreme Court to Rule Next Year on the ACA's Validity" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/supreme-court-to-rule-next-year-on-CAs-validity.aspx
Cadillac Tax May Finally Be Running Out of Gas
The Cadillac tax - a 40 percent tax on the most generous employer-provided health insurance plans - may be about to change. The Cadillac tax was supposed to take effect in 2018 but has been delayed twice and recently, the House voted to repeal this tax entirely. Read this blog post to learn more about this potential change.
The politics of healthcare are changing. And one of the most controversial parts of the Affordable Care Act — the so-called Cadillac tax — may be about to change with it.
The Cadillac tax is a 40% tax on the most generous employer-provided health insurance plans — those that cost more than $11,200 for an individual policy or $30,150 for family coverage. It was supposed to take effect in 2018, but Congress has delayed it twice. And the House recently voted overwhelmingly — 419-6 — to repeal it entirely. A Senate companion bill has 61 co-sponsors — more than enough to ensure passage.
The tax was always an unpopular and controversial part of the 2010 health law because the expectation was that employers would cut benefits to avoid paying the tax. But ACA backers said it was necessary to help pay for the law’s nearly $1 trillion cost and help stem the use of what was seen as potentially unnecessary care. In the ensuing years, however, public opinion has shifted decisively, as premiums and out-of-pocket costs have soared. Now the biggest health issue is not how much the nation is spending on healthcare, but how much individuals are.
“Voters deeply care about healthcare still,” said Heather Meade, a spokeswoman for the Alliance to Fight the 40, a coalition of business, labor and patient advocacy groups urging repeal of the Cadillac tax. “But it is about their own personal cost and their ability to afford healthcare.”
Stan Dorn, a senior fellow at Families USA, recently wrote in the journal Health Affairs that the backers of the ACA thought the tax was necessary to sell the law to people concerned about its price tag and to cut back on overly generous benefits that could drive up health costs. But transitions in healthcare, such as the increasing use of high-deductible plans, make that argument less compelling, he said.
“Nowadays, few observers would argue that [employer-sponsored insurance] gives most workers and their families’ excessive coverage,” he wrote.
The possibility of the tax has been “casting a statutory shadow over 180 million Americans’ health plans, which we know, from HR administrators and employee reps in real life, has added pressure to shift coverage into higher-deductible plans, which falls on the backs of working Americans,” said Rep. Joe Courtney (D-Conn.).
Support or opposition to the Cadillac tax has never broken down cleanly along party lines. For example, economists from across the ideological spectrum supported its inclusion in the ACA, and many continue to endorse it.
“If people have insurance that pays for too much, they don’t have enough skin in the game. They may be too quick to seek professional medical care. They may too easily accede when physicians recommend superfluous tests and treatments,” wrote N. Gregory Mankiw, an economics adviser in the George W. Bush administration, and Lawrence Summers, an economic aide to President Barack Obama, in a 2015 column. “Such behavior can drive national health spending beyond what is necessary and desirable.”
At the same time, however, the tax has been bitterly opposed by organized labor, a key constituency for Democrats. “Many unions have been unable to bargain for higher wages, but they have been taking more generous health benefits instead for years,” said Robert Blendon, a professor at the Harvard T.H. Chan School of Public Health who studies health and public opinion.
Now, unions say, those benefits are disappearing, with premiums, deductibles and other cost sharing rising as employers scramble to stay under the threshold for the impending tax. “Employers are using the tax as justification to shift more costs to employees, raising costs for workers and their families,” said a letter to members of Congress from the Service Employees International Union.
Deductibles have been rising for a number of reasons, the possibility of the tax among them. According to a 2018 survey by the federal government’s National Center for Health Statistics, nearly half of Americans under age 65 (47%) had high-deductible health plans. Those are plans that have deductibles of at least $1,350 for individual coverage or $2,700 for family coverage.
It’s not yet clear if the Senate will take up the House-passed bill, or one like it.
The senators leading the charge in that chamber — Mike Rounds (R-S.D.) and Martin Heinrich (D-N.M.) — have already written to Senate Majority Leader Mitch McConnell to urge him to bring the bill to the floor following the House’s overwhelming vote.
“At a time when healthcare expenses continue to go up, and Congress remains divided on many issues, the repeal of the Cadillac tax is something that has true bipartisan support,” the letter said.
Still, there is opposition. A letter to the Senate on July 29 from economists and other health experts argued that the tax “will help curtail the growth of private health insurance premiums by encouraging employers to limit the costs of plans to the tax-free amount.” The letter also pointed out that repealing the tax “would add directly to the federal budget deficit, an estimated $197 billion over the next decade, according to the Joint Committee on Taxation.”
Still, if McConnell does bring the bill up, there is little doubt it would pass, despite support for the tax from economists and budget watchdogs.
“When employers and employees agree in lockstep that they hate it, there are not enough economists out there to outvote them,” said former Senate GOP aide Rodney Whitlock, now a healthcare consultant.
Harvard professor Blendon agrees. “Voters are saying, ‘We want you to lower our health costs,’” he said. The Cadillac tax, at least for those affected by it, would do the opposite.
SOURCE: Rovner, J. ( 19 August, 2019) "Cadillac tax may finally be running out of gas" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/articles/obamacare-excise-tax-may-be-at-an-end
Federal Appeals Court Takes Up Case That Could Upend U.S. Health System
A federal appeals court in New Orleans has taken up a case against the Affordable Care Act. If the lower court's ruling in the case, Texas v. United States, is upheld, it has the potential to shake the nation's health care system. Read this article to learn more about this case.
The fate of the Affordable Care Act is again on the line Tuesday, as a federal appeals court in New Orleans takes up a case in which a lower court judge has already ruled the massive health law unconstitutional.
If the lower court ruling is ultimately upheld, the case, Texas v. United States, has the potential to shake the nation’s entire health care system to its core. Not only would such a decision immediately affect the estimated 20 million people who get their health coverage through programs created under the law, ending the ACA would also create chaos in other parts of the health care system that were directly or indirectly changed under the law’s multitude of provisions, such as calorie counts on menus, a pathway for approval of generic copies of expensive biologic drugs and, perhaps most important politically, protections for people with preexisting conditions.
“Billions of dollars of private and public investment — impacting every corner of the American health system — have been made based on the existence of the ACA,” said a friend-of-the-court brief filed by a bipartisan group of economists and other health policy experts to the 5th Circuit Court of Appeals. Upholding the lower court’s ruling, the scholars added, “would upend all of those settled expectations and throw healthcare markets, and 1/5 of the economy, into chaos.”
Here are five important things to know about the case:
It was prompted by the tax bill Republicans passed in 2017.
The big tax cut bill passed by the GOP Congress in December 2017 eliminated the penalty included in the ACA for failure to maintain health insurance coverage. The lawsuit was filed in February 2018 by a group of Republican attorneys general and two governors. They argued that since the Supreme Court had upheld the ACA in 2012 specifically because it was a valid exercise of Congress’ taxing power, taking the tax away makes the entire rest of the law unconstitutional.
Last December, Judge Reed C. O’Connor agreed with the Republicans. “In some ways the question before the court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote in his decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”
State and federal Democrats are defending the law.
Arguing that the rest of the law remains valid is a group of Democratic attorneys general, led by California’s Xavier Becerra.
“Our argument is simple,” said Becerra in a statement last Friday. “The health and wellbeing of nearly every American is at risk. Healthcare can mean the difference between life and death, financial stability and bankruptcy. Our families’ wellbeing should not be treated as a political football.”
The Democratic-led House of Representatives has also been granted “intervenor” status in the case.
The Trump administration has taken several positions on the lawsuit.
The defendant in the case is technically the Trump administration. Traditionally, an administration, even one that did not work to pass the law in question, defends existing law in court.
Not this time. And it is still unclear exactly what the administration’s position is on the lawsuit. “They have changed their position several times,” Sen. Chris Murphy (D-Conn.) told reporters on a conference call Monday.
When the administration first weighed in on the case, in June 2018, it said it believed that without the tax penalty only the provisions most closely connected to that penalty — including requiring insurers to sell policies to people with preexisting conditions — should be struck down. The rest of the law should stay, the Justice Department argued.
After O’Connor’s ruling, however, the administration changed its mind. In March, a spokeswoman for the Justice Department said it had “determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”
Now it appears the administration is shifting its opinion again. In a filing with the court late last week, Justice Department attorneys argued that perhaps the health law should be invalidated only in the GOP states that are suing, rather than all states. It is unclear how that would work.
Legal scholars — including those who oppose the ACA — consider the case dubious.
In a brief filed with the appeals court, legal scholars from both sides of the fight over the ACA agreed that the lawsuit’s underlying claim makes no sense.
In passing the tax bill that eliminated the ACA’s tax penalty but nothing else, Congress “made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable insurance mandate,” wrote law professors Jonathan Adler, Nicholas Bagley, Abbe Gluck and Ilya Somin. Bagley and Gluck are supporters of the ACA; Adler and Somin have argued against it in earlier suits. “Congress itself — not a court — eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear.”
It could end up in front of the Supreme Court right in the middle of the 2020 election.
Depending on what happens at the appeals court level, the health law could be back in front of the Supreme Court — which has upheld the health law on other grounds in 2012 and 2015 — and land there in the middle of next year’s presidential campaign.
Democrats are already sharpening their rhetoric for that possibility.
“President Trump and Republicans are playing a very dangerous game with people’s lives,” Senate Minority Leader Chuck Schumer told reporters on a conference call Monday.
Murphy said he is most concerned that if the lower court ruling is upheld and the health law struck down, Republicans “won’t be able to come up with a plan” to put the health care system back together.
“Republicans tried to come up with a replacement plan for 10 years, and they couldn’t do it,” he said.
SOURCE: Rovner, J. (9 July 2019) "Federal Appeals Court Takes Up Case That Could Upend U.S. Health System" (Web Blog Post). Retrieved from https://khn.org/news/federal-appeals-court-takes-up-case-that-could-upend-u-s-health-system/
U.S. Department of Labor's New Compliance Assistance Tool
On February 6, 2019, the U.S. Department of Labor announced the launch of the electronic version of their Compliance Assistance Tool (Handy Reference Guide to the Fair Labor Standards Act (FLSA)). This new version will assist employers by providing them with basic Wage and Hour Division (WHD) information, as well as links to other resources.
This electronic resource was created as a part of the WHD's efforts to modernize compliance assistance tools, as well as provide easy-to-use, accessible compliance information. In coexistence with worker.gov, employer.gov, and other online tools, this tool will help improve employer understanding of federal labor laws and regulations.
View the digital Compliance Assistance Tool here.
Read the DOL's full press release here.
SOURCE: U.S. Department of Labor (6 February 2019) "U.S. Department of Labor Announces New Compliance Assistance Tool" (Web Press Release). Retrieved from https://www.dol.gov/newsroom/releases/whd/whd20190206-0
Developing guidance could free employers from ACA mandate
A future path for employers to avoid ACA employer mandate penalties was outlined in a recent IRS notice. Read this blog post from Employee Benefits News to learn more.
A recent IRS notice provides a future path for employers to avoid ACA employer mandate penalties by reimbursing employees for a portion of the cost of individual insurance coverage through an employer-sponsored health reimbursement arrangement.
While the notice is not binding and at this stage is essentially a discussion of relevant issues, it does represent a significant departure from the IRS’s current position that an employer can only avoid ACA employer mandate penalties by offering a major medical plan.
Here is everything employers need to know.
Background: As described in more detail in a previous update, the ACA currently prohibits (except in limited circumstances) an employer from maintaining an HRA that reimburses the cost of premiums for individual health insurance policies purchased by employees in the individual market.
Proposed regulations issued by the IRS and other governmental agencies would eliminate this prohibition, allowing an HRA to reimburse the cost of premiums for individual health insurance policies (individual coverage HRA) provided that the employer satisfies certain conditions.
The preamble of the proposed regulations noted that the IRS would issue future guidance describing special rules that would permit employers who sponsor individual coverage HRAs to be in full compliance with the ACA’s employer mandate. As follow up, the IRS recently issued Notice 2018-88, which is intended to begin the process of developing guidance on this issue.
On a high level, the ACA’s employer mandate imposes two requirements in order to avoid potential tax penalties: offer health coverage to at least 95% of full-time employees (and dependents); and offer “affordable” health coverage that provides “minimum value” to each full-time employee (the terms are defined by the ACA and are discussed further in these previous updates).
Offering health coverage to at least 95% of full-time employees: Both the proposed regulations and notice provide that an individual coverage HRA plan constitutes an employer-sponsored health plan for employer mandate purposes. As a result, the proposed regulations and notice provide that an employer can satisfy the 95% offer-of-coverage test by making its full-time employees (and dependents) eligible for the individual coverage HRA plan.
Affordability: The notice indicates that an employer can satisfy the affordability requirement if the employer contributes a sufficient amount of funds into each full-time employee’s individual coverage HRA account. Generally, the employer would have to contribute an amount into each individual coverage HRA account such that any remaining premium costs (for self-only coverage) that would have to be paid by the employee (after exhausting HRA funds) would not exceed 9.86% (for 2019, as adjusted) of the employee’s household income.
Because employers are not likely to know the household income of their employees, the notice describes that employers would be able to apply the already-available affordability safe harbors to determine affordability as it relates to individual coverage HRAs. The notice also describes new safe harbors for employers that are specific to individual coverage HRAs, intending to further reduce administrative burdens.
Minimum value requirement: The notice explains that an individual coverage HRA that is affordable will be treated as providing minimum value for employer mandate purposes.
Next steps: Nothing is finalized yet. Employers are not permitted to rely on the proposed regulations or the notice at this time. The proposed regulations are aimed to take effect on Jan. 1, 2020, if finalized in a timely matter. The final regulations will likely incorporate the special rules contemplated by the notice (perhaps with even more detail). Stay tuned.
This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
SOURCE: Simons, J.; Welle, N. (17 January 2019) "Developing guidance could free employers from ACA mandate" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/developing-guidance-could-free-employers-from-aca-mandate?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001
Compliance: Yearly Deadlines for Health Plans
Do you offer group health plans coverage to your employees? Employers that provide coverage are subject to multiple compliance requirements throughout the year. Certain requirements have been around for many years, while others have been recently added by the Affordable Care Act (ACA).
Continue reading for a summary of the many compliance requirements and their associated deadlines that health plan providers should be aware of throughout the year. Certain deadlines for non-calendar year plans may vary from what is outlined in this summary. This summary only covers recurring calendar year compliance deadlines. Other requirements that are not based on the calendar year are not included below.
January
| Deadline | Requirement | Description |
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January 31 |
Form W-2 | Deadline for providing Forms W-2 to employees. The ACA requires employers to report the aggregate cost of employer-sponsored group health plan coverage on their employees’ Forms W-2. The purpose is to provide employees with information on how much their health coverage costs. Certain types of coverage are not required to be reported on Form W-2.
This Form W-2 reporting requirement is currently optional for small employers (those who file fewer than 250 Forms W-2). Employers that file 250 or more Forms W-2 are required to comply with the ACA’s reporting requirement. |
| January 31 | Form 1095-C or Form 1095-B—Annual Statement to Individuals | Applicable large employers (ALEs) subject to the ACA’s employer shared responsibility rules must furnish Form 1095-C (Section 6056 statements) annually to their full-time employees. Employers with self-insured health plans that are not ALEs must furnish Form 1095-B (Section 6055 statements) annually to covered employees.
The Forms 1095-B and 1095-C are due on or before Jan. 31 of the year immediately following the calendar year to which the statements relate. Extensions may be available in certain limited circumstances. However, an alternate deadline generally is not available for ALEs that sponsor non-calendar year plans.
Update: The IRS extended the deadline for furnishing the 2018 employee statements, from Jan. 31, 2019, to March 4, 2019. |
February
| Deadline | Requirement | Description |
|
February 28 (March 31, if filing electronically) |
Section 6055 and 6056 Reporting | Under Section 6056, ALEs subject to the ACA’s employer shared responsibility rules are required to report information to the IRS about the health coverage they offer (or do not offer) to their full-time employees. ALEs must file Form 1094-C and Form 1095-C with the IRS annually.
Under Section 6055, self-insured plan sponsors are required to report information about the health coverage they provided during the year. Self-insured plan sponsors must generally file Form 1094-B and Form 1095-B with the IRS annually. ALEs that sponsor self-insured plans are required to report information to the IRS under Section 6055 about health coverage provided, as well as information under Section 6056 about offers of health coverage. ALEs that sponsor self-insured plans will generally use a combined reporting method on Form 1094-C and Form 1095-C to report information under both Sections 6055 and 6056. All forms must be filed with the IRS annually, no later than Feb. 28 (March 31, if filed electronically) of the year following the calendar year to which the return relates. Reporting entities that are filing 250 or more returns must file electronically. There is no alternate filing date for employers with non-calendar year plans. |
March
| Deadline | Requirement | Description |
|
March 1 (calendar year plans) |
Medicare Part D Disclosure to CMS | Group health plan sponsors that provide prescription drug coverage to Medicare Part D eligible individuals must disclose to the Centers for Medicare & Medicaid Services (CMS) whether prescription drug coverage is creditable or not. In general, a plan’s prescription drug coverage is considered creditable if its actuarial value equals or exceeds the actuarial value of the Medicare Part D prescription drug coverage. Disclosure is due:
Plan sponsors must use the online disclosure form on the CMS Creditable Coverage webpage. |
July
| Deadline | Requirement | Description |
|
July 31 |
PCORI Fee | Deadline for filing IRS Form 720 and paying Patient-Centered Outcomes Research Institute (PCORI) fees for the previous year. For insured health plans, the issuer of the health insurance policy is responsible for the PCORI fee payment. For self-insured plans, the PCORI fee is paid by the plan sponsor.
The PCORI fees are temporary—the fees do not apply to plan years ending on or after Oct. 1, 2019. This means that, for calendar year plans, the PCORI fees do not apply for the 2019 plan year. |
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July 31 |
Form 5500 | Plan administrators of ERISA employee benefit plans must file Form 5500 by the last day of the seventh month following the end of the plan year, unless an extension has been granted. Form 5500 reports information on a plan’s financial condition, investments and operations. Form 5558 is used to apply for an extension of two and one-half months to file Form 5500.
Small health plans (fewer than 100 participants) that are fully insured, unfunded or a combination of insured/unfunded, are generally exempt from the Form 5500 filing requirement. The Department of Labor’s (DOL) website and the latest Form 5500 instructions provide information on who is required to file and detailed information on filing. |
September
| Deadline | Requirement | Description |
|
September 30 |
Medical Loss Ratio (MLR) Rebates | The deadline for issuers to pay medical loss ratio (MLR) rebates for the 2014 reporting year and beyond is Sept. 30. The ACA requires health insurance issuers to spend at least 80 to 85 percent of their premiums on health care claims and health care quality improvement activities. Issuers that do not meet the applicable MLR percentage must pay rebates to consumers.
Also, if the rebate is a “plan asset” under ERISA, the rebate should, as a general rule, be used within three months of when it is received by the plan sponsor. Thus, employers who decide to distribute the rebate to participants should make the distributions within this three-month time limit. |
|
September 30 |
Summary Annual Report | Plan administrators must automatically provide participants with the summary annual report (SAR) within nine months after the end of the plan year, or two months after the due date for filing Form 5500 (with approved extension).
Plans that are exempt from the annual 5500 filing requirement are not required to provide an SAR. Large, completely unfunded health plans are also generally exempt from the SAR requirement. |
October
| Deadline | Requirement | Description |
|
October 15 |
Medicare Part D – Creditable Coverage Notices | Group health plan sponsors that provide prescription drug coverage to Medicare Part D eligible individuals must disclose whether the prescription drug coverage is creditable or not. Medicare Part D creditable coverage disclosure notices must be provided to participants before the start of the annual coordinated election period, which runs from Oct. 15-Dec. 7 of each year. Coverage is creditable if the actuarial value of the coverage equals or exceeds the actuarial value of coverage under Medicare Part D. This disclosure notice helps participants make informed and timely enrollment decisions.
Disclosure notices must be provided to all Part D eligible individuals who are covered under, or apply for, the plan’s prescription drug coverage, regardless of whether the prescription drug coverage is primary or secondary to Medicare Part D. Model disclosure notices are available on CMS’ website. |
Annual Notices
| Type of Notice | Description |
| WHCRA Notice | The Women’s Health and Cancer Rights Act (WHCRA) requires group health plans that provide medical and surgical benefits for mastectomies to also provide benefits for reconstructive surgery. Group health plans must provide a notice about the WHCRA’s coverage requirements at the time of enrollment and on an annual basis after enrollment. The initial enrollment notice requirement can be satisfied by including the information on WHCRA’s coverage requirements in the plan’s summary plan description (SPD). The annual WHCRA notice can be provided at any time during the year. Employers with open enrollment periods often include the annual notice with their open enrollment materials. Employers that redistribute their SPDs each year can satisfy the annual notice requirement by including the WHCRA notice in their SPDs.
Model language is available in the DOL’s compliance assistance guide. |
| CHIP Notice | If an employer’s group health plan covers residents in a state that provides a premium subsidy under a Medicaid plan or CHIP, the employer must send an annual notice about the available assistance to all employees residing in that state. the annual CHIP notice can be provided at any time during the year. Employers with annual enrollment periods often provide CHIP notice with their open enrollment materials.
The DOL has a model notice that employers may use. |
| Group health plans and health insurance issuers are required to provide an SBC to applicants and enrollees each year at open enrollment or renewal time. The purpose of the SBC is to allow individuals to easily compare their options when they are shopping for or enrolling in health plan coverage. Federal agencies have provided a template for the SBC, which health plans and issuers are required to use.
The issuer for fully insured plans usually prepares the SBC. If the issuer prepares the SBC, an employer is not also required to prepare an SBC for the health plan, although the employer may need to distribute the SBC prepared by the issuer. The SBC must be included in open enrollment materials. If renewal is automatic, the SBC must be provided no later than 30 days prior to the first day of the new plan year. However, for insured plans, if the new policy has not yet been issued 30 days prior to the beginning of the plan year, the SBC must be provided as soon as practicable, but no later than seven business days after the issuance of the policy. |
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| Grandfathered Plan Notice | To maintain a plan’s grandfathered status, the plan sponsor or must include a statement of the plan’s grandfathered status in plan materials provided to participants describing the plan’s benefits (such as the summary plan description, insurance certificate and open enrollment materials). The DOL has provided a model notice for grandfathered plans. This notice only applies to plans that have grandfathered status under the ACA. |
| Notice of Patient Protections | If a non-grandfathered plan requires participants to designate a participating primary care provider, the plan or issuer must provide a notice of patient protections whenever the SPD or similar description of benefits is provided to a participant. This notice is often included in the SPD or insurance certificate provided by the issuer (or otherwise provided with enrollment materials).
The DOL provided a model notice of patient protections for plans and issuers to use. |
| HIPAA Privacy Notice | The HIPAA Privacy Rule requires self-insured health plans to maintain and provide their own privacy notices. Special rules, however, apply for fully insured plans. Under these rules, the health insurance issuer, and not the health plan itself, is primarily responsible for the privacy notice.
Self-insured health plans are required to send the privacy notice at certain times, including to new enrollees at the time of enrollment. Thus, the privacy notice should be provided with the plan’s open enrollment materials. Also, at least once every three years, health plans must either redistribute the privacy notice or notify participants that the privacy notice is available and explain how to obtain a copy. The Department of Health and Human Services (HHS) has model Privacy Notices for health plans to choose from. |
| HIPAA Special Enrollment Notice | At or prior to the time of enrollment, a group health plan must provide each eligible employee with a notice of his or her special enrollment rights under HIPAA. This notice should be included with the plan’s enrollment materials. It is often included in the health plan’s SPD or insurance booklet. Model language is available in the DOL’s compliance assistance guide. |
| Wellness Notice HIPAA | Employers with health-contingent wellness programs must provide a notice that informs employees that there is an alternative way to qualify for the program’s reward. This notice must be included in all plan materials that describe the terms of the wellness program. If wellness program materials are being distributed at open enrollment (or renewal time), this notice should be included with those materials. Sample language is available in the DOL’s compliance assistance guide. |
| Wellness Notice ADA | To comply with the Americans with Disabilities Act (ADA), wellness plans that collect health information or involve medical exams must provide a notice to employees that explains how the information will be used, collected and kept confidential. Employees must receive this notice before providing any health information and with enough time to decide whether to participate in the program. Employers that are implementing a wellness program for the upcoming plan year should include this notice in their open enrollment materials. The Equal Employment Opportunity Commission has provided a sample notice for employers to use. |
Resources: https://www.ada.gov/; https://www.dol.gov/; https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/model-notices-privacy-practices/index.html; https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/Model-Notice-Letters.html; https://www.irs.gov/retirement-plans/retirement-plan-participant-notices-when-the-end-of-the-plan-year-has-passed; https://www.cms.gov/cciio/programs-and-initiatives/health-insurance-market-reforms/medical-loss-ratio.html; https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/compliance-assistance-guide.pdf; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/preexisting-condition-exclusions; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/summary-of-benefits; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/chipra/working-group; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/whcra; https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/forms; https://www.irs.gov/newsroom/patient-centered-outcomes-research-institute-fee; https://www.irs.gov/affordable-care-act/individuals-and-families/form-1095-b-what-you-need-to-do-with-this-form; https://www.irs.gov/affordable-care-act/individuals-and-families/form-1095-c-what-you-need-to-do-with-this-form; https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/index.html?redirect=/CreditableCoverage/; https://www.irs.gov/affordable-care-act/questions-and-answers-on-information-reporting-by-health-coverage-providers-section-6055; https://www.irs.gov/affordable-care-act/employers/questions-and-answers-on-reporting-of-offers-of-health-insurance-coverage-by-employers-section-6056; https://www.irs.gov/forms-pubs/about-form-w-2;
The approaching ACA premium tax moratorium – take 2
In 2010, Congress scheduled the 2014 Affordable Care Act premium tax. Then in 2015 Congress introduced a one-year moratorium on the premium tax that would take place in 2017. This past January, Congress placed another moratorium for the ACA premium tax in 2019. Continue reading to learn more.
In 2010, Congress scheduled the 2014 introduction of the Affordable Care Act premium tax (aka the health insurer fee). Then, via the PACE Act of October 2015, Congress placed a one-year moratorium on this 4% or so premium tax for calendar year 2017. You might recall our ensuing discussion a couple of years ago about how employers sponsoring fully insured medical, dental and/or vision plans could leverage this 2017 moratorium to their advantage.
See also: ACA: 4 things employers should focus on this fall
Meanwhile, did you notice back in January that Congress placed another moratorium on this tax, this time for 2019? To review:
- 2014-2016 – Tax applies
- 2017 – Under moratorium
- 2018 – Tax applies
- 2019 – Under moratorium
- 2020 – Tax scheduled to return
Fortunately, in moratorium years, fully insured medical, dental and vision premiums should be about 4% lower than they would have been otherwise, with these savings passed along proportionately by most employers to their plan participants.
Unfortunately, the budgetary challenge of this on-again-off-again Congressional approach is that when the tax returns, fully insured renewals naturally go up about 4% more than they would have otherwise. For example, an 8% premium increase becomes 12%.
See also: Proposals for Insurance Options That Don’t Comply with ACA Rules: Trade-offs In Cost and Regulation
Another complication occurs as employers annually compare the expected and maximum costs of self-funding their plans versus fully insuring the plans. Because this tax generally does not apply to self-funded plans, in “tax applies” years, any expected savings from self-funding will show about 4% higher than in moratorium years. This math especially complicates the financial comparison of level funding contracts to fully insured contracts (almost all level funding products are self-funded contracts).
With the Jan. 1 fully insured medical, dental and vision renewals beginning to cross our desks, what should employers do?
First, they should review the renewal’s rating methodology page and ensure that this tax was not included in the proposed 2019 premiums. If the rating methodology page was not provided, request it. If this request fails, ask for written confirmation that this tax is not included in your plan’s 2019 premiums.
Second, when comparing 2019 expected and maximum mature self-funded plan costs to 2019 fully insured premiums, extend the analysis to 2020 and project what will happen when this 4% fully insured tax tide returns.
See also: Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA
Finally, complicating matters, several states, including Maryland, introduced new or higher state premium taxes for 2019. Ask your benefits consultant if these actions will impact your plans. For Maryland employers sponsoring fully insured plans, for example, the new additional one-year premium tax will essentially cancel out the 2019 ACA premium tax moratorium.
SOURCE: Pace, Z (27 September 2018) "The approaching ACA premium tax moratorium – take 2" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/the-approaching-obamacare-premium-tax-moratorium?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001
ACA: 4 things employers should focus on this fall
Yes, employers still need to worry about the Affordable Care Act and its many rules and regulations. Read this blog post for more information.
During the coming months, employers may have questions about whether they still need to worry about the Affordable Care Act (ACA). The answer is yes; the ACA is alive and well, despite renewed legal challenges and the elimination of the individual mandate beginning next year.
While the Tax Cuts and Jobs Act reduced the tax penalty for individuals who don’t have health coverage to $0, effective for 2019, employers are still subject to penalties for failing to comply with certain ACA rules. For example, the IRS is currently enforcing “employer shared responsibility payments” (ESRP) penalties against large employers who fail to meet the ACA requirements to offer qualifying health coverage to their full-time employees. For this purpose, large employers are those with 50 or more full-time or full-time equivalent employees. Here are four things about the ACA that employers should focus on now to avoid significant financial liabilities.
1. The IRS is currently assessing penalties using 226-J letters
In 2017, the IRS began assessing ESRP penalties against large employers that failed to offer qualifying health coverage to at least 95 percent of their full-time employees. An ESRP penalty assessment comes in the form of a 226-J letter, which explains that the employer may be liable for the penalty, based on information obtained by the IRS from Forms 1095-C filed by the employer for that coverage year, and tax returns filed by the employer’s employees. The employer has only 30 days to respond to the 226-J letter, using IRS Form 14764, which is enclosed with the 226-J letter. The employer must complete and return IRS Form 14765 to challenge any part of the assessment.
The short timeframe for responding to a 226-J letter means that staff who are likely to be the first to receive communications from the IRS should have a plan in place to react quickly. Training for staff should include information about who to notify and what documentation to keep readily available to support an appeal. Not responding to the IRS 226-J letter will result in a final assessment of the proposed penalty. These penalties can be significant. In the worst case, an employer with inadequate health coverage could pay for the cost of the coverage, as well as penalties of $2,000/year (as indexed) for every full time employee (less 30), even those who received health coverage from the employer.
Depending on the employer’s response to the initial assessment, the IRS will then send the employer one of four types of 227 acknowledgment letters. If the employer disputes the penalty, the IRS could accept the employer’s explanation and reduce the penalty to $0 (a 227-K letter). But if the IRS rejects any part of the employer’s response, the employer will receive either a 227-L letter, with a lower penalty amount, or a 227-M letter, a notice that the amount of the initial assessment hasn’t changed. These letters will explain steps the employer has to take to continue disputing the assessment, including applicable deadlines. The next phase of the appeal might include requesting a telephone conference or meeting with an IRS supervisor, or requesting a hearing with the IRS Office of Appeals.
2. ACA reporting requirements and penalties still apply
Along with the ESRP penalties, the Form 1094-C and 1095-C reporting requirements still apply to large employers. The IRS uses information on Forms 1095-C in applying the ESRP rules and deciding whether to assess penalties against the reporting employer. Large employers must file Forms 1095-C every year with the IRS and send them to full-time employees in order to document compliance with the ACA requirement to offer qualified, affordable coverage to at least 95 percent of full-time employees. Technically, the forms are due to employees by January 31, and to the IRS by March 31, each year, to report compliance for the prior year. In the past, the IRS has extended the deadline for providing the forms to employees, but not the deadline for filing with the IRS.
Penalties can apply if an employer fails to file with the IRS or provide the forms to employees, and the penalty amount can be doubled if the IRS determines that the employer intentionally disregarded the filing requirement. These penalties can apply if an employer fails to file or provide the forms at all, files and provides the forms late, or if the forms are timely filed and provided, but are incorrect or incomplete.
In some instances, the IRS has assessed ESRP penalties based on Form 1095-C reporting errors. So, in addition to the reporting-related penalties, inaccurate information on Forms 1095-C can lead to erroneous ESRP assessments that the employer will then need to refute, using the IRS forms and procedures described above.
Employers should carefully monitor their ACA filings and reports, and consider correcting prior forms if errors are discovered. Employers should also continue tracking offers of coverage made for each month of 2018, to prepare for compliance with the Form 1095-C reporting requirement early in 2019.
3. “Summary of Benefits and Coverage” disclosure forms are still required
The ACA added a new disclosure requirement for group health plans, called a “Summary of Benefits and Coverage” or “SBC,” that’s intended to help employees make an “apples to apples” comparison of different benefit plan features, such as deductibles, out-of-pocket maximums, and copayments for various benefits and services. This requirement still applies, and SBCs must be provided during open enrollment, upon an employee’s initial eligibility for coverage under the plan, and in response to a request from an employee. The template SBC form and instructions for completing it were updated for coverage periods starting after April 1, 2017. For 2018, a penalty of $1,128 per participant can apply to the failure to provide an SBC as required.
4. The “Cadillac Tax” has not been repealed
The ACA’s so-called Cadillac tax — an annual excise tax on high-cost health coverage — was initially scheduled to take effect in 2018. The Cadillac tax has been repeatedly delayed, and the federal budget bill passed in January delayed it again through December 31, 2021. Despite the repeated delays, the Cadillac tax has not been repealed and is currently scheduled to apply to health coverage offered on or after January 1, 2022. This might be an issue to consider for employers who are negotiating collective bargaining agreements in 2018 that include terms for health benefits extending beyond 2021.
While uncertainty continues to surround the ACA, employers should remain aware of continuing compliance requirements to avoid the potentially significant penalties that remain in effect under the ACA.
Boyette, J; Masson, L (21 August 2018) "ACA: 4 things employers should focus on this fall" (Web Blog Post). Retrieved from https://www.benefitspro.com/2018/08/21/aca-4-things-employers-should-focus-on-this-fall/