‘Where’s My 1095?’ Addressing Tax Filing Confusion
Many employees are confused over how to report that they received health coverage when filing their income tax returns this tax season, the first in which they’re required to affirm that they had Affordable Care Act (ACA)-compliant coverage throughout the year or risk penalties under the individual coverage mandate.
Much of this confusion involves Form 1095-B (Health Coverage) and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage).
“There are two different 1095 forms that an employee or former employee might get, depending on how coverage was provided,” explained Mike Chittenden, a counsel at Miller & Chevalier in Washington, D.C. “If it’s fully insured coverage from a large employer”—with 50 or more full-time employees or equivalents, refered to as an applicable large employer (ALE)—“then they’ll receive a Form 1095-C from their employer and a Form 1095-B from the insurance company. If it’s self-insured coverage from an employer, they’ll just receive a 1095-C that combines the information that would otherwise appear on both forms.”
These forms are also filed with the IRS by large employers; Forms 1094-B and 1094-C are transmittal forms submitted to the IRS along with Forms 1095-B and 1095-C, respectively.
For small businesses with fewer than 50 full-time employers or equivalents that provide employees with an ACA-compliant group plan, the rules are a bit different. If fully insured (as most small companies are), the insurance company that provides coverage is required to send enrollees a copy of Form 1095-B and to submit Forms 1995-B (along with transmittal Form 1094-B) to the IRS in order to report minimum essential coverage.
If a small company is self-insured and provides coverage, it must provide employees and the IRS with Form 1095-B. But small business that offer insurance are not required to send Form 1095-Cs to employees or to the IRS.
| Fewer than 50 full-time employees/equivalents (non-ALEs) | 50 or more full-time employees/equivalents (ALEs) | |
| No coverage offered | Not subject to reporting | |
| Fully insured plan | Insurance company completes Forms 1094-B and 1095-B | Employer completes Forms 1094-C and 1095-C (Parts l and ll only) |
| Self-insured plan | Employer completes Forms 1094-B and 1095-B | Employer completes Forms 1094-C and 1095-C (Parts l, ll and lll) |
Originally, these forms were intended to be given to employees or former employees by Feb. 1 (as Jan. 31 fell on a Sunday this year), along with Form W-2. Filers would then use them when completing Line 61 of their individual tax returns, showing that they had qualifying health coverage from their employer—referred to as minimum essential coverage—during the year. The form could be shared with tax preparers and retained with other tax documents.
But as many employers seemed unlikely to meet this deadline, the IRS issued Notice 2016-4 at the end of 2015, extending the due date for providing employees with Forms 1095-B and 1095-C until March 31, and extended other ACA reporting deadlines as well:
| Forms | Previous IRS Due Date | New IRS Due Date |
| Forms 1095-B and 1095-C due to employees. | Feb. 1, 2016 | March 31, 2016 |
| Forms 1094-B, 1095-B, 1094-C and 1095-C to be filed with the IRS if filing on paper (fewer than 250 employees). | Feb. 29, 2016 | May 31, 2016 |
| Forms 1094-B, 1095-B, 1094-C and 1095-C to be filed with the IRS if filing electronically. | March 31, 2016 | June 30, 2016 |
| Source: ADP, based on IRS Notice 2016-4 and IRS Tax Tip 2016-27. | ||
Tax Filing Conundrum
The problem is that many employees had been told that they would need these forms to prepare their 2015 income taxes. Many even believed, incorrectly, that Form 1095s were to be filed with their tax returns, along with their Form W-2s.
To mitigate these concerns, in January the IRS updated its webpage with Questions and Answers about Health Care Information Forms for Individuals. In Q&A number 3, the IRS answers the question, “Must I wait to file until I receive these forms?” as follows:
If you are expecting to receive a Form 1095-A [for those enrolled in a nongroup plan through the ACA’s Health Insurance Marketplace], you should wait to file your 2015 income tax return until you receive that form. However, it is not necessary to wait for Forms 1095-B or 1095-C in order to file.
Some taxpayers may not receive a Form 1095-B or Form 1095-C by the time they are ready to file their 2015 tax return. While the information on these forms may assist in preparing a return, they are not required. Individual taxpayers will generally not be affected by this extension and should file their returns as they normally would.
Like last year, taxpayers can prepare and file their returns using other information about their health insurance. You should not attach any of these forms to your tax return.
But employees don’t typically read the latest IRS updates posted online. Employers, therefore, should inform workers to expect these forms by March 31, and assure them they may go ahead and file their taxes—and collect any refunds that may be coming their way—without waiting until the form is in their hands.
Filing Without Form 1095
“While the form is helpful, obviously, in that it gives you all the information you need in one place, most employees won’t need the form to complete their taxes,” Chittenden explained. “For example, if an employee worked for the same company and had coverage all year, then they can go ahead and complete their taxes and check the box that indicates coverage all year. Similarly, if they changed jobs but had coverage under their old and their new employer without a gap, they also can check the box saying ‘yes.’ You don’t have to attach a copy of the form to your return, whether you’re filing paper returns or filing electronically. So you don’t actually need Form 1095-B or Form 1095-C to complete your tax return.”
Given the deadline extension for providing these forms, “employees should be reassured that they don’t need them to complete their taxes, and employers should be telling them that,” Chittenden said.
Employers should also be prepared for questions when employees do receive their 1095s in March. Many who have already submitted their returns may worry that having done so without the form will require filing a corrected return.
Ask HR
If employees think they might have had a gap in health coverage but aren’t sure, they still don’t necessarily need the form. “They could look at their pay stubs to see if they include information about coverage—for example, if there are deductions in each month for coverage, then it’s a pretty safe bet that they probably had coverage in each month,” said Chittenden. “They can also go to the employer and ask HR, which can give them the answer about whether or not they had coverage.”
ACA reporting has been a challenge for many employers, and “they’re doing their best to get these forms out as quickly as they can,” said Chittenden. Due to the rush, “employees may subsequently receive corrected forms, if the employer determines later that they were inaccurate, so that’s something they should be aware may be coming. And employers should be aware that they have an obligation to correct incorrect forms.”
Penalties Reduced If Timely Correction Made
The penalty for not filing an information return with the IRS generally is $250 for each return. The penalty for providing an incorrect statement to employees/enrollees is $250 for each erroneous statement. Since there are separate penalties for returns filed with the IRS and for statements furnished to individuals, filing failures could easily result in “double” penalties.
The IRS has provided short-term relief from reporting penalties for 2015 filings, as long as the employer has made a good faith effort to comply with the reporting requirements, and has filed returns and provided statements on time. However, even employers that were late might be eligible for penalty relief if the IRS determines there was reasonable cause,
Employers advised to prepare for questions on ACA reporting forms
Original post by Andrea Davis, ebn.benefitnews.com
As employers prepare to distribute Forms 1095 to employees by the newly extended IRS deadline of March 31, they should brace for increased questions from employees about the new forms.
In Notice 2016-4, issued by the IRS on Dec. 28, the agency extended the deadlines for both providing individuals with the reporting forms required as part of the Affordable Care Act and for filing them with the IRS, although it also said “employers and other coverage providers are encouraged to furnish statements and file the information returns as soon as they are ready.”
In the year-end notice, “the IRS indicated to employers that there’s going to be no more extensions,” says Laura Kerekes, chief knowledge officer with ThinkHR Corporation. “This is already more generous than what the initial filing extension was. The feeling is that you better get these done and into the government.”
The IRS notice also provides guidance to those who might not receive a 1095-C by the time they file their 2015 tax returns, saying people can rely on information they’ve already received from their employer outlining whether they’re enrolled in employer-sponsored coverage or not.
“That’s pretty important for employers to just make note of and maybe get ahead of with communication to their employees to say the filing deadlines have been extended so the company will not have your 1095-C done,” says Kerekes, adding employers can let employees know “this is the information we've already provided you, you can rely on it when you're working on your taxes and filing by your April 15 deadline.”
And while employers with more than 50 full-time employees need to compile data for the new forms to demonstrate employee healthcare coverage offerings under the ACA, two-in-five employers say they are unfamiliar with these forms altogether, finds a recent study from ADP.
“The good news is that 60% were highly or very familiar with the 1094-C and were working on it,” says Vic Saliterman, senior vice president and general manager of ADP’s healthcare reform business. “The fact that, given the nature of the way the law is written and the penalty, 40% were not familiar [with the forms] was certainly concerning.”
More than half (52%) of midsized businesses and 45% of large employers are unsure if they’re at risk of violating ACA compliance requirements this year and nearly one-in-five employers think they are at risk of not complying with Form 1095-C requirements, according to the ADP report.
IRS releases final rule on premium tax credits, notice addressing employer coverage
Original post by Timothy Jost, healthaffairs.org
Implementing Health Reform. On December 16, 2015, the Internal Revenue Service (IRS) released a final regulation containing a number of premium tax credit eligibility provisions. Several of these concern the question of when an employer-sponsored health benefit plan offers affordable coverage that meets the minimum value requirement, but the rule also addresses other miscellaneous issues.
At the same time the IRS released a long and complicated notice addressing various issues that have arisen under the Affordable Care Act (ACA) with respect to employer-sponsored coverage, focusing particularly on account-based employee benefits such as section 125 cafeteria plans and health reimbursement arrangements.
Premium Tax Credit Final Rule
The rule finalizes a minimum value rule proposed over two years ago in May of 2013. The IRS had also recently proposed additional regulatory provisions relating to minimum value, while Department of Health and Human Services regulations address other issues related to minimum value. Parts of the earlier proposed rules are finalized in this rule, and other parts remain to be finalized later.
Premium Tax Credit Eligibility
The final rule begins by cleaning up one premium tax credit eligibility issue that has nothing to do with minimum value of employer-sponsored coverage. Eligibility for premium tax credits is based on household income, including the income of children or other members of the family who are required to file tax returns. Under certain circumstances parents are allowed to include their children’s income in their tax returns.
The regulatory language clarifies that when a parent does this, the household’s income includes the child’s gross income included on the parent’s return. The amount included for determining tax credit eligibility, however, is the child’s modified adjusted gross income (MAGI), which is not necessarily the amount reported as gross income on the tax return. MAGI would also include, for example, the child’s tax exempt interest and nontaxable Social Security income. The final rule clarifies how this is to be handled.
The rule next clarifies how wellness incentives are handled for determining the affordability of coverage for purposes of premium tax credit eligibility. Premium tax credits are not normally available to individuals who are offered health insurance coverage by their employer. Employees may, however, be eligible for premium tax credits if the employer coverage does not provide “minimum value” (MV) or if the employer coverage is “unaffordable.” Generally, a minimum value plan must have an actuarial value of at least 60 percent and cover substantial hospital and physician services. To be “affordable” a plan must cost no more than 9.56 percent (for 2015) of an employee’s MAGI. An employer that offers a health plan that fails to provide MV or that is unaffordable may also be assessed a penalty if one or more of its employees turns to the exchange for premium tax credits.
Under the ACA, employers can offer wellness incentives that reduce the cost of the employee contribution or cost-sharing for program participants. The question arises, therefore, whether affordability and minimum value should be determined with or without the application of wellness incentive premium and cost-sharing reductions. The final regulations provide that affordability and minimum value should be determined by assuming that employees fail to qualify for the wellness incentive premium or cost-sharing reductions with one exception — if the wellness incentive relates to tobacco use affordability will be determined based on the assumption that the employee qualifies for the incentive and is thus not subject to the tobacco use surcharge.
Extension Of The ‘Family Glitch’
The final regulation proceeds, however, to extend the “family glitch.” One of the most criticized IRS rules implementing the ACA provides that if an employer offers an employee affordable sole-employee coverage, the employee’s entire family is ineligible for premium tax credits even though employer-sponsored family coverage is unaffordable.
Under the minimum value final rule, if an employee uses tobacco and does not join a tobacco cessation program, and thus coverage is in fact unaffordable with the tobacco surcharge or does not offer minimum value, not only the employee, but also the employee’s entire family, is ineligible for premium tax credits as long as coverage would have been affordable or offer minimum value had the employee complied with the smoking cessation program. This is true even if no one else in the family smokes.
Health Reimbursement Arrangements
The final regulation next addresses the effect of health reimbursement arrangements (HRAs) on affordability. Amounts newly made available to an employee through an HRA that is integrated with ACA-compliant employer-sponsored health coverage when the employee may use the HRA to pay premiums are counted toward an employee’s required contribution to determine affordability. Amounts newly made available to an employee through an HRA that is integrated into with eligible employer-sponsored coverage that an employee may only use to reduce cost-sharing is counted toward determining minimum value. If HRA contributions may be used either to cover premiums or reduce cost-sharing, they are considered for determining affordability and not minimum value.
HRA contributions, however, are only taken into account if the HRA and the primary employer-sponsored coverage are offered by the same employer. They are also taken into account for determining affordability or minimum value if the amount of the annual contribution is determinable within a reasonable time before an employee must decide whether or not to enroll.
Cafeteria Plans
The final rule also provides that employer contributions to flex arrangements under section 125 cafeteria plans are considered for determining affordability and minimum value if 1) the employer contribution cannot be taken as a taxable benefit, 2) it may be used to pay for minimum essential employer coverage, and 3) it may only be used to pay for medical care, as opposed to other benefits like dependent care that can be paid for under a section 125 plan. The guidance also released on December 16 discusses HRAs and 125 plans in much greater detail, and is examined below.
Continuation Coverage Eligibility And Tax Credits
The rules next address the effect on eligibility of former employees and retirees for continuation coverage under federal or state law, such as Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage, on eligibility for premium tax credits. The rule provides that eligibility for continuation coverage does not disqualify former employees or retirees, or their dependents, from premium tax credit eligibility unless the individual actually enrolls in the coverage. If continuation coverage is offered to current employees because of a reduction in hours, however, it will disqualify the employee from premium tax credits if it is affordable and offers minimum value. Of course, continuation coverage offered current part-time employees will often not be affordable.
Tax Credits And Coverage For Partial Months
The final rule concludes by addressing premium tax credit issues that arise when an individual is enrolled in coverage for a partial month. When a child is born, adopted, or placed with a family for adoption or foster care, or placed by court order, that child can be covered as of the date of birth, adoption, placement, or the order. The rule clarifies that when this happens, the child is treated as enrolled from the first day of the month for purposes of determining premium tax credit eligibility, even though the child is enrolled during the middle of the month. The adjusted monthly premium is determined as if all members of the coverage family were enrolled as of the first of the month in this situation.
The rule next addresses how premium tax credits are calculated where there is a partial months of coverage, which can occur when a child joins the plan mid-month by birth, adoption, placement or court order or when coverage is terminated mid-month, for example by a death. In this situation, the premium tax credit covers the lesser of the actual amount of the pro-rated premium charged for the month (taking into account any premium refunds) or the excess of the benchmark plan premium for a full month of coverage over the full amount that the eligible household would be required to contribute for coverage given its income level.
Thus if a taxpayer has a $500 premium and would normally be entitled to a premium tax credit of $300 based on a $450 benchmark premium and a $150 contribution amount, and the taxpayer dies mid-month and is refunded $250, the taxpayer would be entitled to a $250 premium tax credit based on his or her actual expenditure, but if the taxpayer is refunded $150, the taxpayer would be entitled to a $300 tax credit based on the benchmark plan cost.
The final rule provides that if family members live in different states the benchmark plan premium is determined by summing the benchmark premiums for the different states as they apply to the family members in each state. The rule updates the table of percentages, which determines how much individuals must contribute of their own income toward the cost of premiums to be eligible for premium tax credits given their income. And, finally, the rule analyzes how qualified health plan premiums and benchmark plan premiums should be allocated for determining premium tax credit eligibility when either the premiums of a plan in which an individual is enrolled or a state’s benchmark plan covers services that are not essential health benefits and thus not eligible for premium tax credit payments.
IRS Notice 2015-87
The notice (IRS Notice 2015-87) addresses a range of issues relating to the ACA and employer coverage, elaborating on some issues addressed by the final rule. Many of the questions it raises elaborate on IRS Notice 2013-54, issued in 2013. The notice states that a number of these issues will be addressed by future rulemaking and requests comments. It clarifies existing requirements as to some issues and allows plans a grace period before employers must come into compliance. The notice also, however, allows employees to claim the benefit of some of the requirements even though employers have not yet come into compliance.
Health Reimbursement Arrangements
The notice begins by addressing a series of issues raised by health reimbursement arrangements (HRAs). It first clarifies that an HRA that covers only former employees or retirees is not required to be integrated with an employee-sponsored plan that meets ACA requirements. A former employee covered by such an HRA, however, is ineligible for premium tax credits as long as funds remain available in the HRA.
If an HRA covers current employees, a former employee who is no longer covered by the group health coverage that must be integrated with an HRA for the HRA to comply with ACA requirements may not use funds remaining in his or her HRA to purchase individual coverage. Amounts credited to an HRA prior to January 1, 2013, or during 2013 under terms in effect prior to January 1, 2013, may, however, be used for medical expenses under the terms then in effect even though those terms do not comply with ACA requirements that went into effect in 2014.
The notice provides that HRAs available to cover medical expenses of an employee’s spouse or children (family HRAs) may not be integrated with employee-only coverage but must be integrated with coverage in which the dependents are enrolled to comply with ACA requirements. Recognizing that many employer plans do not conform to this requirement, the IRS is allowing plans a grace period to come into compliance with this requirement.
Under earlier guidance, the IRS had made it clear that HRAs could not be used to purchase individual health insurance coverage. This guidance clarifies that HRAs can be used to pay the premiums for excepted benefit coverage, such as dental or vision plans. The notice further clarifies that section 125 cafeteria plans cannot be used to purchase individual coverage, even if the 125 plan is funded fully by employee contributions.
The Notice explains at great length and in detail how HRAs and flex contributions to a section 125 cafeteria plan are treated for determining affordability and minimum value of employer-sponsored coverage. This issue is also addressed by the rule and discussed above. The notice offers several examples of how these rules are applied.
Flex Plans And Opt-Out Payments
One of the requirements of the rule and notice is that employer contributions to flex plans will only be considered for determining affordability or minimum value of employer coverage if the flex plan can only be used for health spending. Solely for purposes of determining affordability for application of the employer mandate (which imposes a penalty of employers who do not offer affordable, minimum value coverage if their employees receive premium tax credits) and for employer reporting requirements, contributions to flex accounts that can be used for non-health as well as health purposes will be considered to reduce employee contributions for plan years beginning before January 1, 2017 for arrangements adopted on or before December 16, 2015. However, they will not be considered for determining affordability of employer coverage for an employee either for determining liability under the individual responsibility provision or eligibility for premium tax credits.
If an employer offers an employee payments that are available only to an employee if the employee declines health insurance coverage (an opt-out payment), the IRS will consider the opt-out payment as an additional charge for the coverage for determining its affordability for application of the employer mandate penalty. The employee has the option of receiving additional salary for foregoing coverage, and thus is being charged the amount of the additional salary if he or she accepts coverage.
The IRS intends to issue a rule on this issue, and might treat opt-out payments differently if they are subject to additional requirements, such as proof of coverage under a spouse’s plan. The IRS will offer a transitional period for plan years beginning before January 1, 2017 based on arrangements established on or before December 16, 2015, for purposes of the employer mandate penalty and employer reporting, but individual taxpayers may consider opt-out payments as increasing the cost of coverage for application of the individual mandate or premium tax credit eligibility requirements.
Complex issues are presented by the McNamara-O’Hara Service Contract Act and the Davis-Bacon and related acts, which require federal contractors to pay prevailing wages and fringe benefits or cash out fringe benefits for workers. Until these issues are resolved employers may for purposes of the employer mandate and reporting requirements consider cash payments in lieu of fringe benefits as increasing the affordability of coverage, although employees are not required to consider the payments as making coverage more affordable for purposes of the individual mandate affordability exemption or premium tax credit eligibility. Recognizing that the disconnect between employer reporting requirements and employee premium tax credit eligibility requirements during transitional periods for this and other requirements may cause difficulties for employees in establishing tax credit eligibility, the notice urges employers to work with employees to provide necessary information.
Affordability Under The Employer Mandate
For purposes of the employer mandate affordability requirement and related regulatory requirements, including affordability safe harbors, affordability of coverage is defined as costing no more than 9.5 percent of household income (or for safe harbors, 9.5 percent of W-2 or hourly wages or the poverty level). The 9.5 standard is adjusted annually and is set at 9.56 percent for 2015 and 9.66 percent for 2016. The notice makes clear that this adjustment applies to all provisions that use the 9.5 percent standard.
The notice also provides the inflation updates for the statutory penalties under the employer mandate. The $2,000 per full-time employee penalty that applies when an employer fails to offer minimum essential coverage and an employee receives premium tax credit will increase to $2,080 for 2015 and $2,160 for 2016; while the $3,000 penalty that applies on a per-employee basis for employees who receive premium tax credits when coverage does not meet affordability or minimum value standards will increase to $3,120 for 2015 and $3,240 for 2016.
The notice provides a complex analysis of when “hours of service” that would count for crediting hours for Department of Labor regulations do or do not count as “hours of service” for calculating whether an employee is a full-time employee for purposes of the employer mandate. This analysis is beyond the scope of this post.
Service Breaks
A number of ACA rules that apply to full-time employees assume that employees are continuously employed without long breaks in service. Special rules apply for employees of educational institutions who routinely have long breaks in service between school years. Under IRS rules, employees of educational institutions cannot be treated as having terminated employment and then been rehired unless they have a break in service of at least 26 consecutive weeks.
Some educational institutions have been attempting to get around this rule by claiming that their employees are actually employed by staffing agencies with which they contract, and thus, for example, terminated at the end of the school year and rehired in the fall. The IRS is considering a rule that would provide that the educational institution exception would also apply to employees who provide services primarily to educational institutions and are not offered a meaningful opportunity to provide service during the entire year. An individual who worked in a school cafeteria nominally employed by a staffing agency rather than the school, for example, would be protected by the break in service exception unless the staffing agency offered employment in another position throughout the summer.
The notice clarifies that AmeriCorps members are not employees for purposes of the employer mandate, but that individuals offered TRICARE coverage by virtue of their employment are offered minimum essential coverage. The notice discusses how employer aggregation rules apply to government employers. It requires each separate government employer entity to have an employer identification number. The notice also discusses special rules that apply to health savings accounts contributions for individuals eligible for VA coverage and the application of COBRA continuation coverage to flexible spending account carryovers, both topics beyond the scope of this post.
Finally, the notice reiterates that the IRS will not impose penalties on employers that provide incorrect or incomplete 1094-C and 1095-C reports to employees in 2016 for 2015 coverage if they can demonstrate good faith efforts to comply with requirements. Employers who fail to file reports on a timely basis will also be provided relief from penalties if they can show reasonable cause for their failing to do so.
IRS extends due dates for ACA information reporting
Original post by Stephen Miller, shrm.org
Employers subject to the Affordable Care Act’s 2015 information reporting requirements now have extra time to give forms to employees and to file them with the government.
In Notice 2016-4, issued by the IRS on Dec. 28, the agency extended these reporting deadlines:
| Previous IRS Due Date | New IRS Due Date |
| Forms 1095-B and 1095-C were due to employees by Feb. 1, 2016 | March 31, 2016 |
| Forms 1094-B, 1095-B, 1094-C and 1095-C were required to be filed with the IRS if filing on paper by Feb. 29, 2016 | May 31, 2016 |
| Forms 1094-B, 1095-B, 1094-C and 1095-C were required to be filed with the IRS if filing electronically by March 31, 2016 | June 30, 2016 |
| Source: ADP, based on IRS Notice 2016-4. | |
• For furnishing employees with the 2015 Form 1095-B (Health Coverage) and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage), the deadline has been extended from Feb. 1, 2016, to March 31, 2016.
• For filing with the IRS the 2015 Form 1094-B (Transmittal of Health Coverage Information Returns), Form 1095-B, Form 1094-C (Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns) and Form 1095-C, the deadline has been extended from Feb. 29, 2016, to May 31, 2016 if not filing electronically, and from March 31, 2016, to June 30, 2016 if filing electronically.
Any employer filing 250 or more information returns during the calendar year must file the returns electronically. For employers with fewer than 250 returns, electronic filing is voluntary.
“Earlier guidance would have been preferred, but the last-minute relief will still be helpful for employers that have been working to understand the complexities of compiling all the information needed and completing the forms, or gathering the information needed to work with their reporting vendors,” said Ann Marie Breheny, a senior legislative adviser at Towers Watson in Arlington, Va.
The notice also provides guidance to employees who might not receive a Form 1095-B or Form 1095-C by the time they file their 2015 tax returns.
Employers Sought Extension
Employer groups had been seeking filing extensions. Because instructions for filing the reporting forms were released late in the year, “employers have been struggling with logistical issues” related to reporting, said Chatrane Birbal, the Society for Human Resource Management’s senior advisor for government relations.
The IRS deadline extension “is appreciated and will provide employers relief,” she said. “The ACA reporting forms require specific information on each employee’s insurance coverage—and their spouse’s and dependents’, if applicable—such as employer identification number, taxpayer identification number, addresses, employee’s full-time status and length of full-time status, proof of minimal essential coverage offered, coverage dates, and employees’ share of coverage premium costs. Collecting required information to ensure accurate reporting is an administrative burden for employers.”
While HR professionals have the relevant data requested, she noted, “this information is not contained in a central repository. Most employers will have to use multiple sources to obtain the data necessary to complete the reporting forms, including their benefits carrier or broker, HR information system, payroll company, time-off tracking software and other sources.”
The administrative burden and penalties related to missed deadlines and incorrect filing “will inevitably add to the employer’s cost of providing benefits to employees,” she noted.
Similarly, the American Benefits Council, in a Dec. 24 letter to IRS Commissioner John Koskinen, wrote that employers “have expressed significant concerns about their ability to furnish accurate Forms 1095-C and Forms 1095-B to employees by the Feb. 1, 2016 deadline.”
“The data that needs to be reported—particularly on the Form 1095-C—relates to information that many employers did not previously maintain in a format that facilitated reporting,” said Kathryn Wilber, senior counsel for health policy at the council. “As a result, employers’ attempts to establish systems that can accommodate the reporting requirements have generated logistical complications and we continue to hear about new difficulties from employers on a regular basis.”.
Earlier Filing Encouraged
The IRS said it is still prepared to accept filings of the information returns on Forms 1094-B, 1095-B, 1094-C and 1095-C beginning in January 2016. “Following consultation with stakeholders, however, the Department of the Treasury and the [IRS] have determined that some employers, insurers, and other providers of minimum essential coverage need additional time to adapt and implement systems and procedures to gather, analyze and report this information,” the IRS said in its notice. “Notwithstanding the extensions provided in this notice, employers and other coverage providers are encouraged to furnish statements and file the information returns as soon as they are ready.”
Employers that don’t comply with these extended due dates will be subject to penalties under ACA section 6722 or 6721 for failure to timely furnish and file, the IRS said. The agency added that even if employers or other coverage providers miss the extended due dates, they are still encouraged to furnish and file, “and the service will take such furnishing and filing into consideration when determining whether to abate penalties for reasonable cause.”
“The IRS said it will take a good-faith enforcement approach to this first year of reporting,” said Breheny. “As the deadlines approach, there have been many questions from reporting entities about these complex requirements and the systems involved, so this is a welcome development.”
Stephen Miller, CEBS, is an online editor/manager for SHRM.
IRS Issues Forms and Instructions for ACA Reporting
Originally posted on shrm.org.
In early February 2015, the IRS released draft versions of the forms that employers subject to the Affordable Care Act (ACA) “shared responsibility” mandate—sometimes referred to as “play or pay”—will be required to file in order to show that the health coverage they offer to their employees is compliant with ACA requirements. The forms implement reporting obligations under Internal Revenue Code sections 6055 and 6066, which the ACA added to the tax code.
The forms are not required to be filed by employers for tax year 2014. However, in preparation for the first required filing of these forms (in 2016 for 2015), reporting entities may, if they wish, voluntarily file.
The IRS also released a new brochure Affordable Care Act: Reporting Requirements for Applicable Large Employers, which discusses getting ready for monthly tracking and preparing to fill out new IRS forms in 2016.
The forms include:
• Form 1095-B: Health Coverage. To be filed with the IRS and provided to taxpayers by insurers, as well as by self-insured employers that are not subject to the employer "shared responsibility" mandate, to verify that individuals have minimum essential coverage that complies with the individual coverage requirements.
• Form 1095-C: Employer-Provided Health Insurance Offer and Coverage. To be filed by employers with 50 or more full-time or full-time equivalent employees to verify their compliance with the employer "shared responsibility" mandate. Form 1095-C will also be used to establish employee eligibility for premium tax credits if the employer does not offer affordable and adequate coverage.
• Form 1094-B: Transmittal of Health Coverage Information Returns and Form 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns. These are the transmittal forms that insurers and employers will use to transmit the individual 1095-Bs and 1095-Cs to the IRS.
“Insurers and self-insured health plans will provide a Form 1095-B to each of their enrollees and members, and file these forms, together with a transmittal Form 1094-B with the IRS,” explained Timothy Jost, J.D., a professor at the Washington and Lee University School of Law, in an earlier post regarding the draft forms on the Health Affairs Blog. “Large employers must provide a Form 1095-C to each employee, and transmit these, together with a transmittal [Form 1094-C] to the IRS.”
The IRS also issued instructions relating to the above forms:
• Text of Instructions for IRS Forms 1094-B and 1095-B.
• Text of Instructions for IRS Forms 1094-C and 1095-C.
“The instructions for the 1094-C and 1095-C are by far the most complex of the instructions...filling 13 pages with dense, two column, print,” noted Jost in a blog post regarding the draft versions (the final instructions reach 14 pages and are in a smaller type face, and thus even longer). “Most of the complexity derives from the options for complying with the employer mandate and the transition exceptions to that mandate that the administration has created,” Jost explained.
The forms “are identical to the draft forms released in the late summer of 2014,” Jost noted in a February 2015 blog post. “The instructions for the transmittal forms 1094-B and 1095-B are virtually identical to the draft instructions. … The final instructions for forms 1094-C and 1095-C, however, contain a number of changes from the draft instructions and should be reviewed carefully by insurers, employers, and those who advise them.”
“We hoped that the IRS was finding a way to streamline and simplify the reporting forms and instructions that employers will use in connection with the...employer and individual mandates. Those hopes were dashed...when the IRS released the final reporting forms and instructions,” stated a February 2015 alert from Lockton, an insurance brokerage. “The reporting forms and instructions remain detailed and complex, with many caveats, exceptions and special rules. Complicating this, reporting continues to be based on the calendar year, regardless of the year on which an employer’s plan operates.”
The Lockton alert further notes:
The final forms and instructions are labeled as “2014” forms, meaning they would relate to coverage during 2014. It is apparent, however, that these materials were created for the required reporting in 2016 with respect to coverage during 2015. In addition to explicitly stating that reporting with respect to 2014 is voluntary, the instructions explain how to indicate use of various transition rules that apply during 2015.
“As the forms must be filed by Feb. 28 (March 31 if filed electronically) and were just released in final form, it is very unlikely that many employers, insurers, or government programs will file for 2014,” noted Jost. “The 2015 forms are likely to be very similar, however, so it is probably important for employers and insurers to review these forms to ensure that they are on track for 2015 reporting.”
Advised a February 2015 alert from Fox Rothchild LLP, “Bear in mind that there is a considerable amount of time between now and the final filing obligation so there may be additional revisions to these instructions, or at least some further clarification. But in the meantime, read the instructions and familiarize yourself with the reporting obligations.”
Tracking and Reporting Employee Data
Companies with 100 or more full-time equivalent employees must begin complying with the ACA coverage requirements in 2015, although they will have two years to phase up to the requirement that they cover 95 percent of their workers. Companies with 50 to 99 full-time equivalent employees will have another year—until 2016—to start complying. Smaller businesses are exempt.
Under tax code sections 6055 and 6056, employers must compile monthly and report annually numerous data points to the IRS and their own employees. This data will be used to verify the individual and employer mandates under the law.
“Although required reporting under sections 6055 and 6056 will not occur until January 2016 to employees and March 2016 to the IRS, the data being reported is based on what happened during 2015,” according to an August 2014 article in HR Magazine. “Therefore, employers should have the necessary infrastructure in place to gather that information by January 2015 or very soon after.”
Given the cross-functional compliance and reporting requirements, having a multidisciplinary team in place is important, with a written workplan that specifies the responsibilities of HR, payroll, finance and other departments. The chief HR officer and the chief financial officer should coordinate their efforts and those of their staffs. Top-level executive sponsorship should ensure that all functions are working together and doing their part.
“Ideally, technology will take much of the reporting burden off of employers, automating significant portions of the data collection and reporting processes,” observed the Lockton alert, adding:
Unfortunately, technology will not produce accurate reporting without accurate data. In addition, while an employer’s current HR technology solutions may capture the information required for ACA reporting, it is unlikely that the employer has any one system that incorporates all of this information. It is also very likely that gathering the information from various sources and entering it into the required forms will be difficult and time-consuming. Employers that have not done so already will want to discuss with their third-party payroll and benefits administration vendors the extent to which they can handle the required information gathering and reporting.
| Reporting Requirement Still Applies to Mid-Size EmployersAlthough mid-size employers (between 50 and 99 full-time employees or equivalents) can take advantage of one year of transitional relief from the employer mandate requirements, delaying compliance until the first day of the employer's 2016 plan year, “these employers are still required to comply with the pay or play reporting requirement and the individual mandate reporting requirement, if the mid-size employer sponsors a self-funded group health plan,” advised law firm Miller Johnson. “In order to qualify for the transitional relief, mid-size employers must certify to the IRS that it meets the necessary requirements. Form 1094-C is used to certify that the mid-size employer meets these requirements.”
The firm added, “The good news is that these forms appear relatively simple to complete. The bad news, however, is that compiling the information necessary to complete these forms will likely impose significant administrative burdens.” |
2015 Monthly Information
“This reporting and disclosure requirement is new for employers and may catch some employers off-guard,” warned an alert by benefits consultancy Hill, Chesson & Woody, which added that the reporting requirements include collecting and disclosing:
- Social Security numbers of employees, spouses and dependents.
- Names and employer ID numbers(EINs) of other employers within the reporting employer’s controlled group of corporations for each month of the calendar year.
- Number of full-time employees for each calendar month.
- Total number of employees (full-time equivalents) for each calendar month.
- Section 4980H transition relief indicators for each calendar month.
- Employees’ share of the lowest-cost monthly premium for self-only, minimum value coverage for each calendar month.
- Applicable Section 4980H safe harbor for each calendar month.
“The first transmittal and returns will not be filed until January 2016, but much of the information must be reported for each calendar month of 2015,” the firm pointed out. “Ensuring internal time and attendance systems, record management, and payroll systems are capable of producing the required information is critical. Although there is much information left to be released by the IRS concerning the Code 6056 reporting requirement, employers subject to this requirement should begin preparing now.”
“The significant amount of information that is required to be reported to both employees and the IRS on these forms may factor in to an employer’s overall strategy for compliance with health care reform’s pay or play penalty requirement,” advised Miller Johnson.
| Steps to TakeIn light of the complexity of the new information reporting requirements, employers should take the following actions, advised McGladrey LLP in an alert:
• Learn about the new information reporting requirements and review the IRS reporting forms. • Develop procedures for determining and documenting each employee's full-time or part-time status by month. • Develop procedures to collect information about offers of health coverage and health plan enrollment by month. • Review ownership structures of related companies and engage professionals to perform a controlled/affiliated service group analysis. • Discuss the reporting requirements with the health plan's insurer/third-party administrator and the company's payroll vendor to determine responsibility for data collection and form preparation. • Ensure that systems are in place to collect the needed data for the reports. |
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| Four Steps Required Prior to ACA E-FilingFor calendar year 2015, applicable large employers must file Affordable Care Act Information Returns (Forms 1094-B, 1095-B, 1094-C and 1095-C) via paper returns by Feb. 28, 2016 or via electronic returns by March 31, 2016, reports the International Foundation of Employee Benefit Plans.
Electronic returns will be filed through the new ACA Information Returns (AIR) system. The AIR system is specifically designed for the IRS to process these new ACA forms. Other IRS e-filing systems do not support the ACA Information Returns. Prior to e-filing, applicable large employers must: (1) identify their responsible official(s) and contacts, (2) register with IRS e-services, (3) apply for the ACA Information Return Transmitter Control Code (TCC), and (4) participate in testing. |
Limited Employer Impact Likely from Gay Marriage Ruling
Originally posted by Joanne Deschenaux on June 26, 2015 on shrm.org.
All 50 states must issue marriage licenses to same-sex couples and must recognize same-sex marriages legally performed out of state, the U.S. Supreme Court ruled June 26, 2015, in a historic victory for gay civil rights (Obergefell v. Hodges, No. 14–556).
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Anthony Kennedy wrote for the majority. He was joined by the court’s liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Each of the four conservative justices who dissented from the opinion—Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas and Samuel Alito—wrote a separate opinion, saying that the court had usurped a power that belongs to the people.
Implications for Employers
The impact of this decision on many employers will be limited, Scott D. Schneider, an attorney in Fisher & Phillips’ New Orleans office, told SHRM Online.
In states where same-sex marriage is currently legal, this ruling will have no effect, he said. But in other states, “employers should sit down and ask, ‘Where do we stand in light of this ruling?’ ”
One area that may be impacted is the granting of leave under the Family and Medical Leave Act (FMLA), Schneider said. “Someone who enters into a same-sex marriage may be entitled to FMLA leave.”
Similarly, employers in states that have not allowed same-sex marriage to date should examine their medical insurance and retirement plans. Same-sex spouses may qualify as beneficiaries under these plans now, where previously they might have been legally excluded from participating.
“The bottom line is that all employer policies related to spouses should apply to same-sex marriages,” according to Nonnie Shivers, an attorney in the Ogletree Deakins Phoenix office. In addition, employers should require the same level and type of proof of a same-sex marriage as they would of any other marriage, she said.
In some ways, this will make things easier for employers, she noted. “They won’t have to try to figure out whether they need to recognize someone’s same-sex marriage performed in another state. Anyone who has entered into a same-sex marriage is protected as a spouse.”
But, as a practical matter, employers should be aware that in states that have not previously allowed same-sex marriage, things are not going to change overnight, Shivers added. “Some county clerks—the ones who issue marriage licenses—have said that they are going to wait to hear about changes from the attorney general,” she said. This means that employers should be somewhat cautious about changing certain policies. For example, if an employer has policies in place regarding domestic partnerships, it may not want to change those policies immediately, she suggested.
And she cautioned that just because the legality of same-sex marriage is now a settled issue, that doesn’t mean that it won’t sometimes be a “hot-button" issue in the workplace. Employers need to be prepared to deal with possible employee reactions—whether based on religious beliefs or other factors—to gay and lesbian employees in the workplace, she said.
Court Finds 14th Amendment Protection
Kentucky, Michigan, Ohio and Tennessee are four of the states that have defined marriage as a union between one man and one woman. Fourteen same-sex couples and two men whose same-sex partners are deceased had filed suits in federal district courts in their home states, claiming that state officials violated the 14th Amendment of the U.S. Constitution by denying them the right to marry or to have their marriages that were lawfully performed in another state given full recognition in their home state. Each district court ruled in the plaintiffs’ favor, but the 6th U.S. Circuit Court of Appeals consolidated the cases and reversed, ruling in favor of the states.
In reversing the 6th Circuit decision, the high court first examined the history of marriage as a union between two persons of the opposite sex, noting that while state officials arguing against same-sex marriage claimed that “it would demean a timeless institution if marriage were extended to same-sex couples,” the plaintiffs “far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities.”
The court then noted the changes over time in the nature of marriage—such as the decline of arranged marriages and the abandonment of the laws that declared a wife the property of her husband—noting that these changes “have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential.” These new insights “have strengthened, not weakened, the institution,” the court said.
The opinion next discussed the country’s experience with gay and lesbian rights. Well into the 20th century, many states condemned same-sex intimacy as immoral, the court noted, and homosexuality was treated as an illness. Later in the century, public attitudes shifted, allowing same-sex couples to lead more open lives. Then, questions about the legal treatments of gays and lesbians began reaching the courts, with numerous same-sex marriage cases reaching the federal courts and state supreme courts.
The Supreme Court’s majority opinion now sets forth its holding that the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a same-sex marriage performed out of state.
The court has long held that the right to marry is protected by the 14th Amendment, the opinion noted, and the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy. This is true for all persons, whatever their sexual orientation.”
EEOC Proposed Rule on Wellness and the Americans with Disabilities Act – What Employers Need to Know
Originally posted by M. Brian Magargle and Robin E. Shea on April 30, 2015 on www.thinkhr.com.
The employer community has been waiting for years to receive guidance from the Equal Employment Opportunity Commission on wellness programs and how an employer’s obligations under the Americans with Disabilities Act intersect with its rights and obligations under the Health Insurance Portability and Accountability Act (as amended by the Affordable Care Act).
The EEOC finally issued a proposed rule on April 20. The following is what employers need to know in a “Q&A” format.
What problem is the EEOC trying to resolve?
The quick answer is an apparent conflict between the ADA rules on employer “medical inquiries,” on the one hand, and the “wellness program” provisions of the HIPAA/ACA, on the other.
Title I of the ADA (the part of the ADA that applies to private sector employers) generally prohibits employers from making “medical inquiries” of current employees unless the inquiries are “job-related and consistent with business necessity” (for example, to verify the need for a reasonable accommodation). The general rule is that employers are not supposed to be asking for medical information from current employees.
There are some limited exceptions to this rule, including an exception for medical inquiries made in connection with a “voluntary wellness program.”
As employer wellness programs have become more popular, many employers began offering specific rewards or penalties to employees based on whether they participated in the programs and even on whether they achieved certain “results.” As will be discussed in more detail below, the HIPAA and the ACA specifically authorize wellness programs to offer incentives for “participation” and “outcomes” under certain circumstances. However, the question arose whether the use of such incentives would render the wellness program not “voluntary” for ADA purposes. If the wellness program was not voluntary because of the incentives, then any requests for employee medical information made in connection with the wellness program would violate the ADA.
(Title I of the ADA would not have an impact on medical inquiries made, say, to the family member of an employee who might also be eligible to participate in the employer’s wellness program.)
Thus, it was possible that an employer could offer a wellness program that was authorized and lawful under the HIPAA/ACA but still be vulnerable to charges and lawsuits under the ADA. The EEOC’s proposed rule seeks to address this problem, and for the most part, it should be welcomed by employers who offer wellness programs.
What does the proposed rule say, in a nutshell?
The proposed rule says that a wellness program can still be “voluntary” for ADA purposes if the program provides “incentives” for employees (both rewards and penalties), as long as the employer complies with the wellness incentive requirements of the HIPAA/Affordable Care Act.
There are two caveats: The wellness program would have to be associated with a group health plan (either insured or self-insured), and the EEOC proposals do not exactly match the HIPAA/ACA rules, although they are reasonably close.
Can you give us a recap of the HIPAA/ACA requirements?
Under the HIPAA/ACA scheme, there are two types of wellness programs. A “participatory” program is one that rewards employees just for participating and does not require a specific goal to be met. (An example would be an employer who reimburses employees for fitness club memberships.) Under the HIPAA/ACA, participatory programs can be offered without limitation, as long as they’re available to all similarly situated individuals.
The other type of wellness program is a “health-contingent” program. There are two types of “health-contingent” programs: (1) activity-only programs, in which the employee is rewarded for completing an activity but doesn’t have to achieve or maintain an outcome (for example, “we’ll pay you $100 if you walk a mile three days a week for a year”); and (2) outcome-based programs, in which employees are rewarded for achieving or maintaining results (for example, “we’ll pay you $100 if you keep your BMI at or below 25 for a year, or if you quit smoking”).
If the program is health-contingent, employers are allowed to offer incentives (carrots or sticks) if –
- Employees are allowed to try to qualify at least once a year,
- The total reward offered doesn’t exceed 30 percent of the total cost of employee-only coverage under the plan or the total cost of family coverage if dependents are also allowed to participate in the program (“total” means the employee’s and the employer’s share). The percentage is up to 50 percent for tobacco prevention or cessation,
- The program is reasonably designed to promote health or prevent disease,
- The full reward must be available for all similarly situated individuals, and reasonable alternatives must be offered to those who can’t qualify, and
- The availability of reasonable alternatives must be disclosed in plan materials and in any disclosure telling an individual that he or she did not meet an initial outcome-based standard.
Under the HIPAA/ACA, the 30 percent/50 percent incentive limit applies only to “health-contingent” programs. HIPAA and the ACA have no limit on rewards that apply to “participatory” programs (if the programs are available to all similarly situated individuals).
The EEOC’s proposed rule is slightly different.
How does the EEOC proposed rule contrast with the HIPAA/ACA rule?
The EEOC would allow employers to offer incentives for employee participation in wellness programs associated with group health plans if the total reward does not exceed 30 percent of the total cost of employee-only coverage under the plan for both participatory and health-contingent wellness programs. The EEOC proposed rule does not allow a 50 percent reward level for tobacco cessation programs (unless there are no associated disability-related questions or medical exams), and the total cost used in the reward calculations does not take into account family-level coverage, even where dependents can participate in the program.
In addition, the wellness program must be completely voluntary. The EEOC would define “voluntary” as follows:
- Employees aren’t required to participate in the wellness program,
- Health insurance coverage is not denied or made more difficult to get if the employee chooses not to participate (with the exception of the permitted “incentives”), and
- The employer does not take adverse action against an employee for refusing to participate . . .as this employer allegedly did.
The EEOC invites the public to comment on the proposed rule through June 19. The agency is particularly interested in comments pertaining to how much medical information an employee should be required to disclose to be eligible for an incentive, whether the rule should require that the incentives not render health insurance “unaffordable” within the meaning of the ACA, issues related to the “notice” requirement, how to treat wellness programs that are not associated with group health insurance, as well as other topics.
The employer would also be required to provide a notice “that clearly explains what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure, and the methods the covered entity will employ to prevent improper disclosure of the medical information.”
The wellness program would be required to disclose medical information to the employer only in aggregated, non-individually-identifiable form, “except as needed to administer the health plan.”
Are there any other issues to consider under the HIPAA/ACA?
Although the EEOC rule is currently in proposed form, we expect any final version to still be somewhat different from the HIPAA/ACA requirements for wellness programs. For example, one of the primary requirements of a outcome-based program under HIPAA is the ability of an employee to meet a “reasonable alternative standard” to receive the reward. Participants in the program must be clearly informed of that option, and it remains to be seen how that notification will be coordinated with the notice proposed by the EEOC. A related issue is the intersection of the “reasonable alternative standard” under HIPAA with the reasonable accommodation and interactive process obligations under the ADA. The EEOC’s Interpretive Guidance to the proposed rule says that provision of a “reasonable alternative standard” along with the required notification will generally satisfy the employer’s reasonable accommodation obligations under the ADA, but no specifics are given. Moreover, the Interpretive Guidance notes that under the ADA an employer would have to make reasonable accommodations for an employee who could not be in a “participatory” program because of a disability, even though the HIPAA/ACA rules do not require a “reasonable alternative standard” for participatory programs.
Also, details about wellness programs commonly appear in ERISA-governed summary plan descriptions, so will the EEOC rules also have to appear there as well?
There are similarities between the employee benefits issues affecting wellness programs, on the one hand, and the ADA and employee-relations issues, on the other, but the differences are equally important and will hopefully be addressed by the EEOC in the final rules expected to be issued later this year.
What should employers do?
The proposed rule describes certain employer “best practices,” as follows:
- Employers should ensure that employees who handle medical information know their obligations under the laws.
- Employers should adopt privacy policies for collection and handling of employee medical information, assuming that they have not already done so.
- If medical information is stored electronically, it should be encrypted and other security measures implemented such as password protection and firewalls.
- If possible, employees who handle medical information should not be “making decisions related to employment, such as hiring, termination, or discipline.” If this is not possible, then the employer should ensure that there is no discrimination based on an employee’s disability.
- Breaches of confidentiality should be promptly and effectively addressed, and the affected employees should be informed immediately.
- Employers should take appropriate action against an employee who breaches confidentiality, and should “consider discontinuing” their relationships with vendors who breach confidentiality.
Why doesn’t the EEOC proposed rule have a 50-percent incentive for tobacco-related programs, since the HIPAA/ACA does?
The EEOC explained that it did not include the 50 percent incentive for tobacco programs because, it said, most of those programs do not seek employee medical information at all. If not, there would be no ADA issue. But if a tobacco program does seek such information (for example, through testing for nicotine, or monitoring blood pressure), then the tobacco program would have to be included in computing the 30-percent limit for incentives.
Did the proposed rule address the employer’s right to get medical information from an employee’s family members, who may be covered under the employee’s health insurance and might be eligible for participation in the wellness program?
No, because Title I of the ADA applies only to employers and employees. Medical inquiries about an employee’s family member would, of course, be covered under the Genetic Information Nondiscrimination Act, which is also enforced by the EEOC. The EEOC says it will issue guidance on wellness and the GINA “in future EEOC rulemaking.”
Did the proposed rule contain anything else of interest?
Yes. The EEOC has explicitly disagreed with a wellness/ADA decision from the U.S. Court of Appeals for the Eleventh Circuit, Seff v. Broward County. At issue in the Seff case was a $20-per-paycheck penalty that employees had to pay if they chose not to participate in the county’s wellness program. The court found that the county’s program fell within a “safe harbor” in the ADA, which provides that a covered entity is not prohibited “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” Because the program fell within the safe harbor, the court said, it was irrelevant whether the program was “voluntary” or whether medical inquiries made in connection with the program violated the ADA.
The EEOC’s position is that this “safe harbor” provision in the ADA does not apply to wellness programs.
Employers who operate in the Eleventh Circuit states of Alabama, Florida, or Georgia can continue to follow Seff for the time being. However, employers who operate in other states may choose to follow the EEOC’s position once its proposal becomes final. The conflict between the EEOC and the Eleventh Circuit will probably be resolved eventually by the courts.
High-Deductible Health Plans Cut Costs, At Least For Now
Originally posted on March 26, 2015 on www.npr.org.
Got a high-deductible health plan? The kind that doesn't pay most medical bills until they exceed several thousand dollars? You're a foot soldier who's been drafted in the war against high health costs.
Companies that switch workers into high-deductible plans can reap enormous savings, consultants will tell you — and not just by making employees pay more. Total costs paid by everybody — employer, employee and insurance company — tend to fall in the first year or rise more slowly when consumers have more at stake at the health-care checkout counter whether or not they're making medically wise choices.
Consumers with high deductibles sometimes skip procedures, think harder about getting treatment and shop for lower prices when they do seek care.
What nobody knows is whether such plans, also sold to individuals and families through the health law's online exchanges, will backfire. If people choose not to have important preventive care and end up needing an expensive hospital stay years later as a result, everybody is worse off.
A new study delivers cautiously optimistic results for employers and policymakers, if not for consumers paying a higher share of their own health care costs.
Researchers led by Amelia Haviland at Carnegie Mellon University found that overall savings at companies introducing high-deductible plans lasted for up to three years afterwards. If there were any cost-related time bombs caused by forgone care, at least they didn't blow up by then.
"Three years out there consistently seems to be a reduction in total health care spending" at employers offering high-deductible plans, Haviland said in an interview. Although the study says nothing about what might happen after that, "this was interesting to us that it persists for this amount of time."
The savings were substantial: 5 percent on average for employers offering high-deductible plans compared with results at companies that didn't offer them. And that was for the whole company, whether or not all workers took the high-deductible option.
The size of the study was impressive; it covered 13 million employees and dependents at 54 big companies. All savings were from reduced spending on pharmaceuticals and doctor visits and other outpatient care. There was no sign of what often happens when high-risk patients miss preventive care: spikes in emergency-room visits and hospital admissions.
The suits in human resources call this kind of coverage a "consumer-directed" health plan. It sounds less scary than the old name for coverage with huge deductibles: catastrophic health insurance.
But having consumers direct their own care also requires making sure they know enough to make smart choices. That means getting vaccines and skipping dubious procedures like an expensive MRI scan at the first sign of back pain.
Not all employers are doing a terrific job. Most high-deductible plan members surveyed in a recent California study had no idea that preventive screenings, office visits and other important care required little or no out-of-pocket payment. One in five said they had avoided preventive care because of the cost.
"This evidence of persistent reductions in spending places even greater importance on developing evidence on how they are achieved," Kate Bundorf, a Stanford health economist not involved in the study, said of consumer-directed plans.
"Are consumers foregoing preventive care?" Bundorf asks. "Are they less adherent to [effective] medicine? Or are they reducing their use of low-value office visits and corresponding drugs or substituting to cheaper yet similarly effective prescribed drugs?"
Employers and consultants are trying to educate people about avoiding needless procedures and finding quality caregivers at better prices.
That might explain why the companies offering high-deductible plans saw such significant savings even though not all workers signed up, Haviland said. Even employees with traditional, lower-deductible plans may be using the shopping tools.
The study doesn't close the book on consumer-directed plans.
"What happens five years or 10 years down the line when people develop more consequences of reducing high-value, necessary care?" Haviland asked. Nobody knows.
And the study doesn't address a side effect of high-deductibles that doctors can't treat: pocketbook trauma. Consumer-directed plans, often paired with tax-favored health savings accounts, can require families to pay $5,000 or more per year in out-of-pocket costs.
Three people out of 5 with low incomes and half of those with moderate incomes told the Commonwealth Fund last year their deductibles are hard to afford.
As in all battles, the front-line infantry often makes the biggest sacrifice.
Supreme Court debates future of Affordable Care Act
Originally posted on March 5, 2015 by Ariane de Vogue on www.wqad.com.
WASHINGTON (CNN) — The future of health care in America is on the table — and in serious jeopardy — Wednesday morning in the Supreme Court.
After more than an hour of arguments, the Supreme Court seemed divided in a case concerning what Congress meant in one very specific four-word clause of the Affordable Care Act with respect to who is eligible for subsidies provided by the federal government to help people buy health insurance.
If the Court ultimately rules against the Obama administration, more than 5 million individuals will no longer be eligible for the subsidies, shaking up the insurance market and potentially dealing the law a fatal blow. A decision likely will not be announced by the Supreme Court until May or June.
All eyes were on Chief Justice John Roberts — who surprised many in 2012 when he voted to uphold the law — he said next to nothing, in a clear strategy not to tip his hand either way.
“Roberts, who’s usually a very active participant in oral arguments, said almost nothing for an hour and a half,” said CNN’s Supreme Court analyst Jeffrey Toobin, who attended the arguments. “(Roberts) was so much a focus of attention because of his vote in the first Obamacare case in 2012 that he somehow didn’t want to give people a preview of how he was thinking in this case. … He said barely a word.”
The liberal justices came out of the gate with tough questions for Michael Carvin, the lawyer challenging the Obama administration’s interpretation of the law, which is that in states that choose not to set up their own insurance exchanges, the federal government can step in, run the exchanges and distribute subsidies.
Carvin argued it was clear from the text of the law that Congress authorized subsidies for middle and low income individuals living only in exchanges “established by the states.” Just 16 states have established their own exchanges, but millions of Americans living in the 34 states are receiving subsidies through federally facilitated exchanges.
But Justice Elena Kagan, suggested the law should be interpreted in its “whole context” and not in the one snippet of the law that is the focus of the challengers.
“We look at the whole text. We don’t look at four words,” she said. Kagan also referred to the legal challenges to the law as the “never-ending saga.”
Justice Sonia Sotomayor was concerned that in the states where the individuals may not be able to receive subsidies, “We’re going to have the death spiral that this system was created to avoid.”
And Sotomayor wondered why the four words that so bother the challengers did not appear more prominently in the law. She said it was like hiding “a huge thing in a mousetrap.”
“Do you really believe that states fully understood?” she asked, Carvin, that those with federally run exchanges “were not going to get subsidies?”
Justice Ruth Bader Ginsburg suggested the four words at issue were buried and “not in the body of the legislation where you would expect to find” them.
Justice Anthony Kennedy asked questions that could be interpreted for both sides, but he was clearly concerned with the federalism aspects of the case.
“Let me say that from the standpoint of the dynamics of Federalism,” he said to Carvin. “It does seem to me that there is something very powerful to the point that if your argument is accepted, the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.”
He grilled Carvin on the “serious” consequences for those states that had set up federally-facilitated exchanges.
“It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument,” Kennedy said.
The IRS — which is charged with implementing the law — interprets the subsidies as being available for all eligible individuals in the health exchanges nationwide, in both exchanges set up by the states and the federal government. In Court , Solicitor General Donald B. Verrilli, Jr. defended that position. He ridiculed the challengers argument saying it “revokes the promise of affordable care for millions of Americans — that cannot be the statute that Congress intended.”
But he was immediately challenged by Justice Antonin Scalia.
“It may not mean the statute they intended, the question is whether it’s the statute they wrote,” he said.
Although as usual, Justice Clarence Thomas said nothing, Justice Samuel Alito was also critical of Verrilli’s argument. He said if it were true that some of the states were caught off guard that the subsidies were only available to those in state run exchanges, why didn’t more of them sign amicus briefs. And he refuted the notion that the sky might fall if the challengers were to prevail by saying the Court could stay any decision until the end of the tax season.
On that point Scalia suggested Congress could act.
“You really think Congress is just going to sit there while all of these disastrous consequences ensue?” he asked.
Verrilli paused and to laughter said, “Well, this Congress? ”
Kennedy did ask Verrilli a question that could go to the heart of the case wondering if it was reasonable that the IRS would have been charged with interpreting a part of the law concerning “billions of dollars” in subsidies.
Only Ginsburg brought up the issue of standing — whether those bringing the lawsuit have the legal right to be in Court which suggested that the Court will almost certainly reach the mandates of the case.
President Barack Obama has expressed confidence in the legal underpinning of the law in recent days.
“There is, in our view, not a plausible legal basis for striking it down,” he told Reuters this week.
Wednesday’s hearing marks the third time that parts of the health care law have been challenged at the Supreme Court.
In this case — King v. Burwell — the challengers say that Congress always meant to limit the subsidies to encourage states to set up their own exchanges. But when only 16 states acted, they argue the IRS tried to move in and interpret the law differently.
Republican critics of the law, such as Texas Sen. Ted Cruz, filed briefs warning that the executive was encroaching on Congress’ “law-making function” and that the IRS interpretation “opens the door to hundreds of billions of dollars of additional government spending.”
In a recent Washington Post op-ed, Orrin Hatch, R-Utah, and two other Republicans in Congress said that if the Court rules in their favor, “Republicans have a plan to protect Americans harmed by the administration’s actions.”
Hatch said Republicans would work with the states and give them the “freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices.”
In Court, Verrilli stressed that four words — “established by the state” — found in one section of the law were a term of art meant to include both state run and federally facilitated exchanges.
He argued the justices need only read the entire statute to understand Congress meant to issue subsidies to all eligible individuals enrolled in all of the exchanges.
Democratic congressmen involved in the crafting of the legislation filed briefs on behalf of the government arguing that Congress’ intent was to provide insurance to as many people as possible and that the challengers’ position is not consistent with the text and history of the statute.
Last week, Health and Human Services Secretary Sylvia Mathews Burwell warned that if the government loses it has prepared no back up plan to “undo the massive damage.”
EEOC Issues Proposed Rule on Employer Wellness Programs
Originally posted by Rick Montgomery, JD on April 20, 2015 on thinkhr.com.
On April 20, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. The proposed rule amends the ADA regulations to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. The EEOC will accept public comments on the proposed rule until June 19, 2015, following which final regulations will be issued.
The EEOC has released a series of 10 questions and answers which outline the issues at hand, define terms involved in the proposed rule, and explain how wellness programs interact with regulations such as the ADA, the Health Insurance Portability and Accountability Act (HIPAA), and other federal nondiscrimination laws.
Employers do not have to comply with the proposed rule at this time; however, until final regulations are formulated, employers should take a careful look at their wellness programs to ensure compliance with the ADA, as many of the requirements set forth in the proposed rule are already requirements under the law.
At this time, employers should not:
- Require employees to participate in a wellness program.
- Deny health insurance to employees who do not participate in a wellness program.
- Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.
Further, employers should ensure that all employees are equally able to participate in any wellness programs or incentives offered, and that those employees needing reasonable accommodations to participate are offered those accommodations.